Can the police get a search warrant for my blood?

You were arrested for DUI and refused to voluntarily submit to a chemical test after the Georgia Implied Consent Notice was read. You are then surprised when, at the jail or precinct,  your DUI officer presents you with a search warrant for your blood. Can the police get a search warrant for your blood?

In Georgia, search warrants in Driving Under the Influence cases are governed by statute. The main statute for Georgia DUIs is OCGA 40-5-67.1.  The pertinent language of the subsections of the law for this issue are as follows:

• d) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department (Georgia Department of Driver Services).. 

• (d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

 

Police Officers do use search warrants for blood if they refuse to submit to their chemical test voluntarily. On July 1, 2006, a law took effect in Georgia that expands the available use of search warrants in Driving Under the Influence cases (OCGA 40-5-67.1(d.1)). This law was passed after the Georgia Supreme Court in State v. Collier, 279 Ga. 316 (2005), ruled that law enforcement officers could not use coercion techniques to obtain a blood sample by threatening to get a search warrant and use a catheter to receive it. During the Collier case, the DUI Implied Consent statute prohibited search warrants for bodily substances if a person refused to submit to a chemical test under the Georgia Implied Consent Notice. The 2006 legislation attempted to expand the use of search warrants in Driving Under the Influence arrests. Our experienced DUI lawyers in Georgia believe the final version of the bill falls short of allowing search warrants for blood, breath, or urine samples when a suspect refuses to submit a sample after being read the Georgia Implied Consent Notice. The “no test shall be given” language if a driver refuses the state chemical test is still in the statute’s current version. Our firm is also making a constitutional challenge to how the 2006 statute was passed by the Georgia Assembly (Georgia legislature). If the Cobb County Police Officer obtained a chemical sample from you after getting a search warrant, call us today, and we can explain in more detail how we are attacking the admissibility of chemical tests obtained by search warrants in Driving Under the Influence cases. Although you may have ultimately given a chemical sample to the Cobb County Police under a search warrant, your officer may still attempt to suspend your Georgia driver’s license or privilege to drive here in this state administratively if you initially refused to submit to a chemical test when the implied consent notice was read. See below for steps that may need to be taken to protect your driving privileges. Currently, the Cobb Police Department is taking the position that if a suspected DUI driver refuses a blood test under a search warrant, the police will not force a blood draw but will bring an additional charge of Obstruction of a Law Enforcement Officer and serve you with a notice of a license suspension action.