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Forced Blood Draw

Under California's implied consent law (California V.C. Section 23612 - Implied Consent For Chemical Testing), any driver arrested for driving under the influence of any alcoholic beverage or drug must take a chemical test in order to determine blood alcohol content (BAC). If a driver refuses to submit to a chemical test, police can take blood by force - either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw the blood for use in a drunk driving prosecution.

Forced blood draws are allowed under the 1966 U.S. Supreme Court case of Schmerber v. California. The court ruled that police can take a driver's blood without a warrant in order to conduct a chemical test. Police must take the sample in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these guidelines are followed, then forced blood draws do not violate the driver's Fourth Amendment right against unreasonable search and seizure.

The courts have ruled that the temporary nature of alcohol in the blood makes it unreasonable to require a warrant for a forced blood draw. Opponents believe that a forced blood draw is an invasion of privacy and a violation of the right against self-incrimination.

A forced blood draw constitutes a "refusal" in California. Refusing a chemical test has severe consequences, including fines, jail time, and suspension of the driver's license. Thus, forced blood draws can result in both a drunk driving conviction and added penalties (California V.C. Section 23577 - Chemical Testing: Refusal to Take or Failure to Complete: Enhanced Penalties).

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Attorneys for the firm represent clients accused of driving under the influence of alcohol or driving with a blood alcohol level at or above the legal limit in San Francisco, San Mateo, Marin, Alameda, Santa Clara, Contra Costa, Sonoma and Napa counties.

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Sometimes police state that a DUI suspect refused a chemical test even when he or she did not. These misunderstandings can stem from language barriers, overreacting police officers, or drivers who fear needles.

A successful suppression motion will exclude the results of a forced blood draw. A suppression motion, which is typically made before the start of trial, is a request to the court to exclude evidence because it was not gathered in a constitutionally valid way.

If police do not follow the protocol laid out by the Supreme Court, the results of a forced blood draw may also be suppressed. Suppressed evidence cannot be considered by the judge or heard by the jury. Any evidence gained as a result of the unconstitutional evidence must also be suppressed.

Suppressing an improper forced blood draw is integral to the fight for constitutional rights. A skilled California DUI defense attorney will review a forced blood draw to establish whether a driver's rights have been violated. If the proper protocols were not followed, the attorney will move for the evidence to be excluded.

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