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Are Blood Draws Legal?

While it is currently legal to draw someone’s blood, there is some litigation pendingabout whether or not it’s constitutional to forcibly take blood when they refuse to provide it after being arrested for DUI. Currently, it’s legal to draw blood, even if you refuse, as long as police actually get a warrant. The need for a warrant is actually fairly recent in California; for years, police officers were able to get a blood sample without one.

How long it takes for an officer to get a warrant depends on the circumstances, but the quickest that I’ve seen is about 30 minutes, because of electronics; they can send a fax into an on-duty judge and receive a faxed response as to whether or not the warrant was granted. Obviously, it can take longer, too; it depends on how fast they can get the warrant application to the judge.

When Does it Become Absolutely Necessary for Someone to Draw Blood?

In California, when you are arrested for DUI, you are required to submit toeither a blood or a breath test, according to the Vehicle Code section 23612. If a breath machine is not available for some reason, such asif there just isn’t one, or there is no officer available who is certified to administer the breath test, then you will be required to submit to the blood draw. Of course, you can also just choose to submit to the blood test.

Can Police Officer Request a Blood Draw Even if They Have Administered Breathalyzers and Standardized Field Sobriety Tests?

The answer is, they can. There are actually two different types of breath tests; one is pre-arrest, and it is called a preliminary alcohol screen, which should only used to determine the presence of alcohol, not the blood-alcohol content, or BAC, unless a few very specific conditions are met.

There is also a post-arrest breath test; that’s the one that matters, because it’s the only one that satisfies the requirements of Vehicle Code section 23612. Even if you have performed field sobriety tests or submitted to a preliminary alcohol screen, if you are arrested for DUI, you willbe required to submit to either a chemical breath or blood test. The field sobriety tests and preliminary alcohol screens are essentially investigative tools for the officer to determine whether or not to arrest you.

Can Police Officers Combine A Blood Draw With Some Other Tests?

A lot depends on the officer and the circumstances surrounding the contact; in some cases, an officer will conduct one field sobriety test and go straight to the arrest and either do a blood or breath test. Others, such as when a collision is involved, they may transport the person to the hospital for a blood test.

There are no specific circumstances in which the law requires that everything be done; if the officer thinks there is enough evidence based purely on the reason for the contact and a few observations, such as alcohol on your breath, they can arrest you based on that, and then require submission to a blood test.

What Happens If A Blood Draw Doesn’t Provide Any Incriminating Results?

As far as the DMV is concerned, if you request a DMV hearing in time, which in California is within 10 days from the date of arrest, DMV can’t continue with the suspension of your license unless your results are at least 08% BAC level – absent a DUI conviction. If they take the blood draw and find no alcohol, no suspension will be imposed by DMV and it is extremely unlikely that the District Attorney will file charges.

If the blood test comes back and there is no alcohol, they may do another blood panel to see if there were any drugs in your system that may have created the underlying basis for why the officers thought you were impaired. Generally speaking, however, if the blood comes back completely clean, there won’t be any charges against you.

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