Yes, they are. This issue has gone up to the United States Supreme Court, who basically said that as long as a blood draw is conducted in a safe and sterile environment, blood draws in DUI cases can take place. Different states treat blood draws differently. Some states will only allow blood draws with consent of a suspect in a DUI case. Other states allow officers to then attempt to get a warrant in order to take a person’s blood if they fail to consent.
Unfortunately, despite the United States Supreme Court indicating that blood draws were appropriate in DUI investigations only if performed by an educated and properly phlebotomist, in Arizona we have officers that are trained to be phlebotomists with only a few hours of training and the sterile environment doesn’t seem to really be upheld in Arizona courts.
We have had officers who have taken people’s blood on the scene of traffic stops on a dusty car hood, in the patrol vehicle itself, or in a police station—places that would not be considered sterile or even clean—and courts have been reluctant to toss out the blood test results because of that, so they have been upheld by the United States Supreme Court. They have gone up through the court system in different cases, but they have consistently upheld the blood testing by nurses as well as by trained police officers.
How Quickly Can a Police Officer Get a Warrant for a Blood Draw?
Nowadays, there is always a judge on call that can accept a warrant. It can take a matter of a few minutes. There is not really a deadline on when an officer can request a search warrant. We have seen cases where an officer was able to get a warrant and draw blood maybe six hours after a traffic stop took place.
Nonetheless, a warrant is issued and blood is drawn and that blood test result can be used against a person as long as it can be what’s called ‘retrograded,’ where a scientist comes in and performs what’s called a retrograde extrapolation to determine what a blood alcohol content would have been within two hours of driving. In some extreme cases, unfortunately, it was a memo decision, which is a decision by a higher court that basically only applied to that person’s case and was not to be considered as reliable for other people’s cases.
A person was arrested for a DUI and had their blood drawn about six hours after they were stopped. The blood was tested and came back at zero blood alcohol content. Nonetheless, a scientist was able to come in and say that in performing the retrograde extrapolation on a test result of zero, they can determine that the blood alcohol content at the time of driving or within two hours of driving would have been anywhere between zero and a certain blood alcohol content that was quite high.
The court held that that was appropriate because the jury was given a range of potential sentence, which means that the scientist literally created evidence out of the air by saying that having no blood alcohol content six hours after driving could have led to a high blood alcohol content at or near the time of driving. It was a horrible, scary ruling, but fortunately, one that cannot be relied upon by prosecutors, so they can’t fight that in making future arguments if something like this were to happen again.
When Does it Become Absolutely Necessary for Someone to Have Their Blood Drawn?
If an officer suspects that a person is driving under the influence of alcohol, drugs, medications or vapor releasing substances, an officer wants to attempt to get evidence that will prove that someone was under the influence, impaired or at least, had drugs or medications or their metabolites present in the person’s system.
Under Arizona law, it is up to the officer to decide what type of testing to request from the person, which is going to be either a blood test, a breath test, or a urine test. If the officer requests that a blood and/or breath and/or urine test is to be done by the suspect, then the suspect has the ability to consent. If they do not consent, then the officer has the ability to request a warrant from an on-call judge and that on-call judge will decide whether it is appropriate to issue a search warrant for the officers to draw blood and seize that blood for testing purposes.
The number of tests and what specific test is completely up to the officer. The officer can request a blood and breath and urine test or only one or only two of the three options. As far as consent goes, the way that Arizona law has been decided by the courts, basically anything other than outright consent is considered a refusal unless the person is passed out or in a state where they are incapable of refusing.
If the person were to say, “Well, I’m not sure,” “Maybe I want to talk to a lawyer,” “Who is going to be drawing my blood?” any of that is not enough to provide consent and, therefore, would be considered a refusal. That is supposed to prompt the officer to then read what is referred to as a no-further delay statement, where the officer is supposed to tell the suspect that what they have said or what they have done is considered a refusal.
If they continue to refuse, their license will be suspended for one or two years and then they will attempt to request to get a warrant from a court and draw blood by force if necessary or they assure if they want to continue to refuse. The person should then be given a second opportunity to either consent or continue to refuse, and then the officer is very likely going to be able to get a warrant to draw the person’s blood.
The suspect will then have to deal with a one- or two-year license suspension depending on what happened in the past if they previously refused a request for a blood, breath or urine test and regardless of what happens to the case itself, they may have to deal with that one- or two-year license suspension; however, it is possible to request a hearing and challenge that suspension of the person’s license for a year at a Motor Vehicle Division hearing.
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 480-900-0384 today.
