"Informed Consent" for a blood sample

"The officer arrested me for DUI-Drugs, took me to a nurse and told me that I had to give a blood sample because I was driving a car on the road in Virginia"

Can the police do that? Yes. That is what the law says. The Virginia version of the "Implied Consent" law says that anyone who is arrested who was recently operating a motor vehicle on a highway in the Commonwealth consents to a collection of a sample of breath and/or blood by the police.

The United States Supreme Court has ruled that collection of a breath sample is perfectly fine as a condition of implied consent. However, the Justices were much more cautious in talking about a blood sample for two reasons. First, there are medical risks involved in taking a blood sample, which by definition involves breaking the skin and puncturing a blood vessel. Second, there is far more information contained in blood compared with breath, due to the presence of DNA in blood. So there has not been a clear ruling from the U.S. Supreme Court on the issue. There are suggestions that, especially for a person who is unconscious or incapacitated, that implied consent is not sufficient.

The Virginia Supreme Court has not ruled on the issue of implied consent being sufficient to collect a blood sample. However, the Virginia Supreme Court has hinted that the proper challenge could lead to striking down the implied consent for a blood sample.

If you are in a situation where you need legal assistance with this issue, please feel free to contact me for a free consultation.

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"This page is not an advertisement; it is a blog. The views and opinions expressed on this blog are solely those of attorney Robert Lorey. The purpose of these articles is to inform the public regarding various issues involving the criminal justice system and should not be construed to suggest a similar outcome in any other case. The outcome of any case depends on a myriad of factors which are well outside this blog post."

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