In most states, the government will use various forms of scientific testing to establish the blood-alcohol concentration (BAC) of a drunk driving/DWI suspect.  Those test may be in the form of a breath test, blood test or urine test. In those cases where a blood test has been conducted a defendant may contend that under the circumstances, the taking of blood was unreasonable because excessive force was used.

In this regard, it has been long stated that the use of unreasonable force in the execution of a search warrant or an arrest warrant is unconstitutional. In 1966, the United States Supreme Court in a case titled California v. Schmerber addressed the question whether the government could take blood from a suspect in a criminal investigation. While the court endorsed the procedure it specifically concluded that the taking of blood cannot be countenance in all circumstances, and cautioned that the government should be leery of taking blood  if the subject was fearful, and if the procedure offended religious considerations.  It also said that under no circumstances could unreasonable force be used.

In 2001, New Jersey’s Supreme Court tested that principle in a drunk driving/DWI case where defendant was terrified of needles, and where during the blood taking process, shouted and flailed to the extent that he had to be mechanically restrained.  In addition, defendant in that case was not offered to participate in a breath test. Given the circumstances, the court reversed defendant’s conviction because of the government’s excessive force.

Last month, an appellate panel affirmed the conviction of a drunk driving/DWI suspect, where the suspect’s BAC was established by an analysis of his blood. In that case, defendant argued that excessive force was used to draw his blood and that he should have had a opportunity to participate in a breath test while at the hospital where he was being treated for his injuries. On these issues, the court said that although there was a "minimal" use of force, it was not unreasonable given the circumstances. It also concluded that under the special facts of the case, the government had no responsibility to offer a breath test at the hospital.