The United Supreme Court ruled Wednesday that police usually
must try to obtain a search warrant from a judge before ordering blood
tests for DUI suspects. The case is Missouri v. McNeely, 11-1425.
The justices sided with a Missouri man who was subjected to a blood test
without a warrant and found to have nearly twice the legal limit of alcohol in his blood. Justice Sonia Sotomayor wrote for the court that the natural dissipation
of alcohol in the blood is generally not sufficient reason to jettison
the requirement that police get a judge's approval before drawing a
blood sample.
Missouri and the Obama administration were asking the court to endorse a
blanket rule that would have allowed the tests without a warrant.
In the opinion, the court briefly touched upon the availability of breath testing equipment as an alternative to blood testing. However, as we at the Morgan Defense Firm have argued, breath testing is inaccurate. In response to a Dauphin County Court of Common Pleas decision resulting from a case brought by our colleagues in the Defense Bar, the Pennsylvania State Police have stopped using breath testing devices. Moreover, the Pennsylvania appellate courts have consistently held that a defendant need not be offered a choice of test, nor does the defendant's fear of needles constitute a valid reason to refuse testing.
You need not worry about the forcible removal of blood, but the coercive affect of the implied consent law requires you to submit to blood testing in lieu of higher penalties and an automatic license suspension.
I am often asked if one should submit to blood testing. My response is "yes."
First, the Pennsylvania DUI law treats a refusal the same as the DUI-highest rate of alcohol. If you have only had a couple of beers, you may receive a lesser punishment. If you have had more than a few, the punishment will be the same.
Second, the automatic license suspension for refusal of a blood draw is consecutive to any suspension you receive for the DUI. In other words, you are looking at a minimum of 24 months of suspension. During a DUI-related suspension, the mere act of driving a vehicle (even without alcohol in your system) will result in a 60 day jail sentence.
Third, a refusal may make you ineligible for participation in the ARD program.
Fourth, and most importantly, our firm finds your BAC to relevant, but not the most important factor in fighting your case. Unlike other attorneys, we examine every aspect of your case beginning with the reason for the stop. As a result, we have achieved many successful DUI Defense outcomes including dismissal of charges when a persons BAC far exceeded .16%.
In one notable case, our client refused testing. We beat the charge only to have him pick up another DUI charge where the reason for the stop was based solely on his status as a suspended driver.
If you are asking yourself "Should I give a blood sample in a DUI Case?" the answer is yes.
