Menu 
Law Firm of Aaron Bortel

Are Blood Draws Legal?


Blood draws are legal if the proper procedures are followed leading up to the blood draws. Once someone has been arrested by the police for a DUI, the police are required to read what’s called implied consent to the person who they have arrested. Implied consent is something that you sign when you sign up for your license in California.

Basically, what you’ve done is indirectly consented, if arrested for a DUI, to do either a breath test or a blood test. You have a choice of testing method in most DUI cases, unless the police officer believes that you are under the influence of drugs or if there is no breath testing device readily available or working for the police officer to administer within a reasonable amount of time.

In either of these situations, whether you’ve requested the blood or if there is no breath test machine available or working, the police can administer a blood test. If they usually have a phlebotomist or a nurse, someone who is qualified to draw blood, take your blood in a medically approved manner, it is legal under these circumstances. If they do something wrong, then we can challenge it as an illegal blood draw.

What is the Quickest Amount of Time that a Police Officer Can Get a Warrant In?

The warrant comes up in situations where someone has refused to do a chemical test and the admonishment is read by the police officer. It’s required to be read, that says you’ve been arrested for a DUI, you’re required to do a test and if the person who has been arrested says, “I will not do a test” or indicates by some means that they are refusing to do a chemical test, then the police officer can do what’s called a forced blood draw or have a medically approved technician, phlebotomist, nurse do a blood draw, but in order to do that, the law now requires that they get a warrant.

A warrant can be obtained fairly quickly, usually from the duty judge. What happens is the officers will contact the judge and tell him what probable cause they have, the judge will okay it and either the officers get the judge to sign the warrant, or most of the time the judge will give the officer authority to sign the warrant for them. This can be done with a quick phone call and a quick answer within minutes.

When Does it Become Absolutely Necessary for Someone to Have their Blood Drawn?

There are different situations. One is where the officers believe that there are drugs in an arrestee’s system and the other is if there is no breath test available. Another situation would be if there has been an accident and the person is unable to give a breath test, they need to draw blood. That happens a lot in accident cases, especially with some pretty severe injuries.

Another way is if someone is incapable of giving a breath test, say they have that asthma, they are smokers and they just can’t blow hard enough. In that case, if they can’t produce a breath test, the officer should give them the choice of doing a breath test but sometimes these officers will call it a refusal, which is usually not a good thing.

Could a Police Officer Request a Blood Draw After the Breathalyzer and the Standardized Field Sobriety Tests?

The field sobriety tests are administered to determine whether or not they have probable cause to arrest for a DUI. Those as well as the preliminary breath test are usually done and administered and then the officer tells them they are under arrest for DUI. At that point, they get a choice of breath or blood.

If you have already done a preliminary breath test, that doesn’t count as the evidential test. You have to do a breath or a blood test once you have been arrested for the DUI. However, if they believe that you are under the influence of drugs, they can make you do a blood test. What they should do is just tell you that you are going to be doing a blood test because we believe you are under the influence of drugs and so there would not be a first breath test.

If they do not believe that there is any presence of drugs, which is what most of these cases involve, and you do a breath test, they cannot tell you that you have to do a blood test or make you do one. If they do, that’s an illegal action and would be dealt with motions to try and knock that out or help with the case.

However, if you do an evidential breath test after your arrest, actually what the officer is supposed to do is read what’s called a Trombetta Advisement. That advisement says that the breath test does not retain a sample and if you want a sample retained, the only way would be to do a blood test. So, you do have a right to do blood test after you have done an evidential breath test. In most cases, that is not helpful. Sometimes, it can be helpful but what it usually does is it just gives them one more number over the legal limit. One or the other is the way to go.

For more information on Legal Status of Blood Draws, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (415) 523-7878 today.

Aaron Bortel

Get your questions answered - Call Us 24/7 For a FREE Case Evaluation (415) 523-7878.

Related Articles