It seems a daunting task to challenge a blood test after a person has been arrested for a DUI or DWI. Frankly, it's no slam dunk to fight a blood test. But, neither is it an insurmountable mountain to climb. It takes diligent investigation of all the facts, knowledge of the law, and a solid understanding of science. Over the next few weeks, I will share a bit about what I've learned over the years as an attorney, as a prosecutor, judge and defense lawyer.
Once a suspect's blood has been drawn and analyzed, a result comes back with a list of possible substances that are in that person's body, as well as a purported measure of how much of those substances are present. Though specific to Georgia law in parts, especially in the beginning, later as we discuss the science of blood collection and analysis, those sub-topics are the same no matter the state or country. And, search and seizure law per our Fourth Amendment is going to be largely similar throughout the United States.
Going forth, our order of coverage for will be as follows: First, we cover The Legalities of Blood Draws, followed by Proper Blood Collecting Methods; and finally Chromatography: The Science of Blood Analysis. So whether you have a particular interest in this field of law and its overlap with science, or are a vampire, let's get bloody...
Part I: Blood Draw Legalities. The Constitution's Search Warrant Requirement
Before getting into blood collection methods and the science of whether a blood test is valid, there may be a legal basis for challenging and suppressing a blood test. Withdrawing blood from a person without their consent is a search and, thus in most instances, requires a search warrant. Indeed, the Supreme Court of Georgia has ruled that a warrantless search is presumed to be invalid and that the State has the burden of showing otherwise. Williams v. State, 296 Ga. 817, 819 (Ga. 2015).
The analysis of whether a search warrant is required to draw a person's blood after a DUI arrest is complicated and fact dependent. If the State can prove there was an emergency, or in legal parlance what are called “exigent circumstances,” then no search warrant will be required. The delay to get a search warrant is deemed unnecessary as otherwise vital evidence would be irretrievably lost. And, if a subject gives their consent to the blood draw, then the issue is moot – that is to say, there is no issue.
Further complicating the above analysis is the difference between giving consent to a blood draw under Georgia's Implied Consent statute (the statement an officer reads to a person upon their arrest for a DUI offense asking them whether they will consent to a State administered test of their breath, blood, urine or other bodily substance) and actual consent. This analysis approaches, in my opinion, a simplicity akin to determining how many angels can dance on the head of a pin. But I digress.
In Georgia, anyone who operates a motor vehicle upon the highways or elsewhere throughout the state is presumed to have given their consent to a test of their breath, blood, urine or other bodily substance if arrested for DUI. And, regardless of arrest for a DUI, if a vehicle operator is involved in an accident involving serious bodily injuries or death, consent to a blood test for the presence of intoxicants is presumed. OCGA § 40-5-55.
The above gives you a very quick, very surface overview of the search warrant requirements for a blood test. Stay tuned as coming soon will be...