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Know Your Rights - Police Can't Take a Blood Test Without Your Consent, or a Warrant

Posted by William Bly | May 31, 2015 | 0 Comments

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Police officers have a tough job. They get paid to ferret out crime and enforce the law, but often seem to have their hands tied behind them by everyone's civil rights. In the course of their job, they have to walk a fine line between working hard to nab bad guys, and working too hard to nab bad guys – they have to keep people safe from crime, but, at the same time, they can't go overboard and make people feel unsafe by violating their constitutional rights. This is the exact dilemma that our Constitution envisioned, when it was made to include the Fourth Amendment, which guarantees our freedom from being subjected to unreasonable searches and seizures.

This knife edge that police have to walk on, however, disappears when you don't know your constitutional rights. Police can ask to search in lots of places, and can get away with it if you say “yes.” These are called “consent searches,” and are the basis for a lot of arrests and criminal charges. By knowing your rights, you can know when police have a reason to search for evidence of a crime somewhere, or are just trying to get you to consent to a search.

Knowing your rights is important anytime you interact with the police, and an arrest for operating under the influence (OUI) is no exception. Using a breathalyzer or other tests to determine your blood alcohol content (BAC) is a search, as it gathers evidence for a crime – in this case, the crime of OUI. Therefore, BAC tests can violate the Fourth Amendment, if not done properly.

According to the Supreme Court, one way that BAC testing can be done improperly, and therefore in violation of the Fourth Amendment, is by using a blood test without a warrant. This was the case in the recent decision, Missouri v. McNeeley.

In that case, Tyler McNeeley was pulled over in Missouri after an officer suspected

that he was driving drunk. He refused to take a breathalyzer, but other sobriety tests indicated that he was under the influence. He was arrested, and was bound for the police station, and another breathalyzer test, when McNeeley told the officer that he would refuse to take a breathalyzer test there, as well. The officer turned around and drove him to a hospital, where he asked McNeeley if he would consent to having his blood tested for its alcohol content. McNeeley refused, but the officer instructed a lab technician at the hospital to take a blood draw, anyway. The police officer never got a warrant for the search, and McNeeley claimed at his trial that the blood draw violated the Fourth Amendment.

After appeals brought the case to the U.S. Supreme Court, the Court said that the search did violate the Fourth Amendment. Generally speaking, searches need a warrant. However, there are numerous exceptions to this rule, one of which is where there's an exigency – an urgent situation that dispenses with the warrant requirement. The Supreme Court, however, did not think that this was an exigent situation, and determined that forcibly obtaining a blood test without a warrant or consent to gather evidence for OUI violated the Fourth Amendment.

If you or someone you know has been through an OUI arrest that makes you wonder if your civil rights may have been violated, call the law office of William T. Bly at (207) 571-8146.

About the Author

William Bly

William T. Bly, Esq. is a graduate of Rutgers College where he majored in Political Science with a minor in U.S. History. Attorney Bly attended and graduated the University of Maine School of Law. During his time in law school, Attorney Bly focused on criminal defense.


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