DUI Refusal: Implied Consent, Warrants, and Blood Draw Force
At 1:20 a.m., you observe a sedan traveling 52 mph in a posted 30 mph zone on Benning Road NE. The car drifts over the lane line twice. You stop it. The driver, 34, has bloodshot, glassy eyes and slurred speech. An open beer can is in the cupholder. He says he had 'two beers' about an hour ago. You ask him to step out for field sobriety tests; he says, 'I'm not doing your circus tricks.' You arrest him for driving under the influence. At the station, he refuses the Intoxilyzer. He is not injured and is cooperative but verbally refuses. The on-call judge is 40 minutes away. The jail will not accept him without a chemical test result or a warrant. The Intoxilyzer room has a camera, and your BWC is recording.
1. May you order a blood draw without a warrant based on implied consent? Why or why not?
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No. Under Birchfield v. North Dakota, the Fourth Amendment does not permit a blood draw as a search incident to arrest, and implied-consent statutes cannot supply consent when the driver refuses. The District's implied-consent law gives administrative consequences for refusal, but it does not authorize a forcible warrantless blood draw. Missouri v. McNeely also rejects the idea that the natural dissipation of alcohol is automatically an exigency. I need a search warrant, consent, or a true exigency such as a medical emergency or destruction of evidence that I can articulate. The on-call judge being 40 minutes away is inconvenience, not exigency. I would prepare the warrant affidavit with the stop facts, driving, observations, SFST refusal, Intoxilyzer refusal, and the implied-consent admonition, and present it to the on-call judge by the available after-hours procedure. If the warrant is granted, the draw should be done by qualified medical personnel. If no warrant is available, document the refusal and let the administrative process run; do not order a warrantless draw.
2. If you obtain a warrant and the driver physically resists the draw, what force may you use?
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Once I have a valid warrant, I may use reasonable force to carry it out, but the force must be proportionate to the resistance and the medical risk. Cooperative verbal refusal is not physical resistance; I would continue to explain, keep him restrained in a chair or on a stretcher, and have medical personnel perform the draw. If he physically resists, I may use control holds and restraints to immobilize the arm, but I should not use a chokehold or any neck restraint, and I should not use force that risks serious injury. MPD policy prohibits neck restraints except in deadly-force situations, and the force used to execute a warrant must still be objectively reasonable. I would call a supervisor, preserve BWC, and document each application of force. If he is injured or complains of pain, I would get medical evaluation. The goal is the blood sample, not punishment.
3. What must your report include to support the stop, arrest, refusal, and warrant?
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The report should establish the stop and arrest separately: the posted speed, the radar or pacing method, the lane violations, the time, and the driving behavior. Then the personal observations: bloodshot eyes, slurred speech, open container, admission, and the refusal of field sobriety tests. I would quote the refusal and note that no SFSTs were performed because he refused, not because I forgot. I would document the implied-consent admonition, the Intoxilyzer refusal, the warrant application and time, the blood draw time, the collector, the kit number, and the chain of custody. I would note BWC recording and any gaps. I should avoid saying he 'passed' or 'failed' tests that were not given, and avoid conclusions about impairment without facts. The report should also note that he was cooperative but verbally refusing, so the force used, if any, is clear. Times and chain of custody are critical for the prosecution.