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Can the police take my blood without a warrant or consent?

"Can the police take my blood without my consent and without a warrant during a DUI arrest?" My clients and clients all over the county of San Diego and State of California often ask this question after they are arrested for driving under the influence. The answer, of course, is that it depends.

The US Supreme Court held in Schmerber v. California 384 U.S. 757 (1966) and reaffirmed in Missouri v. McNeely 133 S.Ct. 1552 (2013), that absent an exigent circumstance, the police cannot take someone's blood without their consent or without a warrant during a DUI arrest.

The next question, naturally, is what constitutes an exigent circumstance. Schmerber "requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case." However, if "special facts" are present, such as the suspect being involved in an accident, an exigent circumstance may exist and a warrantless blood draw may be permissible.

Another consideration is under the California Vehicle Code Section 23612, the implied consent law, a person is required to submit to a breath, blood, or urine test if lawfully arrested. If there is a lawful arrest and a proper advisal under VC 23612, refusing a chemical test may result in additional penalties – for example, losing their license for one year or more.

A typical scenario is this: The police suspect that someone is driving under the influence. The person is arrested and the police want to get a blood test. At this point, the police give the VC23162 admonishment. The person/suspect refuses the test. If "special facts" exist, for example, an accident, the police may be able justify a warrantless blood draw as an exigent circumstance.

There are numerous scenarios involving DUI arrest, warrantless blood draws, and implied consent laws. If you have been arrested for a DUI, contact Kern Law, APC today by calling the office or submitting an online form and speak with me personally about your case.