Does the Government Need a Warrant for All Blood Draws?
Absolutely. Let’s dispel a couple myths here:
MYTH #1: YOU NEED A REFUSAL OR FORCED BLOOD DRAW TO OFFEND THE FOURTH AMENDMENT.
People v. Cuevas (2013) did a Fourth Amendment analysis on seven cases (consolidated). None of these were forced blood draws. “Each defendant was arrested for driving under the influence, after which each was advised by the arresting officer that under California’s implied consent law he/she was required to take one of two chemical tests. All defendants opted for a blood test…” See Cuevas, page 1282.
MYTH #2: IMPLIED CONSENT IS THE SAME THING AS FOURTH AMENDMENT CONSENT.
People v. Cuevas (2013) again held that the Fourth Amendment analysis is still applicable if DUI arrestees are cooperative and give an answer after the Implied Consent admonishment. “The People contend that where a defendant opts for a blood test under California’s implied consent law, the resulting blood draw is within the scope of that consent, and is therefore reasonable under the Fourth Amendment. Not so. A search conducted pursuant to a warrant is not per se reasonable.” See Cuevas, footnote 3.
Miranda v. Arizona (1966) reminds us of a constitutionally sound protection that seems to have been forgotten in the “Implied Consent = Explicit Consent” confusion:
“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”
MYTH #3: IF THERE IS PROBABLE CAUSE TO ARREST FOR DUI, THERE IS AUTOMATICALLY PROBABLE CAUSE TO COMPEL A BLOOD DRAW.
Schmerber v. California (1966) highlighted the error in making this illogical proposition. “Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.” (See page 768.) The Supreme Court continues, “While early cases suggest that there is an unrestricted “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime,” [….] the mere fact of a lawful arrest does not end our inquiry.” (See page 769.)
“Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” (See page 769-770.)
“Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” (See page 770.)