Nonconsensual Sample – DUI Blood Test

In Schmerber v. California, the Supreme Court held that the withdrawal of a blood sample from the defendant without the defendant’s consent did not constitute an unlawful search and seizure and that the use by the prosecution of the results of a DUI blood test did not violate due process of law, the defendant’s Fifth Amendment privilege against self-incrimination, or the defendant’s Sixth Amendment right to counsel. It has been repeatedly held by numerous other courts that the obtaining of a non-consensual blood sample from the defendant in a drinking-driving case does not constitute an unlawful search and seizure nor a Fifth Amendment violation. However, the use of excessive force to do a DUI blood test (i.e., force that “shocks the conscience”) may constitute an unreasonable search and seizure. It should be noted that the implied consent law in many states forbids the use of force to obtain a blood sample.

The Supreme Court has held that it is constitutionally permissible to withdraw a blood sample from an unconscious defendant and use the DUI blood test results therefrom against the defendant. The Supreme Court has also held that it does not violate a defendant’s privilege against self-incrimination or due process of law for the prosecution to show at trial that the defendant refused to take a chemical test, even if the defendant was not warned that the refusal could be used against him at trial.

Evidence obtained by the police as a consequence of an unlawful search of the defendant or the defendant’s property is inadmissible under the exclusionary rules described above in this section. In the absence of the use of excessive force to obtain the DUI blood test sample, the obtaining of a non-consensual blood sample from a defendant does not constitute an unlawful search and seizure under the Fourth Amendment.