What If You Are Too Injured For a Sobriety Test After a Crash?

Recorded February 24, 2021

If someone is in a serious accident where alcohol use is suspected, but they are unconscious or too injured for a field sobriety test, how do authorities find out whether or not they are intoxicated? Is that legal?

Attorney Ben Barry of Martin, Harding & Mazzotti, LLP is on the radio with WIZN to help explain.

Martin, Harding & Mazzotti, LLP has attorneys that are available to provide answers to your questions and to make sure your rights are protected. Contact us for more information, today!

Joe: 106.7 WIZN. And it’s Eddie Money, “Take Me Home Tonight,” and The Allman Brothers Band in “Ramblin’ Man.” Before that, Joe Vega taking you through your Wednesday Rocking Ride Home. And I’m joined now by Ben Barry from Martin Harding & Mazzotti. Hello, Ben.

Ben: Hello, Joe. How are you doing?

Joe: I am doing well. First question for you. Have you ever been on a Zoom call with a judge and accidentally left the cat filter on?

Ben: I have not. I have not.

Joe: That’s good to hear it. You should… I don’t see you as a cat, though, you should get like a pit bull one and do that.

Ben: I appreciate that. I don’t know much about filters, to begin with, or let alone how to get them on or off, which I think is… was part of that attorney’s problem with that particular filter. He was about as technologically sophisticated as I am.

Joe: Right. I was gonna say that’s exactly what would happen to me. I’d be like, “I don’t know how to turn it off.”

Ben: But I do appreciate you’re associating my likeness with a pit bull.

Joe: You’re welcome, sir. You’re welcome.

Ben: Instead of a cat.

Joe: So, no, actually, the real reason I’m calling you is, of course, yesterday, Tiger Woods was in a bad car accident. I know you deal with a lot of car accidents. And, you know, the speculation was, of course, Tiger’s got a DUI in his past, and, you know, certainly, there’s been a pattern of behavior there. And so the big speculation was, was he intoxicated at that time? And, of course, we don’t know that because they had to rush him into surgery. He’s gonna be fine, but he sounds like he’s got some extensive damage to his legs. But my question was, in that situation, how do they find out whether or not you’re intoxicated? And is that legal?

Ben: In that particular situation, you would first have to apply California law. What I would presume is that since he’s been in a car accident, where potentially police suspect that alcohol or drugs was at play, and he’s unconscious, or he’s injured and unable to be subjected to something like field sobriety tests or observation by the officers, generally, police agencies will rely on blood draw that’s taken at the hospital when the individual is admitted.

So, Tiger rolled his car over, he got hurt, he was extricated then brought to the hospital. Oftentimes, agencies within whatever state, an accident like that happens, in this case, California, they would go through whatever legal process they’re required to, to obtain a blood sample. And then that blood sample would show the presence of drugs or other intoxicants like alcohol. But certainly…

Joe: So, basically, they have their ways of finding out if you’re unconscious after the accident, they have ways, legal ways to go about finding out whether or not you’re intoxicated?

Ben: Yes. And that can be based on either indicia at the scene of the accident, or alternatively, some other formulation of a belief by the officer, and what I would say generally is they have to make an application whether it’s to the hospital or have some evidentiary showing that there’s a reason to believe that the person was intoxicated or otherwise incapacitated, and then get the blood. The state troopers aren’t just gonna walk into your hospital bed and stick a needle in your arm and draw your blood out and they’ll run…

Joe: Right. Right. Yeah, there’s a certain process that they have to go through. Okay. Well, let’s hope that’s not the case and that he was sober when it happened. All right. Thank you very much, Ben Barry, from Martin, Harding & Mazzotti. Thanks for coming on, Ben.

Ben: Thank you, Joe.

Joe: Remember that you can call Ben or any of the fine lawyers of Martin, Harding & Mazzotti at any time at 1-800-LAW-1010 or go online to 1800law1010.com. All right, Mel Allen is taking over from here. He’s got music from Queen, coming up next.

Have You Been Injured?