Can the Police Take Your Blood if You Refuse the Breath Test?

Can the Police Take Your Blood if You Refuse the Breath Test?


Can the police take your blood if you refuse
to do the breath test? Yes. Hi, I’m Andrew Flushe. I’m your Virginia DUI
attorney. I’m seeing this more and more often in DUI cases, especially out of Stafford County,
where if someone refuses to do the breath test, then the police go get a search warrant
and take their blood. This unfortunately is legal assuming the proper procedure and protocol
is followed. The police, at least in Virginia, if you refuse the breath sample at the breath
police station, then they can take your blood. Keep in mind, there is an important distinction.
You can always, in Virginia refuse the roadside handheld breath test. However, once you’re
arrested, then the breath test that they ask you to do at that point, that one you need
to submit to, or you’re facing the possible charge of refusal, and increasingly you’re
facing the possible risk they will go ahead and get a search warrant and get your blood
anyway. The search warrant has to be a course supported
by probable cause. They can’t just go in and say, “I want a search warrant to get this
guy’s blood.” Just willy nilly, they need probable cause that there’s actually evidence
in your blood which would be alcohol or drugs to support their charge in the DUI of course.
Don’t worry that the police can just go get anyone’s blood that they want, however, if
you’re arrested for DUI, then they can maintain probable cause standard that you were driving
under the influence of drugs or alcohol. They can go file for a search warrant to go ahead
and get your blood, and it kind of delays the whole process, but it’s something that
the police can do and increasingly they are doing. Always keep in mind what we talked
about at the beginning that the handheld breath test on the side of the road, you can refuse,
it’s the one once you’re cuffed. They say, “Okay now, I’ve got a bigger test at the police
station, or the sheriff’s office or wherever. I want you to do that test. They read you
the card about an implied consent saying you have to do that test or you’ll be charged
with refusal. That’s the one where if you refuse that one,
they can go apply for a search warrant if they want and if they have the manpower to
do it. Keep that in mind. If you’re charged with a DUI under any of these circumstances,
definitely contact me so we can discuss whether or not the search warrant was done properly.