Do you think you have the right to refuse a DUI breath test?  More and more, the police are obtaining search warrants for blood sample, and literally pinning people down to obtain their evidence. Every DUI lawyer is accustomed to getting the 2 a.m. call.  A client is arrested and at the jail, and wants to know whether to take the breath test. This is the standard advice that lawyers give: Take the breath test, but don’t answer any questions the officer asks.  However, in the last two years, the decision has become more complicated. Across the country, police have greater powers to take a blood sample by force.

In Washington State, the case that approves of blood tests by force was Seattle v. St. John.  In that case the Washington State Supreme Court explained that just because a suspect is told (in the Implied Consent Warnings) that he can refuse a test, doesn’t mean that the police cannot request a search warrant to compel a test of the suspects blood.  Prior to this court decision, it was thought by some that a DUI suspect could refuse a breath or blood test and the only consequence would be the suspension of the driver’s license.

Although we haven’t seen it in Washington so much, across the nation, police departments are promoting “no refusal” weekends, where everyone who refuses a blood test will simply be subjected to a blood test by search warrant.   For example, my friend Clifford Swayze, who is an Austin Texas DUI lawyer, informed me about the Texas no refusal weekends” where the police will have a judge on call, all weekend, ready to issue search warrants for blood sample at all hours of the night.  Likewise in Atlanta, Georgia, two local police agencies have developed a policy whereby all suspects who refuse a test will face a request for a search warrant.  Other states, such as Montana, have changed their DUI statutes to make it clear that judges can sign warrants for blood draws.

How does a search warrant for a blood sample work?  Well the paperwork looks much like any other search warrant.  There is an affidavit that is filled out by the police that spells out the probable cause the police have to think that a person is intoxicated.  The judge then issues the warrant.  Sometimes this paperwork is presented to the judge in person.  Other times it is done telephonically.  The officer than takes the suspect to a hospital or clinic where a phlebotomist or blood tech takes the sample.  A person can be pinned down, and the sample can be taken by force if need be.  The possibility of a blood search warrant is something that every DUI lawyer should discuss with each suspect when they call for advice.