Last updated on November 2, 2021

Warrantless Blood Tests for DUI/OWI in Michigan

Do the police in Michigan have to obtain a warrant in order to draw blood from a DUI/OWI suspect? Under Michigan law (MCL 257.625a), a person can be charged with an OWI if that person’s blood, breath, or urine show any sign of alcohol if the person is under the age of 21, and if the blood alcohol content (BAC) is 0.08% or higher for anyone who is 21 and older. Sometimes Michigan police officers administer breathalyzer tests in order to determine a driver’s BAC, but a police officer also may require a driver to submit to a blood test if they prefer. Does a law enforcement officer need to have a warrant in order to force a driver to submit to a blood test?

This is a question that actually went before the U.S. Supreme Court, and in 2016 the Court ruled that warrantless blood draws are unlawful in most suspected drunk driving cases, while a warrantless breath test is lawful.

Understanding Warrantless Blood Draw Laws

When you are stopped on suspicion of drunk driving, in most situations a police officer is not allowed to require a blood draw to determine the driver’s BAC without a warrant. This would be known as a warrantless blood draw. According to the majority opinion in Birchfield v. North Dakota (2016), a warrantless blood draw is invasive enough that, without a warrant, it violated the Fourth Amendment of the U.S. Constitution. An article in the ABA Journal reported on the case, noting that the Court came to its conclusion by a seven-to-one majority.

According to Justice Alito, who wrote the majority opinion, warrantless blood tests are impermissible, but warrantless breath tests incident to arrest are allowed. Alito explained that the Fourth Amendment permits breath tests to be performed without a warrant because they do not infringe on a person’s privacy, while blood testing does. The Court then clarified that blood tests are different. As Alito writes, “blood tests are significantly more intrusive, and their reasonable must be judged in light of the availability of the less invasive alternative of a breath test.”

What You Should Do if You Were Subjected to a Warrantless Blood Draw After Being Stopped for an OWI

If you were stopped on suspicion of an OWI and were required to submit to a warrantless blood draw to determine your BAC, do you have any recourse? Since the Birchfield decision, a number of state courts have further interpreted the U.S. Supreme Court’s ruling. For example, a Wisconsin court said that a blood test was permissible when a driver was passed out from being drunk, while a Vermont court ruled that even if a driver refuses a warrantless blood draw, that driver’s refusal can be used as evidence against him or her in court.

Why does any driver potentially have to submit to a breath or a blood test? This is known as “implied consent.” When you get behind the wheel of a motor vehicle and are lawfully stopped by a law enforcement officer who has probable cause to believe you were driving while intoxicated, you have consented to have your BAC tested. Yet the legality of all methods for testing a driver’s BAC is not the same, and some are more invasive than others. More precisely, a blood draw is more invasive than a breath test, and as such, it typically requires police to have a warrant.

Contact a Michigan Drunk Driving Defense Lawyer

If you were stopped for an OWI and subjected to a warrantless blood test, or if you refused a blood test but submitted to a breath test, you should speak with a Michigan criminal defense lawyer about your options. Contact the law office of Paul J. Tafelski today for more information.

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