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Forcible Roadside Blood Draws in Drunk Driving Traffic Stops on the Rise Nationally

Recent articles from across the nation show a disturbing trend of allowing police to forcefully draw blood from drivers suspected of being drunk. In April, the Missouri House passed a bill allowing police in that state to draw blood without a warrant, and the Illinois legislature was considering a bill to streamline the process for obtaining warrants for forced blood draws. As a Massachusetts drunk driving defense lawyer, I think it’s important to fully think through the consequences of laws like this before enacting them.

Legislators and law enforcement personnel feel that the prospect of a forced blood draw will deter drunk drivers. “People will not drink and drive if they think they’ll have a needle stuck in their arm,” said Kane County (Ill.) State’s Attorney John Barsanti. The Illinois Secretary of State’s Office reports that about 40% of the 50,000 people charged with drunk driving in that state each year won’t submit to a Breathalyzer test, and many drivers also refuse officers’ requests for blood and urine samples. State laws often repay drivers who refuse to take a breathalyzer test by suspending their driver’s licenses, as Massachusetts does. But the lack of evidence in cases where drivers refuse to provide chemical samples makes it harder for the state to convict drivers of drunk driving. So it’s understandable that the state would see forcibly taking such evidence as a good solution to increasing their drunk driving conviction rate.

However, in my view as a Massachusetts OUI defense attorney, forcibly taking blood from drivers by the side of the road presents several legal and medical problems. The Supreme Court ruled in Schmerber v. California in 1966 that forcibly taking blood does not violate someone’s right against unreasonable searches and seizures or forced self-incrimination, even without a warrant. Even though the Schmerber court never truly addressed the case’s Fourth Amendment issues, this ruling remains the law of the land. But importantly, a physician was the one drawing the suspected drunk driver’s blood in that situation. Medical professionals spend many hours learning how to draw blood correctly. Police officers do not get that training, because it’s not part of their job — and occasionally, that lack of training causes medical problems. There has already been at least one claim that a suspect suffered persistent infection at the site of a blood draw performed by a police officer. There could also be harm to suspects who, for example, have severe hemophilia and cannot stop bleeding once their vein is punctured. A medical professional would know how to handle a situation involving this kind of special medical need, but a police officer with minimal training might not. So the practice of forcible blood draws could put suspects at unreasonable risk of harm.

Forcible blood draws also don’t even necessarily solve the state’s evidence problems. The blood test may be a more reliable indicator of blood-alcohol content than breathalyzer test results, but that’s only if the blood test procedure is followed exactly. Blood testing kits may not work correctly if they aren’t stored at the right temperature, so they can yield inaccurate results. Plus, the skin needs to be cleaned before a needle can be used to draw blood, but both alcohol and iodine, which are commonly used for this purpose, can interfere with the BAC results. And the more people who handle the blood sample, the more opportunities there are for the chain of custody to be disrupted, and the more opportunities there are for someone to do something that interferes with the accuracy of the results. These are more reasons why it seems better to leave blood draws to trained professionals, rather than requiring police to take on a job they haven’t trained for and may not want.

As a Massachusetts intoxicated driving defense attorney, my goal is to help people who have been charged with OUI offenses get their charges dismissed or obtain not guilty verdicts. If you have been charged with OUI in Boston or eastern Massachusetts, please contact the Law Offices of Stephen Neyman right away for a free consultation. Even if you don’t believe you can fight your charges, we may be able to challenge blood test or breathalyzer results and the procedures that police officers used to obtain them. For more information, please call us at (617) 263-6800 or contact us online.

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