When medical professionals draw blood from a DUI suspect, there is an Arizona Statute (A.R.S. § 28-1388(E)[1]) which, on its face, may seem to remove the necessity for a warrant. Such may be the training some law enforcement agencies give to their officers.

But as evidenced in a case I recently handled, Courts should probably require warrants for blood draws in all but the most extreme cases.

In that matter, the Officer asked that a sample of the suspect’s blood be drawn for law enforcement purposes in the event that the blood was drawn for medical purposes. Blood was drawn an hour and a half after the stop, and the officer took a sample for DUI investigation testing. The client had never given consent to the Officer for the draw or any other search.

The Arizona Supreme Court, in 1985, interpreted A.R.S. § 28-1388(E)[1], in light of constitutional concerns, to allow the warrantless seizure of blood only “if 1) probable cause exists to believe the person has violated [the DUI statutes in effect in 1985]; 2) exigent circumstances are present; and 3) the blood is drawn for medical purposes by medical personnel.” State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985). So, it’s not enough to say that there is probable cause (bad driving and all that stuff) and the blood was drawn for medical purposes. Exigent circumstances must also exist if the police officer’s use of the statute is to survive scrutiny under the Fourth Amendment.

In this case, the Officer didn’t make any effort to obtain a warrant. Obviously I was not pleased (nor was my client), and we moved to suppress. Here’s the rub against the officer; once the blood is drawn, there is no longer a possibility of exigent circumstances to exist.

It is fairly common knowledge that Blood drawn for DUI investigations stops metabolizing once it leaves the body. That being the case, we know that this particular piece of evidence can no longer be subject to the exigency exception. Were this not so, the actual chemical analysis on the blood would have to occur immediately, instead of ‘whenever the lab gets to it’, as is usually the case.

Because once the blood leaves the body, and there is no longer a scientific reason for an exigency argument, shouldn’t a warrant be absolutely mandatory under 4A? One would think so. Additionally, one would expect officers to be trained in this regard!

Sadly, this fight had to be fought because no warrant was ever requested. And in the end, the blood sample was Suppressed by the Court. #HappyClient

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