Under the implied consent law in Virginia, you are required to give a breath or blood test if an officer arrests you for driving under the influence. If you’ve been in an accident and end up at a hospital, the officer will usually ask for a blood test.
You have the power to refuse, but will then face a separate refusal charge with additional penalties. The officer then has a choice to obtain a warrant for a forced blood test, or force a blood draw without warrant.
The Supreme Court recently looked at a forced blood draw without warrant in Missouri v. McNeely because your Fourth Amendment right keeps the government from unreasonable searches:
“The right of the people to be secure … against unreasonable searches and seizures, shall not be violated.”
In McNeely, the government wanted the Supreme Court to allow forced blood tests without warrants in all drunk driving cases. The government argued that since the human body naturally eliminates “the evidence” of alcohol over time, officers should not have to take the time to obtain a warrant. The legal concept is known as “exigent circumstances.” The Courts have allowed an exigent circumstance exception to the Fourth Amendment in “now or never” situations like hot pursuit, preventing the quick destruction of evidence in burning buildings, or drug raids.
The Supreme Court said “No” to the government; the government cannot legally force you to give blood against your will without a warrant without true exigent circumstances.
Virginia courts came to this same conclusion some years before in Bristol v. Commonwealth. Virginia’s Supreme Court found that “the mere fact that a defendant’s blood alcohol content might dissipate is insufficient, by itself, to support application of the ‘exigent circumstances’ exception. The possibility that blood alcohol content may dissipate exists in every instance in which a driver has consumed alcoholic beverages.”
The United States Supreme Court’s decision in McNeely essentially confirmed Virginia’s previous finding that forced, warrantless blood tests violates your right to be secure against unreasonable searches.
Our passion at Tillotson & Martin, L.L.C., is defending citizens against unfair traffic & DUI laws. We write the book for DWI defense for Virginia attorneys and provide seminars for attorneys on how to beat the breath test machine. We train extensively to develop and improve cutting edge defenses. Our attorneys are active National College for DUI Defense members, are certified in NHTSA Field Sobriety Testing, and are trained to interpret breath test and blood test data.
