Car Accident Attorney Ben Schwartz answers a viewer who wants to know, “Why don’t the police drug test everybody after a car accident?” The answer is the Fourth Amendment to the United States Constitution. The Fourth Amendment gives all American citizens the right to be free from unreasonable searches and seizures.

Hi, I’m Attorney Ben Schwartz,

Today we are going to talk about why don’t the police drug test everybody after a car accident? I have the same question, or the same topic, come up over-and-over in auto accident cases that I’m handling. This topic has come up twice this week. As I’m recording the video, it’s Friday afternoon, I just had this conversation this morning with a client and I just had this conversation the other evening in consultation with a client in a different case. It comes to me that my client has been injured or killed in a car accident case, and the at-fault driver was not cited for DUI. But my client or the family believes that the at-fault driver should have been drug tested because they wouldn’t have pulled out in front of my client, or they wouldn’t have rear-ended or created a head-on collision with my client… unless they were on drugs, or unless they had something going on; they were intoxicated.

So, on two separate occasions this week, and on numerous occasions in the past, people have asked me why don’t the cops just drug test everybody after the car accident and make sure nobody was drunk driving? The answer is the Fourth Amendment to the United States Constitution. The Fourth Amendment gives all American citizens the right to be free from unreasonable searches and seizures. That means that in order to drug test you after you’ve been in a car accident, the police have to have a warrant. They have to have probable cause to believe that you’re driving while intoxicated. They can’t just automatically drug test you, they have to have a basis. They have to have a reason to believe that you might be driving impaired or driving intoxicated.

Let’s say you watch Cops and you see the police will pull somebody over and they suspect that individual might be driving under the influence, they don’t just immediately take them back to the station and do a blood draw to see what their alcohol level is because that would be unconstitutional. That would violate that criminal defendant’s Fourth Amendment right against unreasonable search and seizure. What the police do is, ask that person to consent to some field sobriety test. They might have them do the one-legged stand, the walk and turn test, or count backward from one number to another. They might do what is called the horizontal gaze nystagmus (hgn) test, where they ask the person to hold their head still and follow the tip of a pen with their eyes. That way they can track the eye movement, is it smooth or jittery?

In doing this the police officer gets the opportunity to talk to the person, smell to see if they smell like alcohol, see if their eyes are glassy, see if they slur their speech when they’re talking. By doing all of these things the police officer is developing probable cause to take the person back to the police station and do a blood draw to see what their blood alcohol content is or whether they have drugs in the system. They may do an intoxilyzer or other breath tests to determine if they got a blood alcohol content using the breath test. The police don’t automatically do it. The police have to develop probable cause. You have to have probable cause to draw blood. You have to have probable cause to take someone back to the police station and do a breath test. It is not legal to just automatically test everybody who was involved in the accident.

I wanted to do a video on this topic because it seems to me that this is a question that comes up very frequently and it would be good to let people know. If people in my office are asking this question all the time, maybe it is a question the people out on the street are having in their own minds. I think that it’s good to have a topic like this for you. You’re watching this video, you’ve watched the video this far, it’s good to have something new to think about, something new to learn about. These are your rights.

If you’re watching this and you’re a US citizen, these are your rights that I’m talking about. This is something that’s important, that is given to you under the United States Constitution. It is not something that people in other countries have, so that’s my two cents. I’m Attorney Ben Schwartz, I hope you found the video interesting and informative. I hope you learned something today. If you have questions for me about personal injury law, criminal law, litigation, anything under the law, and you would like me to do a video on the topic, send me an e-mail below. If you can leave a comment on this video, I’ll get the comment. If it’s something good, I can do a video on it for you. Thanks for watching!