Can Police Take a Blood Sample Without Permission?

by Monty Yolles on January 9, 2013

The Fourth Amendment of the U.S. Constitution prohibits law enforcement from “unreasonable” searches and seizures of a person’s property as clearly stated in the language of the Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The word we will focus on in this article is “unreasonable,” particularly whether an involuntary blood draw is “unreasonable” so as to render it unconstitutional in the context of a DUI arrest and inadmissible at a subsequent trial.

DUI and DWI charges are a matter of state law, and many states have legislation to allow blood draws over a defendant’s objection and without a search warrant in certain situations in cases where DUI or DWI is suspected.  In Maryland, if you refuse a breath test or blood test, then the officer cannot force you to take one unless you were involved in an accident causing serious injury or death.

Lower federal courts have generally upheld the practice, but the issue has not been decided by the U.S. Supreme Court.  That is about to change.

The Court agreed to hear the case of Missouri v. McNeely to consider whether a police officer can obtain a blood sample without a warrant over a defendant’s objection.

McNeely was stopped for speeding near Cape Girardeau, Missouri.  He reportedly failed a field sobriety test and appeared to be intoxicated, but refused to submit to a breath test or provide a blood sample.  The officer took McNeely to a hospital and ordered a forcible blood draw. (The ‘serious injury’ condition precedent does not apply in Missouri.)

The blood test results indicated McNeely’s blood alcohol content exceeded the legal limit and he was arrested for driving under the influence. At trial, McNeely objected to the warrantless blood draw.  The state argued no warrant was necessary because exigent circumstances existed at the time, specifically that McNeely’s body would eliminate the alcohol before the officer had time to obtain a search warrant.

The trial court agreed with McNeely.  The state appealed, but Missouri appellate courts also agreed with McNeely. The state then sought reivew in the U.S. Supreme Court.

The question the Court will consider is “Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.”

We will be watching for the Court’s decision on this important constitutional question.

If you are arrested in Maryland or the District of Columbia for DUI or DWI, call an experienced criminal defense lawyer for advice.  Monty Yolles, founder of THE YOLLES LEGAL GROUP, is an experienced Maryland DUI and DWI attorney who can help you consider all of your options and what you should expect.  Call Monty Yolles today at (301)670-0443 to discuss your case, or send an email inquiry to

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