Questions About The DWI Blood Test: Do you have to? How long does it take to get the results?

Some of the DWI cases I handle don't involve the taking of a breath sample to check for alcohol (and/or drugs) but of blood. I guess the first question some people ask is "do I have to give my blood?"

In other words, "do I have to consent?" In an accident with injuries in New York State the Police can demand a blood sample but in many other situations it is your choice. Just like you can refuse a breath test, you can also refuse a blood test.

You have a legal right to say NO! Just like they can not invade your home, they (the government) can not invade your body without your permission. Now refusing has consequences, they will involve a civil fine, a hearing to revoke your license, and a longer period of time with NO license.

The worst part of any Refusal DWI case is the loss of complete license privileges. This may not be a big deal for city dwellers but for those that live and work in the country (around these parts it's all country) it is a real hardship. For those that need a license to drive "for" their jobs it can mean termination of employment.

Second Issue is that the Court can not suspend your license without a BAC result of .08 or more. In fact the police can not even charge you with the "Per Se" DWI (for blood or breath) without a test result. You will only be charged at the outset with Common Law DWI (VTL 1192 (3)).

Blood tests take time to process, sometimes 4 to 6 weeks. So your attorney should not allow them (the Court) to suspend your driving privileges prematurely. They need to have a certified test result to do that. Although the Judge could use a catch all suspension statute (if he thinks you are a danger to yourself or others). In all my years of practice I have only seen this happen once.

Blood testing is not perfect either. The taking of blood usually involves civilians (not the police), and they do not always follow proper protocols and procedures (which are numerous and specific). Sometimes a blood case is easier to defend than a breath case depending on the circumstances.

Well enough about blood for one blog.