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Forced DUI Blood Draws in California


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9/7/2012
James W
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Salina, Kansas law enforcement announced that they will try a new "no refusal" policy regarding DUI investigations.  If a DUI suspect refused to provide a sample for alcohol testing after being arrested, the officer can electronically request a search warrant to forcibly take the suspects blood.

 

The law in California allows for situations where someone refuses to submit to a test.  Under the law of Implied Consent, it is implied that we all consent to providing a sample of our breath, blood, or urine for testing if suspected of DUI.  If a driver refuses to submit to a test he can be charged with a special enhancement for not doing so.  Also, the jury at his trial may be instructed that they may infer from his refusal to submit that he knew that he was over the limit. 

 

A forced blood draw can be very traumatic.  If the suspect refuses to comply after being told to choose a test, he is usually restrained by straps or a number of strong officers.  Often, the procedure is videotaped.  The arresting officer then reads verbatim the implied consent advisement, and the consequences of refusing.  She then asks him a final time to choose a test.  If he still refuses to comply, a certified phlebotomist inserts a needle in the suspects arm and obtains a sample. 

 

In my experience, police agencies that conduct forced bood draws are those that do so in their stations.  Those agencies that do not conduct forced blood draws are typically those that transport suspects to hospitals for blood draws.  I'm told that this is because many hospitals have strict policies against taking anyone's blood without their consent.  Many police agencies also may not do forced draws because they are concerned with excessive force lawsuites. 

 

The problem with refusing the test is thus:  Not only do you have to suffer the indignity of being poked with needles while strapped to a chair.  You also have to face additional charges for refusing, and the prosecution gets your blood regardless.  The jury also gets the inference instructions discussed above, and they get to see a video of you spitting a screaming during the blood draw.  My advice:  After you have been arrested, submit to a test.  You can fight the legality of the draw in court. 

 

 



Category: DUI and DWI Laws For California


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