Suspected drunk drivers forced to give blood - WMC Action News 5 - Memphis, Tennessee

(WMC-TV) - Mid-South cops are out for blood and armed with a needle along with new rules to crack down on suspected drunk drivers.

If you refuse a breath test you can now be forced to give blood. Victims of drunk drivers say it is about time, but critics say the law goes too far.

Cameras inside a Wyoming jail captured officers surround a suspected drunk driver, strap him into a chair and put a mask over his head. Then a nurse quickly draws blood for DUI-related reasons without the suspect's consent.

"You can't force somebody to give a breath test. We can force somebody to give us blood," said Michael McCusker with the Shelby County District Attorney's Office.

According to the law, if a suspected drunk driver refuses a breath test then cops can demand the driver give two vials of blood. It would be delivered to the Tennessee Bureau of Investigation for testing.

"What we hear in Shelby County, all the time, is they're done in a very civil fashion," said McCusker.

Drivers agree to implied consent whenever they get behind the wheel in Tennessee, driver's license or not. If a driver is pulled over and the officer has probable cause to believe he or she has been drinking then that driver automatically consents to a breath or blood test.

The original law is under two years old. It changed in April 2013 requiring cops to get a warrant to draw blood. Suspects are taken to the nearest police precinct where a licensed phlebotomist does the work.

If you resist then you might be strapped down.

"We have a facility here at the precinct where we are able to strap them down," said Memphis police Lt. Michael Javer. "As far as putting something over his head, if they were trying to spit on us or something like that we might try and find a mask."

MPD has conducted 292 mandatory blood draws as of 2013.

They say just the fear of a blood draw is working. DUI arrests are down more than 14 percent, and DUI crashes are down almost five percent.

Critics say the law is flawed and may violate the Fourth Amendment, which prohibits illegal search and seizure.

"One of the keys to a blood draw is if it is by consent it has to be free from any threats or coercions. So the officers can't threaten them into it," said DUI attorney Claiborne Ferguson.

Blood draws are not recorded in Tennessee.

"There's absolutely no recording of this and no matter what they do to you, you'll never be able to show anyone how they treated you," said Ferguson.

Dell Russell's husband was killed by a drunk driver in 1995.

"Why do we have to give the drunk every privilege to be found not guilty," she said. "We were high school sweethearts."

She wishes blood draws had been the law then.

"I honestly thought that if you drank, and you drove a car, and you killed somebody that you would go to jail," said Russell.

The driver who hit her husband refused a breath test, and prosecutors had no evidence to prove beyond a reasonable doubt he was drunk.

"It is a necessary law, because the average drunk driver statistically drives under the influence 80 times before they get stopped," said Russell.

And unless a legal challenge stops blood draws, then fewer drunk drivers will now be able to stop their own prosecutions. Between 2009 and 2012 forcible blood draws were legal only in cases of vehicular assault.

During no refusal weekends in Tennessee, if you are pulled over for suspected drunk driving it is a breath test or you get the needle. The rest of the time it is up to the officer to decide. In those cases the officer can arrest you for refusal to take the breath test or contact a judge on call to issue a warrant for a blood draw.

For more on implied consent laws in your state, click one of the following links:

• AR implied consent laws
• MO implied consent laws
• MS implied consent laws
• TN implied consent laws

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