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Could Someone Actually Refuse A Blood Draw?


Absolutely! If the officer is only giving you the choice of blood because they believe that you are under the influence of drugs and/or they believe that no breath test is available. You can refuse it if you want. The problem is they will read the refusal admonition, and assuming they do that properly, what that admonition says is that you can lose your license for a year or more just for refusing the test.

That’s what you risk: losing your license for a year and, in most of these cases now, they will just get a warrant from a judge and forcibly draw your blood, which will help them have more evidence, potentially, against you for the court case and the DMV case but the refusal is really going to hurt you for the DMV case.

Usually in court, we can get a refusal allegation stricken. But at the DMV, it’s much harder to get that stricken and typically, the one-year suspension or more would come from there because the issue with the DMV would not be, “What’s the blood alcohol level?”

The issue would be that they have to prove several things: that the officer had sufficient cause or probable cause to stop you and initiate a DUI investigation, that you were lawfully arrested, that you were admonished, that you were required to do a blood test, and that you refused to do the test. That’s the problem with the refusal situation at DMV. Nowhere in those four issues does it say you were at or over an 0.08; in fact, that’s a non-issue with DMV on a refusal case.

What Happens If They Don’t Find Anything in the Blood Draw? Is the Case Dismissed Automatically?

In those cases, what should happen is the district attorney’s office should review the case, see the results and dismiss the case assuming there aren’t other non-DUI charges and DMV should do the same thing, set aside any suspension.

However, one of the problems you have is that even if it comes up zero, if you have not requested a hearing within 10 days, DMV may still suspend your license and even when it comes back under a 0.08 or at zero blood alcohol level; you may still end up with a suspension on your license if it’s not handled properly. It is important to request that DMV hearing within 10 days of your arrest.

Who Actually Draws the Blood?

For safety purposes, someone who is qualified to do so. It’s usually a phlebotomist who is licensed by the State of California, they have taken the proper courses to draw blood, sometimes it’s the nurse, or it could be a paramedic; it could be anybody who is licensed to draw blood. There are some police officers who have been properly trained and who can draw blood, but that’s very rare.

Is There Some Sort of An Additional Fee for a Blood Draw?

No. The only additional fee that you see from the police officers or anybody else involved, emergency services, is the law allows CHP and ambulances, medical personnel to bill for time when they have responded to an accident. Technically, if the case does go away, if you get dismissed, you may be able to get away from paying that bill but if they can prove that it was a DUI, you’re going to be on the hook for that bill and often it can be $1,000 or more.

Would it be Possible for Someone To Get their Own Blood Drawn to Prove their Innocence?

The problem is that when you get arrested, they usually take you to jail and do a blood draw and keep you for four to six hours or sometimes a lot more. Some places will release you right away if there is a friend or a relative or someone who can pick you up but if you do a blood draw at a jail, you’re going to be sitting there for a while. Once you get out, often it’s the early morning hours and there is no facility open to do a blood draw. By the time you get around to it, most of the alcohol that may be in your system is probably gone.

Where it might be beneficial is if you haven’t had anything to drink and you’re testing, say on a breath test you’re over the limit, whether something is wrong with that test. If you want to get a blood test after you get out of jail, that may be helpful, but if it turns out that you did the preliminary alcohol screening blow and you’re over the limit and they give you a blood test in jail, you’ve had nothing to drink or no drugs, that blood test should come back reading zeroes.

To go get a blood test later after you get out most likely would not be helpful. You’re always welcome to do it, it’s not something that the other side would see unless your attorney presented it to them, it’s not something that I advise people to run out and do right away but it can be done, anybody can go to a lab and have blood drawn.

For more information on Refusing A Blood Draw, 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

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