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Blood and the Fourth Amendment (Apr. 29, 2016)

The Fourth Amendment of the U.S. Constitution protects us against the government’s unreasonable searches and seizures. This protection applies, most especially, where police seek to obtain blood from our bodies.

For example, if police officers suspect you of driving under the influence, they may want to test your blood-alcohol level to determine whether it’s above the legal limit. If they don’t violate the Fourth Amendment, they may be able to use the results of the blood test to incriminate you. If, however, they run afoul of the Amendment, a court may suppress the blood results so that the government cannot use those results against you at trial.

So, the threshold question is: Did a Fourth Amendment violation occur? To answer that question, we must look first to the text of the Amendment, which says, in relevant part:

The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

Based on this plain text, police officers must obtain a warrant before they may seize a person’s blood. But a person may voluntarily consent to a blood test, in which case the officers don’t need a warrant. In other words, consent is an exception to the warrant requirement. So, if the officers obtain valid consent, they need not seek a warrant; by the same token, if they obtain a valid warrant, they need not seek consent.[2]

This understanding of the Fourth Amendment is so basic that it is, for all intents and purposes, axiomatic. But you’d be surprised how some attorneys miss this point.

In Blackburn v. State, the Nevada Supreme Court specifically recognized that the Fourth Amendment “requires that a warrant be obtained before the State may collect a biological specimen [like blood] from a suspect,” except that a “search conducted pursuant to a valid consent is exempted from the warrant requirements.”[3] Later, in Byars v. State, the high court reaffirmed that, absent consent (or another exception), courts should not “retreat from the warrant requirement for nonconsensual blood draws.”[4] Where consent is in doubt, the high court said law enforcement may readily comply with the Fourth Amendment by obtaining a warrant before a blood draw and test.

Despite this understanding, I had to oppose a motion to suppress blood results in one of my cases where police officers obtained a warrant for a blood draw and test. The warrant was valid, and the defendant did not and could not suggest otherwise. After all, the warrant was based on probable cause and described with particularity the item to be seized: the defendant’s blood.

When police officers stopped the defendant for speeding, he had bloodshot eyes and an open container of beer in his vehicle. He admitted to drinking before driving. He failed all field sobriety tests they had him perform. And he refused to take a preliminary breath test. Under “the totality of the circumstances,” the officers had probable cause to suspect the defendant of a DUI offense because the above facts, when taken together, created “a fair probability” the defendant had been driving under the influence.[5]

Incredibly, the defendant argued the officers violated the Fourth Amendment because they had forced him to submit to a blood test when, although he refused a preliminary breath test and initially refused both a blood and breath test, he later consented to a breath test. To the extent the defendant’s consent was in doubt, officers in no way ran afoul of the Fourth Amendment when, out of an abundance of caution, they sought and obtained a warrant to draw and test the defendant’s blood. This was the thrust of the Nevada Supreme Court’s recent opinion in Byars, as set forth above.

The key takeaway is that no Fourth Amendment violation occurs where, as was the case, the officers obtained a valid warrant in lieu of the defendant’s consent for an evidentiary test. Although I have not found a case in which the Nevada Supreme Court said so explicitly, this is the clear implication of its precedents, including Blackburn and Byars above. And several courts in other states have forthrightly held that their state implied consent statutes do not apply where police have a warrant to conduct a particular evidentiary test.[6]

Yet the defendant confused matters by citing Nelson v. City of Irvine,[7] a class action brought against a city for alleged violations of California’s implied consent statute. Nelson held, in pertinent part, that “obtaining blood samples from . . . class members who requested or consented to undergo breath tests instead of blood tests was unreasonable [under the Fourth Amendment] if breath tests were actually available.”[8] But the defendant conveniently overlooked the fact that the city in Nelson never sought, much less obtained, a warrant to conduct blood tests on class members; instead, the city relied on each class member’s express or implied consent.[9] Thus, in Nelson, the city violated the Fourth Amendment because, absent consent for a blood test (or another exception), the city didn’t comply with the warrant requirement. By contrast, the State in my case had a valid warrant to draw and test the defendant’s blood.

Even if Nevada’s implied consent statute somehow applied in my case, the officers didn’t violate the statute because the defendant refused a preliminary breath test and, moreover, initially refused both a blood and breath test. In fact, the statute required the officers to do what they did: “apply for a warrant or court order directing reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested,” because the defendant refused or failed to submit to “a” required test, including a preliminary breath test.[10] In sum, the plain text of the statute required the officers to obtain a warrant to draw and test the defendant’s blood; nothing in the statute required them to offer the defendant the choice of a breath test.

