Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?

In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.

So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?


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The Forcible Extraction of Blood in Impaired Driving Cases: How Much Force Is Too Much Force?

The lead story in the January 30, 2012 issue of North Carolina Lawyer’s Weekly was headlined “Necessary’s Restraint:  The night police officer Richard Necessary sat on a drunk-driving suspect in order to get a blood sample might prove to be the night when courts realized enough is enough.” The newspaper reported that a superior court … Read more


Warrantless Blood Draws and the Fourth Amendment (Again)

A recent en banc decision from the Supreme Court of Missouri adds to the growing divide among state appellate courts regarding whether the exigency created by the dissipation of blood-alcohol levels is sufficient, by itself, to render a nonconsensual, warrantless blood draw from a person arrested for impaired driving a reasonable search and seizure under … Read more


PBTs and the Fourth Amendment

At the start of the fall semester, the Daily Tar Heel reported that Chapel Hill and Carrboro police officers have combined forces with UNC campus police in an effort to ramp up enforcement of laws prohibiting underage drinking.  The article states that undercover operations are among the tactics employed by the town’s Alcohol Law Enforcement … Read more

Blood Draws in DWI Cases

Update: Check out this post about a recent court of appeals case in this area. Original post: Most DWI cases involve breath tests for alcohol. But there are circumstances in which blood tests are administered. Most often, this happens when the defendant is injured in an accident and so cannot take a breath test. It … Read more