Is A Warrant Required For A DUI Blood Test?


On June 23, 2016, the United States Supreme Court issued a decision in the case Birchfield v. North Dakota, which will affect California’s “implied consent” DUI laws. The Court held that the Fourth Amendment to the United States Constitution permits a DUI breath test incident to an arrest without the need for a warrant but a warrantless blood test is unconstitutional. Both are considered a search governed by the Fourth Amendment but the Supreme Court found its decision on a privacy rights analysis vis-a-vis the need to obtain a BAC reading. Finding that a breath test is not a significant intrusion on one’s privacy but the piercing of skin and extraction of a part of the subject’s body is, the Supreme Court held that the extraction of blood to measure BAC is not a reasonable alternative in light of the availability of the less intrusive method.

The case was not just an academic exercise; the Supreme Court took this case in order to decide if states can make it a crime to refuse BAC chemical testing. Based on the Court’s analysis, the Supreme’s held that a motorist under arrest for DUI cannot be held criminally liable for refusing a blood test but can be held criminally liable for refusing a breath test.

How will this affect California’s DUI refusal law? Unlike the states that were challenged in the Supreme Court decision, California does not make it a separate crime to refuse a DUI chemical test. Rather, California applies sentencing enhancements for refusal to submit to a chemical test upon a lawful arrest for DUI. However, following this decision, if the arresting officer determines that a blood test is required, the officer will either need to have the driver’s consent or obtain a warrant. Currently under California statute, a driver gives implied consent to chemical testing of his or her breath or blood when the driver is lawfully arrested for DUI. (Vehicle Code ยง23612.) The Supreme Court decision applies to all of the states; therefore, California’s “implied consent” law as it applies to blood chemical testing is no longer valid. This will particularly affect those stops where the officer suspects the person is driving under the influence of drugs or a combination of drugs and alcohol.

If you would like to know more about the laws regarding driving under the influence of alcohol or other drugs in California, contact Orange County Criminal Defense Attorney William M. Weinberg at his Irvine, California office at 949-474-8008.