INVESTIGATION: Police in South take blood of suspected drunk drivers without consent

Published: Feb. 22, 2014 at 3:29 AM EST|Updated: Feb. 24, 2014 at 4:15 AM EST
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RICHMOND, VA (WWBT) - A controversial practice is growing in the South - cops are drawing blood from suspected drunk drivers, without their consent. Victims of drunk drivers say it's about time, but critics say the law goes too far.

"I want that camera on right now," an inmate screams. Cameras inside a Wyoming jail capture it all. A DUI blood draw in action. Five officers surround a suspected drunk driver, strap him into a chair and put a mask over his head. A nurse enters, quickly draws blood and leaves. It all happens in less than five minutes, without the suspect's consent.

"You can't force somebody to give a breath test. We can force somebody to give us blood," said Tennessee prosecutor Michael McCusker. It's the law in Tennessee. It's also a common practice in Georgia and Wyoming. It works like this: if a suspected drunk driver refuses a breath test, cops can now demand the driver give blood.

"They're done in a very civil fashion," said McCusker.

It's called implied consent, and it's something you agree to whenever you get behind the wheel. Even here in Virginia, licensed or not, if you're pulled over and the officer has probable cause to believe you've been drinking, then you automatically consent to a breath or blood test.

But in nearby states, cops are taking implied consent further. If you say no to a breath or blood test, they're getting a warrant to draw blood. Suspects are taken to the nearest police precinct where a licensed phlebotomist does the work. If you resist? "We have a facility here at the precinct where we are able to strap them down," said Lt. Michael Javer. "As far as putting something over his head, if they were trying to spit on us or something like that, we might try and find a mask."

Tennessee police say just the fear of a blood draw is working. DUI arrests are down more than 14%. DUI crashes down almost 5%.

Critics, however, say the law is flawed and may violate your 4th Amendment rights against illegal search and seizure.

"One of the keys to a blood draw is, if it is by consent, it has to be free from any threats or coercions. So the officers can't threaten them into it," said DUI attorney Claiborne Ferguson.

Forced blood draws are not part of the law in Virginia. "Currently here in Virginia, you cannot force anybody to take a breath or blood test. That is not permitted," said local attorney Matt Nelson. He primarily handles DUI and traffic cases.

He says in Virginia, you can refuse a blood or breath test, but you'll also be charged with refusal. "If you're charged with refusal, when convicted, the consequences of refusal on the first offense DUI are no driving privileges whatsoever. No restricted license, nothing."

Getting a warrant to force a blood test is a growing trend, and not everyone is worried it violates rights.

"Why do we have to give the drunk every privilege to be found not guilty?" asked Dell Russell. Her husband was killed by a drunk driver in 1995.

"We were high school sweethearts." She wishes blood draws had been the law then. The driver who hit her husband refused a breath test and prosecutors had no evidence to prove beyond a reasonable doubt he was drunk.

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