Are Blood Draws Legal?
The short answer is, yes, blood draws are legal when it comes to DUI. By agreeing to have their driver’s license issued by the State of Utah, the driver has agreed to be subject to the implied consent law, which means that, if an officer requests that the driver do any sort of chemical test, including a blood draw, the driver has already implicitly consented to the test just by having a Utah license. In addition to a blood test, the officer can request a breath test or a urine test, or a test of any other fluids the officer wants.
When it comes to the criminal side of it and dealing with the legal issues in a court of law, it’s my position that in order to draw blood, there has to be consent and/or a warrant. It’s like a search of someone’s home, car or office; there must be probable cause, and there must be a warrant or consent for the specific action.
In most blood test DUI cases, the drivers have consented to the blood draw. Sometimes, people refuse to consent, and the officers will go to a judge and get a warrant. They will tell the judge they believe there is evidence contained in the blood, and the judge will either deny or issue the warrant.
Most of the time, the judge will issue the warrant and the officer will show it to the driver, at which point most drivers consent. Occasionally, drivers will still not consent even with a warrant, and the staff at the police department or sheriff’s office will restrain that person and just take the blood, since the warrant gives them that authority.
Again, blood draws are legal as long as there is either consent or a warrant.
How Fast Can a Police Officer Get a Warrant?
There are misconceptions regarding how quickly police can obtain the warrant. For example, a driver may refuse the blood draw to force the officer to get a warrant, figuring that he has plenty of time to perhaps lose some of the alcohol in their system. They are often surprised when he comes back with the warrant 15 minutes later.
One reason police can work so quickly these days is because there is usually a judge available by email, and he will often approve it and send it back the same way.
The process of delaying the inevitable doesn’t buy the driver a whole lot of time anymore. It’s not worth the refusal as far as the driver’s license division goes. A refusal can result in a license suspension from between 18 months and 3 years. It is extremely rare that an officer won’t get the warrant and the blood. It’s only happened once in my experience.
In most DUI cases, a police officer can get a warrant within about 15 to 30 minutes. Once he gets back to the station and gathers the information from the field sobriety tests, the reason for the stop, it will take him 10 to 15 minutes. Then, he’ll have that email or call to the judge within a few minutes, and the judge will review it and send it back. The entire process can be completed within 15 minutes to an hour.
When Does a Blood Draw Become Absolutely Necessary?
A blood draw is usually required after the officer has arrested the driver for suspicion of DUI. They’ll read him the admonitions, or warnings, letting the driver know they will request the chemical test and what could happen if he refuses. The driver really should submit when the officer asks them if they will submit to a chemical test.
Often, there is some confusion about whether the blood test is better for them than a breath test or urine test. Sometimes drivers request a breath test or a blood test and the officer wants them to do something different.
For example, sometimes an officer will request that a driver submit to a breath test, but the driver will say, “Well, I heard that blood tests are more accurate and they’re more reliable.” At that point, the officer doesn’t have to argue about which test is more accurate or reliable; he just has to warn the driver that refusal to submit to a breath test can result in a license suspension.
That’s another misconception; that the driver can choose which test they want to take. The minute the officer requests any chemical test, the only choice driver has is to decide whether to submit or not.
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