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05/2/13 6:51 PM


The U.S. Supreme Court recently held that the police could not conduct a warrantless blood draw in a routine DUI investigation.  In Missouri v. McNeely, the court held that “ in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

The government was arguing for a “per se” rule that would allow the cops to draw blood without your consent and without a warrant in all DUI cases and DUI investigations.  The U.S. Supreme Court rejected this argument and found that there was no exigency that would justify such a per se rule.  Allowing the cops to force a blood draw without your consent and without a warrant in DUI cases could result in the police- simply drawing blood based on a hunch and NOT probable cause.  For more information about your rights during contact with law enforcement, visit our MIRANDA  and DUI STOPS WHAT YOU NEED TO KNOW posts.

Our Fourth Amendment of our United States Constitution guarantees your right to be free from unreasonable search and seizure.  A warrant is issued by an independent magistrate and must be based on probable cause.  Generally, a search or seizure based on a properly issued warrant is reasonable and is not a violation of the Fourth Amendment.

Throughout our history the courts have carved out various exceptions to this warrant requirement.  One such exception is the exigency requirement.  Exigency applies when the situation make the needs of the police so compelling that a warrantless search objectively reasonable.  An exigency requirement has been found constitutional based on a theory of destruction of evidence- basically giving the cops no time to seek a warrant because they are confronted with a now or never situation because the sought after evidence would be destroyed.

A blood draw is a physical intrusion beneath the skin and into the veins to remove evidence to be used in a criminal prosecution.  Thus, you have a Fourth Amendment right to be free from an unreasonable seizure of your blood.

This does not mean that a warrantless blood draw would be unreasonable, but the Court refused to hold a per se exception to allow all warrantless blood draws.  If a warrantless blood draw is or is not a violation of your Fourth Amendment rights will be determined by the specific facts of your case.

In the context of DUI investigations, if the officer has probable cause to arrest you for suspension of DUI, Colorado has an Express Consent law. Refusing to consent to blood or breath test would most likely result in the revocation of your Colorado license for at least a year by the Colorado Motor Vehicle Department.

If you feel that your Fourth Amendment Rights have been violated or you were the victim of an unreasonable search or seizure by the cops – contact us for additional information at (303) 747-4686 or click here.

Thank you for visiting our post on the Fourth Amendment- for more information about us- visit our website at:  www.criminaldefenseyouneed.com 

Posted by Laurie Schmidt | in DUI arrest, DUI laws, DUI Post, Fourth Amendment | Comments Off on FOURTH AMENDMENT DISALLOWS WARRANTLESS BLOOD DRAW IN DUI CASES

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