If you are pulled over for suspicion of DUI, you should not refuse to be tested . The consequences of refusing to take the test are usually worse that the consequences for taking the test and failing it.
In the spring of 2013, the United States Supreme Court just heard a DUI case from Missouri. It was called Missouri vs. McNeely and it involved a DUI suspect who did not consent to a test for blood alcohol after an arrest. Police forcibly took a blood sample from Mr. McNeely and tried to use the results of the test against the suspect in court.
Since 1966 the liberal state of California has been relying upon the case of Schmerber vs. California to say that the cops could force a blood extraction from a suspected DUI driver without their consent and without a search warrant.
History
The Schmerber case involved a suspected DUI driver who was in a traffic collision and sent to the hospital to be treated for his injuries. The cops went to the hospital to interview Schmerber and smelled alcohol on his breath. The police told the hospital staff to draw blood for evidentiary testing purposes and the hospital staff did what they were told. Mr. Schmerber did not consent to the blood test and the police did not even try to get a search warrant.
Since 1966 police in California have assumed that it was alright to force a blood draw on any DUI suspect and use it against them in court. This logic flies in the face of the additional case law that has been carved out since that time. Specifically, if you face trial on a DUI case and a refusal is proven, the prosecution is entitled a jury instruction that we call “consciousness of guilt”. It basically says that if you believe the defendant refused a test because he knew he was guilty, you can use that against him.
This, coupled with the additional punishment including jail time, increased alcohol education school and license revocation are all part of what happens to someone convicted of drunk driving and refusing a test. Logically, if we have a jury instruction to help prosecutors get the convictions and increased punishments for the refusal to take the blood test, why would it be necessary to let police force blood draws on DUI suspects? That’s what has been happening in California since 1966.
Implied Consent
In many states, we have what is called an implied consent law. Simply put, when we get a driver’s license we agree that if we are arrested for suspected driving under the influence of alcohol me MUST submit to and complete a test for blood alcohol. If we do not, we may lose our driving privilege and the refusal to submit can be used against us in court and cause increased punishment if convicted of DUI.
What Has Changed?
In the McNeely case, Mr. McNeely was pulled over for a traffic stop and arrested for DUI. He refused to submit to any chemical test for blood alcohol. The arresting officer took McNeely to a hospital and requested a blood draw even though the suspect failed to give his consent. The officer made no attempt to obtain a search before the blood draw.
In court McNeely’s attorney moved to suppress the evidence of the blood draw based upon the belief that it was taken through an illegal seizure. The trial court agreed and kept the evidence out of court. Apparently the United States Supreme Court agreed with the Missouri trial judge. They stated that as a general rule any warrantless search is invalid. There are limited circumstances in which searches and seizures may be conducted without a warrant.
Practical Application of the New Law
In certain places where forced blood draws are the norm, I would expect law enforcement would start doing a lot fewer forced blood draws. However, I think we will see police trying harder to justify their actions. For example, DUI cases are often late at night or early in the morning and on weekends. It is a lot harder to get a search warrant signed at 3:00 a.m. on a Saturday than it is at 2:00 p.m. on a Tuesday. Likewise, if a defendant is released from custody, i.e. makes bail or is cited out, law enforcement may actually lose their evidence of blood alcohol if a blood sample is not taken in a hurry.
If you are arrested for DUI, always refuse to take the preliminary alcohol screening or the hand-held field test at the side of the road and exercise your option for a blood test. Doing this often makes the police investigation much more difficult for them. The reason is because when we blow in breathalyzer machine it returns a result of .08 or above it helps police justify their arrests and their reports. If we don’t give them the actual numbers to work with it often gives police a much harder time in writing reports particularly regarding topics like field sobriety test results and objective symptoms of intoxication. This often provides inroads to attack the prosecution’s case, win at trial and generally get better settlement results for clients.
Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.
For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.