Question: I live in Marietta and was driving home from an Atlanta Braves game with a friend in the car. I had a few beers at the game and got into an accident on Sandy Plains Road. It was really just a fender bender. Nobody was injured. The Cobb County Police came and I said I wasn't going to take any tests. The officer said he could smell alcohol. The Cobb cop then arrested me for DUI. He found an open container of gin in the car and some marijuana. My friend was pretty drunk and got obnoxious with the officer so he got arrested for obstruction.
After I refused the breath test the cop came back about 30 minutes later and said he had a warrant and was going to take my blood. He took me to a hospital and I took a blood test. I'm waiting for the results and I don't think I was drunk driving. Can a Cobb police officer really just take my blood? I am pretty mad because I hate needles.
Answer: Yes, under Georgia law a law enforcement officer may draw blood from a suspect if they secure a search warrant. Most of the time a cop will not get a search warrant to conduct a blood test in a refusal scenario. The police officer or deputy sheriff will just issue the driver a Department of Driver Services 1205 form to suspend his or her driver's license.
The genesis of the search warrant requirement comes from the United States Constitution’s Fourth Amendment. The 4th Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” It does not itself require a warrant, but it does go on to say that warrants may issue only in the presence of probable cause, among other things. To get a valid search warrant the officer would have to state that there was probable cause to believe that you were DUI. In your case that appears to include the accident, the odor of alcohol, and the open container.
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