In the right circumstances, the police are permitted to do a forced blood draw for a DUI case under the right circumstances. Usually, I see them being allowed to do it when you've been involved in some accident. Somehow, that green lights them to be able to force blood. Then the next question becomes if they move my blood and have the blood result, can they get me for a refusal because they have the blood result?
The reality is if the police ask you to take your blood or breath related to a DUI investigation, you have to cooperate with them. If you don't cooperate with them and you say no, and then they're forced to take your blood, technically, that's a refusal, and that's bad.
Because you then get a refusal on your record, you lose your license for a year with no restriction. Interestingly enough, I've seen these forced blood draw cases somehow ensure the benefit of a defendant in a DUI case in Los Angeles because a lot of times, the prosecutors do not file it as a refusal. You can argue with the DMV that it's not a refusal because they have the result.
Sometimes they claim the person refused and the person didn't refuse. That's another issue that has to be dealt with. But the answer to the lead tag question here as to whether they can force your blood in a DUI case is an absolute yes. I don't see them doing it, and I don't think they have justification for doing it in every single DUI case. See Related: What Happens If You Refuse To Take A Drug Test?
I think it's typically going to be one where there's an accident, maybe people were hurt — and then the police, by law, is justified in forcing your blood.
Providing a Breath Sample
But they can typically only do that if you don't cooperate with them. In other words, if you cooperate with them and are willing to give a breath sample, that's just as good as a blood sample. That would satisfy the law. That would meet your requirements to cooperate with the police related to your DUI, so I think it would be impermissible to force your blood when you're willing to give them a breath test.
All of these circumstances spin on the facts of your case. What I have you do comes to the office. We go over everything under the cloak of the attorney/client privilege, and then we'll start talking about the plan moving forward.
Reviewing Your DUI Case
What are we going to do on this forced blood draw case? Do we have a defense? Was the blood tainted in any way? Can we hire an expert that might help us in the case, or is this one we will have to negotiate and resolve for the best possible resolution? These are all things we talk about.
I will put my twenty-five years of experience to work for you, so you make the best decision if the police have forced your blood. The next issue we're looking at is, if they moved your blood, is your blood alcohol level a .08 or more significant because if it's not and it's lower, you've got a good argument that you shouldn't be a DUI case.
So, this 23152(b) Vehicle Code Section has to do with if they force your blood and you're over a .08 or greater, they can charge you with a DUI because it's presumed that you can't safely operate a motor vehicle.
On the other hand, if they force your blood and get a result, it's under a .08. The only Section they're going to be able to go under is 23152(a), which says you're driving a motor vehicle and you have alcohol in your system, and you can't safely operate that motor vehicle.
That's when they're going to start looking at other factors besides what your blood alcohol level was — how you were driving, whether you got into an accident, how you performed on the subjective field sobriety tests, and a whole host of other factors like your breath, your eyes — all sorts of things they can look at when they're trying to determine whether you're a DUI related to a forced blood draw in Los Angeles County.