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A recent lawsuit out of Texas has gained media attention based on the allegations made by the plaintiff. The plaintiff was arrested for a DUI offense and refused to take a breath test when requested by the arresting officer. The plaintiff claims that she was then taken to a small, padded room at the jail, where her legs, wrists and shoulders were restrained.
The woman’s head was placed in a covered hood and she was taken to the hospital for a forced blood draw. The nurse was unable to obtain a blood sample and the needle continued to pop out of the plaintiff’s arm which caused her to shoot blood all over. At one point an officer used a chokehold in an attempt to subdue the plaintiff in order to perform a forced blood draw.
Under the United States and California Constitutions, there is a general prohibition against unreasonable searches and seizures. In DUI cases, search and seizure issues usually come up in the context of the vehicle stop and whether or not the officer had sufficient reasonable or probable cause to justify pulling over a defendant’s vehicle or arresting the defendant.
However, the protection against unreasonable searches or seizures may also be an issue when dealing with chemical testing. Chemical testing is a key part of any DUI arrest and prosecution. Breath or blood results are used by the police and prosecution to show that the defendant had a blood alcohol level of 0.08 or higher or had drugs in his or her system at the time of driving.
Under California’s implied consent law, all drivers on the road are presumed to have given consent to have their blood or breath tested if lawfully arrested for DUI. Refusing to submit to chemical testing is itself illegal and will also subject the driver to DUI charges under California Vehicle Code Section 23152(a).
Usually, when a driver refuses to submit to chemical testing, the officer will cite him or her for a DUI offense along with a refusal allegation, which will automatically trigger a yearlong driver’s license suspension. It is rare that law enforcement officers would find it necessary to conduct a forced blood draw on a suspect (forced blood draws are the only way to obtain a sample suitable for chemical testing, as there is no way to obtain a usable forced breath sample).
The United States Supreme Court has disfavored the use of forced blood draws conducted without a warrant in DUI cases, and has described the forcible removal of blood as an unreasonable search or seizure. However, the Supreme Court has commented that forcible draws may be permissible in emergency situations.
There are instances where forcible blood draws are permitted. In these cases, the defendant may physically resist the blood draw and officers may be put in a very delicate situation. While it ultimately may be determined that the officers in Texas went over the line by covering the plaintiff’s head with a hood and then using a chokehold on her, drivers should remember that forcible blood draws may be permissible in certain circumstances.