Forced Blood Test After DUI Test Refusal

A 2006 decision in McAllister v. Georgia allows members of law enforcement to seek a search warrant that allows them to take blood from individuals suspected of DUI, even after individuals refuse to take a chemical test under the Georgia law of implied consent. This law is located in section (d.1) of O.C.G.A. § 40-5-67.1.

If you are facing a DUI charge in Georgia, you may have had your blood forcible drawn even after you refused to submit to a breath test or other chemical blood alcohol concentration (BAC) test. As uncomfortable as this procedure sounds, the Georgia Code allows for police to perform the blood test, as long as they successfully obtain a search warrant to do so.

However, like any DUI arrest procedure, the warrant-based blood test must be conducted properly and the evidence must be collected accurately. Any misstep or oversight during the procedure is a violation of the law and abuse of your personal rights. If you or a loved one was forced to take give blood evidence, contact an Atlanta DUI defense attorney immediately!

How can the police force me to submit to a blood test?

Members of law enforcement can ask a judge to issue a search warrant in relation to the DUI arrest. This is not as easy as it sounds. A police officer will not receive a search warrant simply because he or she asks for one—the officer must be able to demonstrate ample evidence of suspected intoxication in order for a judge to grant the search warrant. If the officer successfully obtains the warrant, they are legally allowed to draw your blood despite your lack of consent, and you are legally obligated to submit to this test.

Isn't this a violation of my rights?

Remember that the law of implied consent only applies to chemical BAC tests requested after you have been placed under arrest. By the nature of police arrest, this means that the officers believe they have already collected enough evidence to demonstrate probable cause. If you have been arrested under suspicion of DUI and the officer has informed you about the law of implied consent, then you may face the license suspension punishment if you refuse the chemical BAC test. If the officers believe they have enough evidence for an arrest, there is a chance that the judge will also believe this, and grant the search warrant.

What are my next steps after a forced test?

After a blood sample has been collected via a search warrant, the legal procedure is no different than any other DUI. You may be facing automatic license suspension, and in the near future, you may be facing a criminal trial. The forced blood BAC test does not change the fact that individuals have the opportunity to fight the DUI in court.

Evidence acquired from a forced blood test may still be inadmissible in court. If the warrant was improperly obtained, or the procedure was improperly conducted, it may not be used as legitimate evidence during a court hearing on your DUI conviction. Our Atlanta DUI lawyers have 40+ years of experience handling over one thousand DUI cases. We understand the law when it comes to blood test evidence obtained through search warrants.


Learn more about The Law Offices of Howard J. Weintraub, P.C. and how we may offer you the dedicated DUI defense you deserve!