When a person has been stopped for suspicion of driving under the influence of alcohol and/or drugs, they will be asked to submit to a blood alcohol test. Two tests will be administered. One is at the scene of the stop and the other will be at the station.
The test administered at the scene of the stop is voluntary and the driver should be informed of that. It is generally a breath test and is referred to as a preliminary alcohol screening test. If the driver refuses this test, there are no adverse consequences, other than that the driver will most likely be taken into custody.
The second test administered at the police station following an arrest is still voluntarily, but a refusal carries with it some serious consequences. The test may be either a breath or blood test, and if it is refusal and the driver is subsequently found guilty of a DUI, they will face an enhanced sentence.
Recently, there has been some new case law in regards to a forcible blood test during a routine DUI stop. In the Supreme Court case of Missouri v. McNeely, the Court held that the fact that there is alcohol in a driver’s bloodstream does not create enough exigent circumstances to warrant the forcible drawing of blood in violation of a person’s fourth amendment right.s
What does that exactly mean? A person’s fourth amendment rights protect them from illegal search and seizure. This means that no legal authority may obtain evidence from any person without the proper search warrant. An exception exists to the general rule. An officer may search the personal space of a person without a warrant if there are exigent circumstances.
In Missouri v. McNeely, the officers forcibly took blood from the driver in a DUI case, after the driver had refused to submit to any alcohol screening test. The Court found that there were NO exigent circumstances and to forcibly take a driver’s blood during a DUI stop would be in violation of the driver’s Fourth Amendment rights.
Your Constitutional Rights are taken very seriously. Any violation of a Constitutional Right has serious consequences. Any evidence obtained in violation of a person’s Fourth Amendment Rights will result in that evidence being suppressed. In the above mentioned case, the evidence of his blood alcohol test would be suppressed and cannot be considered by the Court during his criminal trial.
If you find yourself in a situation where a alcohol screening test was taken against you will, it may have been done so in violation of your Constitutional Fourth Amendment Right. Consult with an experienced and knowledgeable Los Angeles Criminal Defense lawyer right away! It could make the difference between evidence being suppressed and your case being dismissed!