DE: Threat to take blood by force if necessary made consent invalid where it was unjustified to say so

The officer’s threat to use force to get a blood draw when the defendant hadn’t done a thing to justify that comment made the blood draw involuntary. State v. Cullen, 2016 Del. Super. LEXIS 68 (Feb. 9, 2016):

The problem with this case lies with Corporal Fiore’s description of the consent process. Corporal Fiore told Mr. Cullen that he could consent to the blood draw, but that if Mr. Cullen did not consent to the blood draw then Corporal Fiore would obtain a warrant for the blood draw from the Justice of the Peace Court. When talking about what would happen if a warrant were obtained, Corporal Fiore went on to tell Mr. Cullen that the blood would be drawn through any means necessary, including tying Mr. Cullen down and forcibly conducting the blood test. The sole issue is whether Corporal Fiore’s discussion of the warrant process constituted “use of physical punishment or other coercive police behavior.”

The Court finds that, under the circumstances here, Mr. Cullen was coerced into giving his consent to the blood draw. It is true that if Corporal Fiore had a warrant AND Mr. Cullen had physically resisted the blood test, then Corporal Fiore could use reasonable force to draw Mr. Cullen’s blood. That is not what happened in this case. There was no indication that Mr. Cullen would physically resist the blood test or act in a way that would justify reasonable force. The Court understands that Corporal Fiore uses the same description of the consent process with all persons he is seeking a blood draw; however, the Court does not understand the need to go into specifics about “any means necessary” when a person is cooperating. McCann makes it clear that it is improper to use force or threaten to use force to compel submission to a blood test in the absence of physical aggression.