Criminal Defense - Understanding No-Refusal Blood Draws During A DWI/DUI Checkpoint

Criminal Defense - Understanding No-Refusal Blood Draws During A DWI/DUI Checkpoint


It is not uncommon to see a sobriety checkpoint operated contemporaneously with a "no refusal" blood test. A no refusal blood test is simply an indication that a judge will be on duty to sign a warrant authorizing the police to take a blood sample from a suspected drunk driver provided the police can establish there is probable cause to believe the driver was drunk. In these cases, the police officer conducting the DWI investigation will ask a suspected drunk driver to submit to a breath test. When the driver refuses, the police officer will prepare a warrant for the judge's signature. Many states allow for telephonic warrants which is most likely the method used for the no refusal blood draw cases. In other words, the police can simply call the judge and advise them why the feel a particular person is driving drunk and, if the judge agrees, a verbal warrant can be issued. Once the judge approves the warrant, the driver is forced to provide a blood sample that will be tested for alcohol and drugs. As a practical matter, this is a pre-arranged event with a judge on "stand-by" prepared to accept calls while a checkpoint is on-going. So, in essence, the driver can submit to a breath test or be forced to give a blood sample. Either way, incriminating evidence will be gathered. So, how do you feel about your 5th Amendment right against self- incrimination?

An experienced criminal defense attorney can challenge these warrants. Although suppressing evidence derived from a search warrant is a difficult task, a qualified attorney can examine the officer to determine whether he intentionally withheld any material information that would cause a judge to question whether probable cause existed to justify the warrant. Additionally, since many of these cases are telephonic warrants, a good criminal defense lawyer can review how the warrant was obtained to make sure proper procedure was followed. If the officer failed to comply with the detailed procedures necessary for obtaining a telephonic warrant, then the warrant is invalid and the forced blood sample can be suppressed. Now, that may not end the case since the officer's observations- including the field sobriety tests- may still be admissible since they preceded the officer's attempt at obtaining the warrant.

These no refusal cases are becoming more common. In fact, a recent Supreme Court ruling contemplates the possibility of obtaining a forced blood sample without a search warrant. In those instances, the Court is open to the possibility that an officer may not have time to obtain a warrant and, fearful that the blood evidence will be destroyed simply due to the passage of time, may force submission to a blood draw. The Court advises the appropriateness of this tactic will be judged on a case by case basis and should not be used whenever obtaining a warrant is possible. Do you want to become the test case?

The police are coupling DWI/DUI checkpoint with forced blood draws in an effort to combat drunk driving. Both procedures are quite technical. A good criminal defense trial lawyer will be able to review the procedure used by the police and should be able to suppress any evidence unlawfully obtained. Andre Belanger is a trial attorney handling DWI/DUI arrests throughout Louisiana and Mississippi. If you've been arrested during a DWI/DUI checkpoint or if you had your blown drawn during a DWI/DUI arrest, call and set an appointment to see how he can help

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