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Getting pulled over by police for a suspected DWI or DUI can be a stressful ordeal. This ordeal can be even more strenuous when suspects are subjected to a blood draw. The piercing of needles into the skin and removal of one’s blood is an invasive procedure that many may feel is an invasion of their privacy and autonomy. Therefore, many citizens may wonder whether they must consent to blood draws during a traffic stop. This blog post examines the legality of police-ordered blood draws and how to contest such blood draws in subsequent litigation.

Can Police Order a Blood Draw Without a Suspect’s Consent?

Amazingly, Minnesota law holds that in general, all drivers give consent to submit to a breath, urine, or blood test when suspected of driving while intoxicated. See Minn. Stat. § 169A.51 subd. 1(a). This is known as Minnesota’s “implied consent” statute. However, in the 2013 Supreme Court case Missouri v. McNeely, a plurality of the Court held that police are required to obtain a search warrant to order a blood draw unless exigent circumstances applied. The search warrant requirement for a blood draw has been recognized in the recent version of Minnesota’s implied consent statute. See Minn. Stat. § 169A.51 subd. 3(a). The warrant requirement is only dispelled if there is some other judicially recognized exception to search warrants. See id. § 169A.51 subd. 3(b). Furthermore, the 2016 Supreme Court case Birchfield v. North Dakota held that states could not criminalize the refusal to submit to a warrantless blood draw.

Overall, unless police have a suspect’s consent or a judicially-recognized exception applies, they must acquire a warrant to perform a blood draw. However, once a warrant is obtained, they have legal authority to withdraw one’s blood. A suspect should not refuse to submit to a blood draw if a lawful warrant has been obtained, or else they will risk incurring additional criminal penalties.

Who Can Decide Which Sobriety Test that Police Will Use?

Citizens may wonder if they can elect which sobriety test that they can take. Unfortunately, since 2017, police officers have the ultimate say about which sobriety test, breath, blood, or urine, they wish to utilize. Police will often choose to perform a breath test since it is quicker than a blood or urine test and can be performed at the scene of the traffic stop. Furthermore, unlike a blood test, a breathalyzer test does not require a warrant. That being said, if a police officer, for whatever reason, wishes to utilize a blood test, they have a right to pursue this test. But remember, unless an exception applies or you give consent, police must still obtain a warrant before ordering a blood draw.

Who Can Perform a Blood Draw?

A blood draw cannot be performed by just anyone. Blood tests will require the expertise of a medical professional. Therefore, if police desire a suspect to undergo a blood draw, they will have to transfer the suspect to a medical facility or hospital, where the blood draw can be properly performed.

What are “Exigent Circumstances” Where a Warrant Is Not Required for a Blood Draw?

As mentioned above, although a warrant is generally required for police to order a blood draw, this requirement can be dispelled if “exigent circumstances” are present. However, police cannot always point to the natural metabolization of alcohol in the human body as an exigent circumstance. In other words, law enforcement cannot use the mere fact that a suspect will sober up over time as a blanket exception to the search warrant requirement. However, police may be able to argue that there is an exigent circumstance if there is insufficient time to obtain a warrant in light of the metabolization of alcohol and other factors. However, any such argument can be vigorously opposed since search warrants for blood draws can be sought and received via fax, e-mail, or other electronic means.

Can You Challenge a Blood Draw Even If Police Acquired a Warrant?

Even if police had a warrant to conduct a blood draw, there are still a variety of legal challenges that one can bring against such tests.

Illegal Traffic Stops

A traffic stop is a seizure under the Fourth Amendment and requires reasonable suspicion that a crime has been committed. Therefore, police cannot just pull over a car for no reason. If there are no facts that can give rise to reasonable suspicion for a traffic stop, a subsequent blood draw that resulted from the stop can be challenged.

Breaks in the Chain of Custody

When evidence is seized at the scene of a suspected crime it will be transferred amongst multiple law enforcement officials. Police departments are required to keep a paper trail of all of these transfers of custody/possession to ensure that the evidence truly is what police say it is and that it hasn’t been contaminated. The legal term for this paper trail is the “chain of custody.” If there are any holes in the chain of custody for a blood draw, defendants can argue that the blood draw should be excluded from trial.

Contaminated Samples

Medical facilities and hospitals are not immune to making mistakes. Therefore, if there is any error in how a tester performed a blood draw, there may be grounds for excluding the blood draw at trial.

Unauthorized Draws

As mentioned earlier, not everyone can perform a blood draw. Therefore, if the tester is unqualified, the blood draw should not be admitted at trial.


Overall, getting arrested for a DWI or DUI can be a burdensome process, especially when blood draws are involved. Luckily, the lawyers of Dudley and Smith, P.A. can help you with any DUI or DWI charges that might be brought against you.