This year's Fourth of July raised questions about the constitutionality of "no refusal" DUI blood draws. Sobriety checkpoints ramp up during the holidays, especially on July 4th weekend. This year, many law enforcement agencies throughout the nation participated in something that's being referred to as "no refusal enforcement."
No refusal allows law enforcement officers to ask people they stop under suspicion of drunk driving (or at a DUI checkpoint) for a breath or blood sample. If the driver refuses, police have the right to obtain a warrant to get a sample of your blood.
States like Texas have implemented some mandatory blood draws where law enforcement doesn't even have to obtain a warrant before collecting a blood sample of the suspect. For example, if someone was killed or seriously injured in a likely DUI accident, the drunk driving suspect can be subject to a mandatory blood draw.
Law enforcement believes that these no-refusal blood draws and mandatory blood draw laws are helping reduce the overall drunk driving fatality rate. They use blood draws rather than breath samples because blood tests are typically more accurate than breath samples (unless, for example, your blood was tested by the Orange County Crime Lab between May and November of 2013).
Some states have been using these no refusal blood draw tactics for years. Tennessee began using this tactic in 2009 in cases of vehicular assault only, but expanded its use in 2012 to cover any DUI suspect.
The Law Offices of Virginia L. Landry is an advocate for sober driving – we in no way encourage drunk driving or loopholes for drunk drivers to get away with their behavior. However, we are also advocates for the Fourth Amendment rights of every individual. Your Fourth Amendment rights declare that you are to be free from unlawful searches and seizures.
Blood draws are extremely intrusive, but in some states, law enforcement is essentially forcing Americans to submit to them. In states like Tennessee and Oregon, anyone who refuses a Breathalyzer test could have a warrant issued for a forced blood test.
The Supreme Court case Missouri v. McNeelyruled that law enforcement cannot administer blood tests to DUI suspects without obtaining a warrant first unless the case constitutes an emergency (Schmerber v. California).