I’m often asked the same few questions, so I naturally decided to a “Fact or Fiction” blog series. This week’s topic is whether or not police officers can force you to provide a blood sample or not.
I remember a specific news story several years ago out of Cobb County, Georgia regarding this very topic. Basically, WellStar Health System policy prohibits hospital staff from performing blood tests on suspects if the suspect refuses, even if the police have a search warrant to perform the blood test. A WellStar spokesman stated as follows, “We have long-standing policies that do not allow our caregivers to take blood samples without patient consent. This is for the safety of everyone involved. Our caregivers are trained to care for our consenting patients. Our policy does not restrict law enforcement from carrying out a warrant or interfere with those efforts.” In other words, WellStar hospitals will not allow their personnel (nurses, etcetera) to draw blood from conscious and alert DUI suspects without their direct consent. While a court order can compel a suspect to give up blood in a DUI investigation, it cannot force a hospital to take it.
But that was Georgia, and the question is, is this the case in Greenville, South Carolina? The short answer is if police have probable cause to believe that a person has been Driving Under the Influence (DUI) and arrest the person for DUI, and then a licensed medical personnel determines that the person is physically unable to provide a breath sample, police may request a blood sample. If the person refuses to consent to the blood draw, police must obtain a search warrant to take the sample. Even if police have a search warrant, they may not use tactics that “shock the conscience” to take a blood sample from someone who is not consenting to the test.
The legal analysis in South Carolina regarding blood drawn for legal reasons is as follows: South Carolina’s Implied Consent statute states that any person who drives a motor vehicle in the state of S.C., “is considered to have given consent to chemical testing of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.” S.C. Code §56-5-2950(A).
Therefore, since this implied consent to testing comes into play only after an arrest for alleged DUI, the police must first have probable cause to believe that a person was DUI before such consent is implied.
If the police arrest a person for DUI, they first must offer the suspect a breath test, unless a licensed medical personnel determines that the person is “physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by licensed medical personnel.” S.C. Code §56-5-2950(A). See also State v. Kimbrell, 326 S.C. 344, 481 S.E.2d 456 (S.C. Ct. App., 1997); Columbia v. Moore, 318 S.C. 292, 457 S.E.2d 346 (S.C. Ct. App., 1995); Peake v. S.C. Dept. of Motor Vehicles, 375 S.C. 575, 654 S.E.2d 284 (S.C. Ct. App., 2007). If licensed medical personnel make that determination, the arresting officer may request a blood sample to be taken.
A person arrested for DUI may refuse the officer’s request for a blood sample. If the person refuses the test or is not able to consent to the blood draw (e.g., if they are unconscious), a law enforcement officer must obtain a Search Warrant to take the blood sample. See Missouri v. McNeely, 133 S.Ct. 1552 (2013) (the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in drunk- driving cases). Even if police obtain a search warrant for a blood draw, they are not permitted to use unreasonable force in seizing the blood. See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205 (1952) (finding a violation of the Due Process Clause of the Fourteenth Amendment where police forced open the suspect’s mouth and forcefully extracted the contents of suspect’s stomach to retrieve drugs; this conduct by police “shocks the conscience,” and to sanction this “brutal conduct” would be to “afford brutality the cloak of law.”)
If a person consents to a blood draw, or if police obtain a search warrant to draw blood for testing, the blood must be “obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility,” and must be “obtained and handled in accordance with procedures approved by SLED.” S.C. Code §56-5-2950(A). This requires the cooperation of these medical professionals, who can refuse law enforcement’s request to perform a blood draw. As noted in recent news out of Georgia, “A court order can compel a suspect to give up blood, but can’t force the hospital to take it.”
Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.
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