If you’re stopped in a DWI, can an officer draw your blood even without your consent? What protections do you have against a warrantless blood draw in a DWI case?

In North Carolina (and most states), your refusal to submit to an Intox EC/IR II breathalyzer test will result in what’s called a “refusal.” That refusal, in most cases in North Carolina, triggers a one year suspension of your license, even if you are never convicted of the DWI. This is a consequence of North Carolina’s implied consent laws. (You do have a right to an administrative hearing to fight your refusal.)

But what if you refuse to submit to a breath test or blood draw? Can the police still draw your blood? The answer to this is, probably “yes.”

But unless there are exigent circumstances, the police must first get a search warrant from a magistrate or judge. That search warrant must be supported by sworn testimony or an affidavit laying out the specific facts that the officer believes create probable cause that a crime was committed that justifies the search – in this case, the blood draw.

The search warrant requirement comes from the Fourth Amendment to the United States Constitution.

In Schmerber v. California, the Supreme Court held that, in a driving under the influence case (DUI), where there is an emergency or exigent circumstances, the police officer can order the blood be drawn against the defendant’s will and without his consent and without a warrant:


Until now, police have needed either a warrant, consent, or emergency conditions in order to draw blood. But what if there is no emergency? Under current case law, if police pull blood without an emergency, warrant, or consent, the results of the blood can be suppressed at trial as a violation of the defendant’s Fourth Amendment rights.

However, the state of Missouri seeks to modify this rule, and in a new case, Missouri v. McNeely the state, the United States, MADD, and the National Association of District Attorneys, have argued that the United States Supreme Court should create a per se rule that would allow police to pull blood any time they believe they have probable cause of a DWI even if they never get a warrant.

The police, government, and states want this right, even though the process of getting a warrant is so streamlined these days that police can get warrants sometimes within 20 or 30 minutes of an arrest.

Damon Chetson - 1000 posts


Blood Draws, Fourth Amendment, Search and Seizure