Can Law Enforcement Forcibly Draw My Blood – Even If I Refuse A Blood Test?

In Montana, blood is very different than your breath when it comes to a DUI investigation. 

The blood in your body has broader privacy protections that your breath. Ironically, it is easier for law enforcement to obtain your blood than your breath in a DUI investigation. Here is why:

If stopped for a DUI you can refuse to perform a breath test. 

Sometimes, law enforcement will ask you to take a blood test, which requires your voluntarily consent to the drawing and testing of your blood. If you consent to a blood draw, they can voluntarily draw your blood.

However, if you refuse a blood draw request, law enforcement can still apply for a search warrant to forcibly draw your blood.

So, what are the rules around law enforcement obtaining a search warrant to seize your blood?

Montana Blood Testing Laws

In Montana, Statute 61-8-402(5) governs warrants related to a DUI investigation. That law allows law enforcement officers to apply for a telephonic search warrant to forcibly draw a person’s blood, even if they refuse such a request ONLY in the following situations:

  • The DUI suspect has a prior refusal of a breath test in Montana or any other state


  • The DUI suspect has a prior conviction of DUI or a similar statute in Montana or any other state. 

In short, if you have a prior refusal and/or DUI conviction in your past, law enforcement can and likely will apply to receive a search warrant to forcibly draw your blood in a current DUI investigation. 

How is blood drawn for a DUI test?

Once the warrant is obtained, you’ll immediately be taken to a local hospital where a medical tech will utilize a special law enforcement blood kit to draw two vials of blood. Even if you resist, you will be strapped down and your blood will be drawn.

Those blood vials are then sent to the Montana State Crime Lab for testing and the results will eventually be sent to the officer and the prosecutor, usually in a month or so.

What happens next? Can blood draw evidence be challenged?

The process from here gets much more complicated. Many variables, from how the hospital tech drew the blood to the procedures used, can cast doubt upon the final results obtained from blood testing.

Only the most experienced DUI defense attorneys who have extensive experience with blood testing protocols have any shot at determining whether the results obtained can be trusted. 

Navigating the complicated waters of DUI and DUI investigation should only be entrusted to an experienced attorney who focuses their practice on DUI defense. General “criminal attorneys” who take on every single type of case they can get won’t have the specific DUI training and experience needed.

Talk to a DUI lawyer today

If you want to discuss your DUI case with an experienced DUI attorney at the Judnich Law Office, please call today for a free and confidential consultation (406) 721-3354.