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DUI Blood Testing the Unconscious Driver No Warrant Needed…Usually

In a DUI arrest, when a breath test is not available or feasible, or if the circumstances allow, law enforcement may seek a sample of the accused driver’s blood to determine a blood alcohol concentration or content (BAC). The question of whether and how the police may take the accused DUI driver’s blood has been considered by the United States Supreme Court in the last few years.

In those past cases, the Court held that an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. The Court has also has upheld the implied consent statutory scheme, warrants to secure a blood sample and warrantless blood draws in urgent situations but never considered a blood draw from an unconscious person.

Recently, the US Supreme Court considered the narrow question of whether a blood sample can be obtained when the driver is unconscious and therefore cannot be given a breath test, cannot refuse a breath test or withdraw their implied consent. Though an unconscious person cannot respond, it is not unusual in these cases that the officer does read implied consent to the knocked-out driver and the officer did in the case under consideration. The Court held that in cases of unconscious drivers, the exigent circumstances rule almost always permits a blood test without a warrant. The general rule for unconscious drivers is then that a warrant is not needed to take blood. 

The Court noted that drivers in an unconscious state are likely to be taken for medical attention and will have blood taken for diagnostic purposes.  Furthermore, the Court speculated that dispensing with the warrant requirement would lessen intrusions into the body by assuming that a second injection would be needed to get a separate legal blood test.

In the end the Court did not decide if, in fact the blood drawn in this case was appropriate, and sent the case back for further consideration. Things to consider regarding blood taken from a driver knocked unconscious now include whether the blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably believed that applying for a warrant would interfere with other pressing needs or duties such as traffic control after an accident.

As Justice Thomas pointed out, the Court gave us an ruling that says exigent circumstances are generally present except when they aren’t. We now have a general rule with exceptions that can be litigated to properly defend the DUI case. To begin strategizing with a lawyer about a DUI matter, please click, call or fill out the form.

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