Legality of Blood Draw in DUI Defense in Los Angeles

February 16, 2016

DUI Blood TestDUI Blood Test is a hot area of litigation in courts throughout the country.  In Schmerber v. California, a 1966 decision by the Supreme Court, the court decided constitutional legality of a DUI test.  Here,

we explain what makes a DUI Blood Test illegal even when you agreed to the blood draw.

Here we further provide a guide to the questions to be asked (or not to ask) during a search and seizure hearing to suppress the DUI test results.

If you are arrested for a DUI, the police tried to get a blood or a breath test to see how much alcohol you have in your body.  The Legal Blood Alcohol Level is .08% BAC.  A person who is asked to provide a sample is given a choice, a DUI blood test or a DUI breath test.  If you agreed  and the results are above the legal limit, the state of California will file criminal charges against you.  In court, you can challenge blood test by using the 4th amendment arguments.  The process starts with your attorney filing a motion under California Penal Code 1538.5.  Once the motion is filed, the burden switches to the government to show that the search of your body (taking blood test) is justified.

In 1966 Schmerber court decided that the procedure of a DUI blood test is permissible because it carries little or no risk of trauma or pain.  However, in Schmerber, there was a car accident which justified urgency and permitted exception from the warrant requirement.  Also, when a blood test is taken, the DUI blood test have to be done according to the accepted medical practices.  Thus, if the DUI blood test was not done according to the accepted medical practices or if you suffered a lot of trauma and pain, your DUI case can be dismissed because it violated your rights under 4th amendment.

California further established the standard for legality of a DUI blood test according to permissible medical practices.  For example, California law permits the blood to be drawn in a jail station however, under People v. Cuevas, a 2013 decision, the DUI blood test need to be done according to the following standards:

(1) Police officer testifies that he observes DUI blood test draw.

(2) Police officer testifies that he believed the person who took the DUI blood test to be a qualified phlebotomist or a blood technician.

(3) Police officer testifies that you did not exhibit any pain or discomfort.

(4) Police officer testifies that blood draw was done in a cooperative manner

(5) Police officer testifies that needle used for DUI blood test came from a sealed package.

(6) Police officer testifies that the area of needle insertion was cleaned before the DUI blood test needle insertion.

(7) Lastly, the police officer testified that area was bandaged after the blood extraction.

If the police officer was not able to testify to these elements of the blood draw, the results of the DUI blood test can be thrown out.  More importantly, because the burden to show compliance with the 4th amendment is on the government, if the prosecutor forgets to ask the above questions, defense can simply not ask anything on cross and win the motion.

Supreme Court of US Decisions

Mitchell v. Wisconsin: This is a very important case decided in June of 2019 by the United States Supreme Court.   The court decision is split (like so many others) with 5 judges (Alito, Roberts, Kavanaugh, Breyer, Thomas) voting one way and  4 (Sotamayour, Ginsburg, Kagan, Gorsuch) voting another way.

Facts:  Police was notified that Mitchell, who appeared very drunk, drove away in a van.  A police officer found Mitchell near a lake and had him submit to a PAS test with a result of .24% BAC.  Mitchell was arrested for a DUI and taken to a police station for a DUI breath test.  However, by the time he got to the police station he became unconscious from alcohol intoxication and could not submit to a DUI breath test.  Mitchell was therefore taken to a hospital for treatment and there DUI police arresting officer asked the hospital personnel to draw blood from Mitchell.  The results of that blood test was .022 % BAC and it was used to prosecute Mitchell for a DUI.

Holding: A suspected DUI driver who is unconscious and therefore can not submit to a DUI breath test can be subjected to a DUI blood draw without a warrant except when he can demonstrate that his blood would not be taken by the hospital and there was no DUI accident for the police to deal with.

Silver Lining:  There are two.  (1) the USSC court did not give a blank rule but held that blood can be “almost always” drawn without a warrant.  (2) The USSC could have but refused to hold that implied consent is sufficient for for warrantless blood draw.  Thus it reaffirmed previous rule, in a way, confirming that actual consent is needed for a warrantless DUI blood draw (but not for DUI breath test).

Rationale: The court gives 2: (1) an unconscious DUI driver that is encountered by police is likely to be taken to an emergency room and therefore will have his blood drawn there anyways; or (2) the situations  that are encountered by DUI police officers most frequently are at a location of an accident and there the police is too busy to obtain a warrants for a blood draw when they have more important things to do, such as  to prevent other accidents or to attend to injured drivers or passengers.

Arguments to make that warrant should have been obtained: In a situation where a suspected DUI driver is unconscious for another reason or in a situation where a suspected DUI driver is not taken to an emergency room, the rational for court’s decision is not there and therefore a warrant would be required under the exception to Mitchell v. Wisconsin (the “almost always” scenario).

Argument to support a warrantless blood test of an unconscious DUI suspected driver: (1) this was the actual question posed by the Wisconsin Supreme Court and (2) Mitchell was not found at an accident site but instead was found near a lake after he was seen driving a van.  The court permitted the warrantless blood draw because Mitchel was taken to a hospital where his blood was presumably drawn anyways for purpose of diagnosis and treatment unrelated to law enforcement reasons.

Thus (2nd holding): When a suspected DUI driver was not taken to a hospital and when a suspected DUI driver was not found at an accident scene, the police need to obtain a warrant. 

Relevant Notes and Cases: Judge Alito (he wrote the opinion) notes several past USSC decision dealing with similar situations.

(1) Schmerber – permitted warrantless DUI blood draw because there was an accident in Schmerber

(2) McNeely – did not permit warrantless blood draw holding that natural dissipation of alcohol is not an exigent circumstance.

(3) Birchfield – Permitted warrantless DUI breath test but not warrantless DUI blood test in a garden variety DUI because of privacy concerns (a blood draw is much more intrusive).

(4) Here (Mitchell) – permitted warrantelss blood draw on an unconscious suspected DUI drivers only because the blood would have been drawn anyways by the hospital for treatment purpose.

Unanswered questions: if a conscious driver is taken to a hospital and refuses a blood test there, can the police force it without a warrant?  I think not based on McNeely!

Rule: I think the rule can be summarized as such “a warrantless DUI breath test is always permissible but DUI blood test is only permissible when there is a DUI accident or when a DUI suspected driver is taken to a hospital anyways (and not for a blood test purpose)”.

Los Angeles DUI attorney is here to help you win your DUI case.  Our office near Van Nuys DUI court and near Metropolitan DUI court allows us to interact with local prosecutors daily and get the best results for your Los Angels DUI case.  We are ready to answer any questions you have, just call us.  We provide quality defense at affordable price and will not refuse any reasonable payment plan.  Call us (818) 921 7744 anytime to talk to one of best Los Angeles DUI attorney directly.

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One response to “Legality of Blood Draw in DUI Defense in Los Angeles”

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