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Forced DUI Blood Tests and Search Warrants After McNeely

Forced DUI Blood Tests and Search Warrants after Missouri vs. McNeely

The United States Supreme Court just heard aDUI case from Missouri. It was called Missouri vs. McNeely and it involved a DUI suspect who did not consent to a test for blood alcohol after an arrest. Police forcibly took a blood sample from Mr. McNeely and tried to use the results of the test against the suspect in court.

I would expect to hear that in a state like Missouri the cops might get away with warrantless forced blood tests after a DUI arrest – but not here in California, right? Wrong. Since 1966 the liberal state of California has been relying upon the case of Schmerber vs. California to say that the cops could force a blood extraction from a suspected DUI driver without their consent and without a search warrant.


The Schmerber case involved a suspected DUI driver who was in a traffic collision and sent to the hospital to be treated for his injuries. The cops went to the hospital to interview Schmerber and smelled alcohol on his breath. The police told the hospital staff to draw blood for evidentiary testing purposes and the hospital staff did what they were told. Mr. Schmerber did not consent to the blood test and the police did not even try to get a search warrant.

Since 1966 police in California have assumed that it was alright to force a blood draw on any DUI suspect and use it against them in court. This logic flies in the face of the additional case law that has been carved out since that time. Specifically, if you face trial on a DUI case and a refusal is proven, the prosecution is entitled a jury instruction that we call “consciousness of guilt”. It basically says that if you believe the defendant refused a test because he knew he was guilty, you can use that against him.

This, coupled with the additional punishment including jail time, increased alcohol education school and license revocation are all part of what happens to someone convicted of drunk driving and refusing a test. Logically, if we have a jury instruction to help prosecutors get the convictions and increased punishments for the refusal to take the blood test, why would it be necessary to let police force blood draws on DUI suspects? That’s what has been happening here in California since 1966.

Implied Consent

Here in California, as in many states, we have what is called an implied consent law. Simply put, when we get a driver’s license in California we agree that if we are arrested for suspected driving under the influence of alcohol me MUST submit to and complete a test for blood alcohol. If we do not, we may lose our driving privilege and the refusal to submit can be used against us in court and cause increased punishment if convicted of DUI.

What Has Changed?

In the McNeely case, Mr. McNeely was pulled over for a traffic stop and arrested for DUI. He refused to submit to any chemical test for blood alcohol. The arresting officer took McNeely to a hospital and requested a blood draw even though the suspect failed to give his consent. The officer made no attempt to obtain a search before the blood draw.

In court McNeely’s attorney moved to suppress the evidence of the blood draw based upon the belief that it was taken through an illegal seizure. The trial court agreed and kept the evidence out of court. Apparently the United States Supreme Court agreed with the Missouri trial judge. They stated that as a general rule any warrantless search is invalid. There are limited circumstances in which searches and seizures may be conducted without a warrant.

One of the cases is what we call exigent circumstances. If an emergency exists and waiting for a warrant may cause injury or death or even loss of crucial evidence, a search or seizure may be conducted without a warrant. In McNeely, The State argued that seizure of blood from a DUI suspect must be done in a hurry. If it is not, the blood alcohol will dissipate or go down over time. This will cause the State to lose evidence. The Supreme Court disagreed. The Court state that decline in blood alcohol alone is not sufficient to force a blood draw without consent or a search warrant. The Court suggests that forcing a blood test on a human is highly intrusive and should be protected by Fourth Amendment. It should be noted that the court does leave open the concept that the totality of the circumstances surrounding an arrest may give rise to forced blood draw, but this was not the case with the facts of the McNeely case.

Practical Application of the New Law

In certain counties – like Ventura – where forced blood draws are the norm, I would expect law enforcement would start doing a lot fewer forced blood draws. However, I think we will see police trying harder to justify their actions. For example, DUI cases are often late at night or early in the morning and on weekends. It is a lot harder to get a search warrant signed at 3:00 a.m. on a Saturday than it is at 2:00 p.m. on a Tuesday. Likewise, if a defendant is released from custody, i.e. makes bail or is cited out, law enforcement may actually lose their evidence of blood alcohol if a blood sample is not taken in a hurry.

Even with the new ruling, my advice regarding a DUI arrest remains the same. If you are arrested for DUI, always refuse to take the preliminary alcohol screening or the hand-held field test at the side of the road and exercise your option for a blood test. Doing this often makes the police investigation much more difficult for them. The reason I say this is because when we blow in breathalyzer machine it returns a result of .08 or above it helps police justify their arrests and their reports. If we don’t give them the actual numbers to work with it often gives police a much harder time in writing reports particularly regarding topics like field sobriety test results and objective symptoms of intoxication. This often provides inroads to attack the prosecution’s case, win at trial and generally get better settlement results for our clients.

If you have more questions about DUI arrests, blood alcohol testing or any criminal law matter, call me,  Jeffrey Vallens (818) 783-5700 or (888) 764-4340 or email me at: or visit my websites: or