Can Officers Draw Blood in DWI cases?

If you’re stopped in a DWI, can an officer draw your blood even without your consent? What protections do you have against a warrantless blood draw in a DWI case?

In North Carolina (and most states), your refusal to submit to an Intox EC/IR II breathalyzer test will result in what’s called a “refusal.” That refusal, in most cases in North Carolina, triggers a one year suspension of your license, even if you are never convicted of the DWI. This is a consequence of North Carolina’s implied consent laws. (You do have a right to an administrative hearing to fight your refusal.)

But what if you refuse to submit to a breath test or blood draw? Can the police still draw your blood? The answer to this is, probably “yes.”

But unless there are exigent circumstances, the police must first get a search warrant from a magistrate or judge. That search warrant must be supported by sworn testimony or an affidavit laying out the specific facts that the officer believes create probable cause that a crime was committed that justifies the search – in this case, the blood draw.

The search warrant requirement comes from the Fourth Amendment to the United States Constitution.

In Schmerber v. California, the Supreme Court held that, in a driving under the influence case (DUI), where there is an emergency or exigent circumstances, the police officer can order the blood be drawn against the defendant’s will and without his consent and without a warrant:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” Preston v. United States, 376 U. S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Until now, police have needed either a warrant, consent, or emergency conditions in order to draw blood. But what if there is no emergency? Under current case law, if police pull blood without an emergency, warrant, or consent, the results of the blood can be suppressed at trial as a violation of the defendant’s Fourth Amendment rights.

However, the state of Missouri seeks to modify this rule, and in a new case, Missouri v. McNeely the state, the United States, MADD, and the National Association of District Attorneys, have argued that the United States Supreme Court should create a per se rule that would allow police to pull blood any time they believe they have probable cause of a DWI even if they never get a warrant.

The police, government, and states want this right, even though the process of getting a warrant is so streamlined these days that police can get warrants sometimes within 20 or 30 minutes of an arrest.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.