Verbally refusing a Virginia DUI blood search warrant should not be a crime
Verbally refusing a Virginia blood search warrant should not amount to obstruction of justice
Verbally refusing a Virginia blood search warrant should not be sufficient to convict for obstruction of justice nor any other crime. As a Fairfax DUI lawyer, I know of two private hospitals in and near Northern Virginia where some or all nurses will not draw blood if the driving under the influence (of alcohol or drugs) suspect verbally says no to the blood draw, even if the police have already obtained a search warrant to draw the blood. As it should be, no nurse nor private entity can be compelled to act as an arm of law enforcement, whether that is to draw blood or any other function. Whether a Virginia DWI suspect’s verbal opt-out from a blood draw does or does not lead to a nurse’s declining to draw the blood should not logically amount to any crime at all.
Why should a Virginia DUI suspect’s verbally refusing a blood search warrant not amount to a crime?
The answer to the above question about verbally refusing a Virginia DUI blood search warrant calls for analyzing the commonwealth’s obstruction of justice statute and the related court case law. Virginia’s justice obstruction statute has five subsections. Only the first subsection might possibly (but should not) apply to verbal blood search warrant refusal, in that the remaining four subsections involve impeding arrest, lying, and using or threatening force. That first subsection of the commonwealth’s obstruction of justice statute provides: “If any person without just cause knowingly obstructs a … law-enforcement officer … or fails or refuses without just cause to cease such obstruction when requested to do so by such … law-enforcement officer, … he is guilty of a Class 1 misdemeanor.” Va. Code § 18.2-460(A).
Can an obstruction of justice conviction be obtained for merely not complying with a police officer’s order?
An obstruction of justice conviction should not be available merely verbally refusing a Virginia DUI blood test search warrant. When considering that the above-discussed Va. Code § 18.2-460(A) applies both to police and prosecutors — and that prosecutors are without authority to order a criminal suspect to do anything — the foregoing obstruction of justice provision reads in terms of prohibiting people from preventing police and prosecutors from discharging their duties, rather than prohibiting people from following the commands of police. Moreover, merely making a police officer’s job a bit harder does not by itself amount to obstruction of justice: “'[O]bstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person’s conduct merely renders the officer’s task more difficult’ or ‘frustrat[es] [his or her] investigation./ Thus, ‘an accused’s hiding or seeking “to escape [an] officer by merely running away [is] not such an obstruction as the law contemplates.”‘” Atkins v. Virginia, 54 Va.App. 340, 343 (2009).
What does the Supreme Court say about verbally refusing a blood search warrant?
Not wanting to help the Virginia legislature craft a statute that will make it easier for prosecutors to obtain an obstruction of justice conviction, it nevertheless is important to know that the United States Supreme Court a few years ago proclaimed: “If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.” Birchfield v. North Dakota, 136 S.Ct. 2160, 2172 (2016).
Am I safe to verbally say no to a Virginia DUI blood search warrant, or to refuse to make a fist for a blood draw?
This article is not a guarantee that a judge or jury will agree that you acted lawfully in verbally refusing or physically avoiding a Virginia DUI blood search warrant, even if you engage in the passive resistance of not making a fist at the blood drawing person’s request, to make it easier to insert the blood draw needle into your vein. Instead, this blog entry addresses defensive articles available after the fact of your alleged or actual behavior.
Are police permitted to pin me down and to use other physical force in order to effectuate a Virginia DUI blood draw search warrant?
Police arguably are permitted to use force deemed reasonable by trial and appellate judges to obtain compliance with a Virginia DUI blood draw search warrant. Regardless of your reason for not wanting a blood draw (for instance privacy, concern about the results, or fear or other dislike of needles), do not expect that you will get far in complaining about proportional police physical force used to obtain compliance with such a search warrant.
Fairfax DUI lawyer Jonathan Katz pursues essential avenues to obtaining your best possible results in Virginia court, based on experience successfully defending hundreds of DWI defendants. Find out the positive and relentless defensive difference that Jon Katz cam make in your case by scheduling a free in-person consultation at 703-383-1100.