When a person is suspected of driving under the influence, the police will attempt to take a blood sample from that person in order to determine their blood alcohol level. Most states have some variation of the implied consent law, meaning if you drive you are giving consent that you will be subject to DUI testing should you be suspected of driving under the influence. In some cases the Department of Motor Vehicles in your state will advise you that, as a condition of getting your driver's license, you are consenting to a chemical test should you ever be suspected of DUI. The penalties for not cooperating when asked for a blood sample vary widely throughout the United States; in some states you can have your driver's license automatically suspended for refusing to take a blood test while in others you will only be cited for uncooperative behavior.
If you are stopped for suspected DUI and refuse the blood test, it does prevent the prosecution from introducing evidence of blood alcohol level. The flip side is that the consequences for refusing a blood test are potentially severe. In most states you do not have the right to consult with an attorney before deciding whether to give a sample of blood or breath.
Blood Test or Breath Test?
If you are given a choice between a blood test or breath test, keep the following in mind:
- Breath tests do not retain a portion of the breath so that it can later be independently tested. A skilled defense attorney can challenge the accuracy of the breathalyzer test based on the fact that many people are not good breath test candidates due to dental problems or persistent heartburn problems which can bring mouth-alcohol error on the part of the machines.
- Blood testing is generally believed to be the most accurate, but can also be subject to certain challenges and problems. Again, your attorney can charge that contamination from the alcohol swab compromised the blood sample or that failure to mix the preservative and anti-coagulant in the blood sample could cause it to ferment and create its own alcohol.
Drawing blood over your objections is serious, and some feel it can be considered assault and battery. The question arises as to how much force police should be allowed to use when extracting blood from an uncooperative suspect. Should medical professionals who are bound to obey patient's treatment wishes and protect their privacy be compelled to do otherwise? What about people for whom giving blood could potentially be life-threatening? You should make sure that you are knowledgeable about the DUI blood test laws in your state. If you are stopped for DUI your best hope for a positive outcome is a very experienced DUI attorney.
