Virginia's Court of Appeals asserted this week that it complied with Supreme Court case law when permitting a warrantless blood draw in a DWI case where the defendant was neither asked whether he would take the test nor refused. I disagree. Wolfe v. Virginia, ___...
Under Birchfield, refusal to submit to a blood test cannot be criminalized, and "consent" to a blood test can be challenged if the police warned the arrestee that blood test refusal risks criminal penalty(ies).
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Jon Katz Practices in the Following Courts and Beyond