Relatedly, the Nevada Supreme Court has held that, under Nevada’s implied consent statute, “an officer has no duty to renew an offer of testing after it has been refused.”[11] “Once a driver refuses to take any one of the chemical tests,” the high court explained, “the law does not require that he later be given one when he decides he is ready to submit.”[12] To the extent there was any ambiguity, the high court chose to follow “a liberal interpretation of the implied consent laws for sound public safety reasons,” including the legislative policy of removing intoxicated drivers from Nevada’s highways.[13]

Schroeder v. State is instructive here.[14] In Schroeder, the suspect initially refused to submit to an evidentiary test and, after 40 minutes, asked to submit to a test. The department of motor vehicles revoked his license based on his refusal; he appealed, arguing that he hadn’t refused the test because he later consented to it. The Nevada Supreme Court rejected his argument on the ground that “no sound reason exists to give a driver the opportunity to delay a test to his benefit, and which would be contrary to the implied consent statute’s purpose of obtaining an accurate indication of his condition.”[15] In any event, though a suspect’s refusal of consent might be relevant for the administrative penalty of license revocation, it is in no way a constitutional prerequisite for a warrant. And nothing suggests that it is a statutory prerequisite under Nevada’s implied consent statute.[16]

The bottom line is that the Fourth Amendment is an important safeguard against government abuse and overreach. But it doesn’t require perfection, only reasonableness.[17] And there’s nothing unreasonable about police obtaining a warrant where the defendant's consent to a blood test is, arguably, in doubt.

Indeed, absent an exception to the warrant requirement, that is precisely what the Fourth Amendment commands.

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[1] U.S. Const. amend. IV.

[2] See, e.g., Nelson v. City of Irvine, 143 F.3d 1196, 1200 (1998) (holding that a search under the Fourth Amendment “must be reasonable,” “must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement” (emphases added)); United States v. Freeman, 144 F. Supp. 669, 670 (D.D.C 1956) (“A search made pursuant to a valid search warrant . . . complies with the requirements of the Fourth Amendment.”).

[3] 281 P.3d 1155 (Nev. 2009); see also Byars v. State, 336 P.3d 939, 945 (Nev. 2014) (“Consent to a search also provides an exception to both the Fourth Amendment’s probable cause and warrant requirements.”).

[4] 336 P.3d at 946.

[5] United States v. Sokolow,490 U.S. 1, 7–8 (1989).

[6] See, e.g., Stovall v. State, 440 S.W.3d 661, 669 (Tex. App. 2011) (“When a valid search warrant is obtained for a blood or breath sample, the requirements of [Texas’s implied consent statute] do not apply because there is no need to obtain the arrested suspect’s consent.”); State v. Zielke, 403 N.W.2d 427, 433 (Wis. 1987) (“[W]e hold that if evidence is otherwise constitutionally obtained, there is nothing in the implied consent law which renders it inadmissible in a subsequent criminal prosecution.”).

[7] 143 F.3d 1196 (1998).

[8] Id. at 1203.

[9] See, e.g., id. at 1199 (“Capler initially agreed to take a blood test but then changed his mind and informed the arresting officer that he wanted to take a breath test . . . [and] the officer told Capler that he could not change his mind and must submit to a blood test [without a warrant].”); id. at 1200 (“At issue, then, is whether . . . [an] exception to the warrant requirement existed to excuse the police from obtaining warrants.”).

[10] NRS 484C.160(8) (amended by A.B. 67, effective June 9, 2015; emphasis added).

[11] State v. Brough, 796 P.2d 1089, 1092 (Nev. 1990).

[12] Id. at 1091 (internal quotation marks and alteration omitted).

[13] Id. at 1092.

[14] 772 P.2d 1278 (Nev. 1989).

[15] Id. at 1280.

[16] Cf. State v. Stanley, 172 P.3d 848, 853 (Ariz. 2007) (holding that refusal to submit to a blood test is not a statutory prerequisite to obtaining a search warrant under Arizona’s implied consent statute).

[17] Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“To be reasonable [as required by the Fourth Amendment] is not to be perfect[.]”).

I have made this blog available for educational purposes only, not to provide specific legal advice. By using this blog, you understand that there is no attorney–client relationship between you and me. This blog should not be used as a substitute for independent legal advice from a licensed professional attorney in your state.