Chemical tests in Missouri must be performed in accordance with Missouri Department of Health Regulations 19 CSR 25-30.080.

Blood-Drawing Statute:

There are both Missouri statutes and Missouri Department of Health regulations regarding blood draws in Missouri DWI cases. Missouri Department of Health Regulation 19 CSR 25-30.070(1) requires that “blood samples shall be taken in accordance with the provisions of sections 577.029”.

RSMo. 577.029 provides that:

“A licenses physician, registered nurse, or trained medical technician at the place of his employment, acting at the request and direction of the law enforcement officer, shall withdraw blood for the purposes of determining the alcohol content of the blood, unless such medical personnel, in his good faith medical judgment, believes such procedure would endanger the life or health of the person in custody. Blood may be withdrawn only by such medical personnel, but such restriction shall not apply to the taking of a breath test, a saliva specimen, or a urine specimen. In withdrawing blood for the purposes of determining the content thereof, only a previously unused and sterile needle and sterile vessel shall be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices.

A nonalcoholic antiseptic shall be used for cleansing the skin prior to venapuncture. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him.” Id.

The State has the burden of proving absolute and literal compliance with the provisions of RSMo. 577.029 before a blood test result may be admitted into evidence. State v. Setter, 763 S.W.2d 228, 230 (Mo. App. 1988). Furthermore, “(r)ules of a state administrative agency which have been duly promulgated pursuant to proper delegated authority have the full force and effect of law.” Woodall v. Dir. of Revenue, 795 S.W.2d 419 (Mo. Ct. App. 1980). “Missouri courts have previously determined that the state must demonstrate absolute and literal compliance with statutory provisions contained in Chapter 577 regulating the manner in which blood alcohol tests are administered prerequisite to introducing the test results into evidence. See Setter, supra. These statutory enactments serve as “a substitute for the common law foundation for the introduction of evidence of analysis for blood alcohol, and are mandatory. State v. Peters, 729 S.W.2d 243, 245 (Mo. App. 1987). Similarly, where the Missouri Department of Health has enacted regulations concerning the proper methods of conducting blood alcohol tests as authorized by Chapter 577, including urine analysis, the State must demonstrate absolute and literal compliance with these regulations prerequisite to introducing the test results into evidence.” State v. Regalado, 806 S.W.2d 86, 88 (Mo. App. 1991).

Seizure of Blood—Warrant v. No Warrant

As discussed elsewhere in this site, when an officer requests that you submit to a chemical test once he has placed you under arrest for suspicion of DWI in Missouri, you have a statutory right to refuse to take any chemical test of your blood, breath, or urine under § 577.041, RSMo.

This statute specifically provides that once you refuse such a chemical test, “then none shall be given.” The refusal of the chemical test can be used against the driver as an inference of intoxication in the criminal case, and the driver can have his or her driver’s license suspended or revoked for at least one year for the refusal. Hinnah v. Director of Revenue, 77 S.W.3d 616 (Mo. banc 2002).

Accordingly, blood cannot be drawn under this statute without a warrant. However, this does not mean that once a driver refuses a chemical test, that the officer cannot go get a warrant from a judge for a forcible sample of the driver’s blood. 

In other words, the Missouri chemical test refusal statute, § 577.041, only limits “an officer’s authority to obtain a sample after a refusal, not a judge’s authority to issue a warrant to obtain evidence.” State v. Smith, 134 S.W.3d 35 (Mo. App. E.D. 2003).

There is also the situation of a driver who is unconscious or incapacitated from an Missouri DUI / DWI case involving an accident. § 577.033 provides that an officer can take a chemical test sample from someone dead, unconscious, or otherwise in a condition rendering him or her incapable of refusing, and that such a person has by statute “consented” and not “refused."

Some states, such as Arizona, have truly gone insane, and allow forced blood draws by officers on the side of the road without a warrant.

Officers in these states carry around blood draw kits with them in the trunk of their hot cars. You do not have the right to refuse the officer’s blood test. If you do refuse, they are trained in many jurisdiction to physically restrain you, tape your arm to the hood or trunk of the car, and do a forcible blood draw right on the side of the road. They do not have to even take you to a hospital for the forcible blood draw, to have qualified medical personnel give the test, and can use a needle for the blood test pulled out of the trunk of the officer’s car. Sounds delightful, doesn’t it?