Do police need a warrant for blood draw in California cases?

A relatively new California law involving forced blood draws, in the context of DUI cases, states that no warrant is required for the draw when:

1. an officer directs that your blood be drawn to measure blood alcohol content (BAC), and
2. you freely and voluntarily choose a blood test over a breath test.

This law was established in 2018 in the California court case of People v. Gutierrez. Prior to this case, the law stated that while a breath test after a DUI arrest does not require a warrant, a warrant is still required for a blood draw.¹

What is the California law regarding forced blood draws?

Police do not need to get a warrant as long as you are given the choice to take a breath or blood test, and you choose to take the blood test.

In People v. Gutierrez, police officers found the defendant sleeping in his parked car and eventually arrested the man for driving under the influence. The police then informed him that the law required him to submit to a blood or breath test. Gutierrez chooses the blood test.

The court stated that one of the key facts was that Gutierrez was given the option of the two tests. It stated:

“this element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.”²

Are there other scenarios in which police can require a blood test?

There are three conditions in which police can require a person to take a blood test. These are when there is:

1. a warrant for the test,
2. suspicion of a California felony driving under the influence (DUI), and/or
3. suspicion of driving under the influence of drugs (DUID), per Vehicle Code 23152f and 23152g.

As to the second condition, a DUI becomes a felony when:

• it causes injury,
• you have three or more DUI or wet reckless convictions within the prior 10 years, and
• you have at least one prior felony DUI conviction.

As to the third condition, an officer can require you to submit to a DUI blood test if they have a clear indication that it would show the presence of drugs.

An officer may gain a “clear indication” via:

• your statements,
• objective symptoms of drug intoxication, and/or
• physical evidence of drug use.³

Is a warrant needed for a breath test?

A warrant is not required to have you give a breath test following a lawful arrest for DUI.

California’s implied consent law makes it mandatory for you following a DUI arrest to submit to a breath test to determine your blood alcohol concentration.

If you violate this law (for example, you refuse to take a breath test), you will receive certain penalties. These include:

1. increased penalties in addition to the standard California DUI penalties, and
2. a mandatory driver’s license suspension that occurs regardless of the outcome of your DUI case.⁴

Can I refuse to take a breath test before a DUI arrest?

You may refuse to take a breath test prior to being arrested for DUI.

After you are pulled over for DUI, but before you are arrested, you may be asked to take a hand-held preliminary alcohol screening (PAS) breath test.

This is basically a roadside breath test. It is just another field sobriety test (FST) – like walking in a straight line. An FST simply helps police decide whether or not to arrest you for DUI.

There is no penalty for refusing to take a PAS breath test unless you are either:

• under the age of 21, or
• on probation for a prior DUI conviction.

Further, as long as you are at least 21 and not on DUI probation, refusal to take a PAS test may not be admitted at trial as evidence of guilt.

Note though that if you do agree to a PAS test, the results of the test can be used to help convict you of a DUI.⁵

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Keeping DUI Implied Consent Laws Implied – Willamette Law Review article about the utility of chemical test refusal laws.
• Admissibility of Refusal to Submit to Blood Alcohol Test – Nova Law Journal article about whether chemical test refusals can be used as evidence in a trial.
• Refusal to Submit to a Chemical Test: Whether Refusing Really Counts as a Refusal – JFK University Law Review.
• The Admissibility of Refusals in Drunk Driving Prosecutions: A Violation of the Fifth Amendment – Pacific Law Journal.

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Legal References