H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Taking Your Blood In Colorado Criminal Cases -Involuntary Warrantless Blood Draws

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Taking Your Blood In Colorado Criminal Cases - Involuntary Warrantless Blood Draws

The question of whether law enforcement can take your blood involuntarily in an alcohol-related criminal case is a critically important case to understand.  The involuntary taking of blood from an individual by the State calls into question serious and important issues of constitutional law.

Taking involuntary blood samples involves a compelled physical intrusion beneath the subject’s skin and into his veins for use as evidence in a criminal investigation. This kind of invasion of bodily integrity implicates an individual’s most deeply held expectations of privacy.

Some Foundational Law:

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.

A warrantless search of the person is reasonable only if it falls within a recognized exception such as the exception known as “exigent”-  or emergency circumstances.

Missouri v. McNeely

In 2013 the United States Supreme Court decided Missouri v. McNeely, 133 S. Ct. 1552 (2013).  In McNeely, the United States Supreme Court found that the Fourth Amendment requires a search warrant before a forced blood draw, absent exigent circumstances.

The key question – what constitutes “exigent circumstances” – was not clearly answered by the Court.

  • Justices Sotomayor, Scalia, Ginsburg, and Kagan found exigent circumstances for an involuntary warrantless blood draw must be measured on a careful case-by-case totality of the circumstances analysis.
  • Justice Thomas dissented and believed there should be a per se rule where the dissipation of alcohol always creates an exigency in all alcohol-related cases.
  • Chief Justice Roberts joined by Justices Breyer and Alito, concurring in part, advocated for a modified per se rule that exigent circumstances will exist whenever “an officer . . . reasonably conclude[s] that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn.”
  • Justice Kennedy wrote an opinion concurring in part and dissenting in part.

McNeeley involved the simple charge of DUI – and did not implicate the more serious crimes of Vehicular Assault or Vehicular Manslaughter.

The natural metabolization (burning up) of alcohol in the bloodstream does not present the kind of per se exigency (or categorical rule) that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases – such as the average DUI – but it is implicated where the stakes are much higher – such as when a person dies in a Colorado Drunk Driving accident.

Whether a warrantless blood test of a drunk-driving suspect was reasonable had to be determined case by case based on the totality of the circumstances.


The compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. The general importance of the interest in combating drunk driving did not justify departing from the warrant requirement without showing exigent circumstances that made securing a warrant impractical in a particular case. The Court observed that because the case was argued before it on the broad proposition that drunk-driving cases presented a per se exigency, the arguments and the record did not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that could be taken into account in determining the reasonableness of acting without a warrant.

How Does This Case Impact Your DUI?

Unlawful searches are protected by the Fourth Amendment and whether and under what circumstances the police are allowed to seize your blood in a DUI related case arguing that blood alcohol dissipation is the kind of exigent circumstance that meets the standard of a seizure without a warrant, is of the highest importance.

The answer today?

Blood tests forcibly taken without a warrant continue to be excluded from DUI trials not implicating much more serious charges such as when the police have probable cause to believe that a suspect was involved in a DUI related case where a person was killed or suffered serious injury as a result of an accident.