DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Missouri v. McNeely

 Posted on November 19, 2013 in DUI

More On Warrantless Blood Draws - What Constitutes Consent?

In Missouri v. McNeely , which was discussed in our previous post, the United States Supreme Court affirmed its holding in a 1966 case called Schmerber v. California (several California Court of Appeal decisions in the 47-year interim had watered down and misinterpreted Schmerber , declaring that it authorized blood draws without a warrant anytime a person was lawfully arrested on suspicion of driving under the influence). In fact, Schmerber very clearly indicated that a warrant is required except in limited situations where there is no time to get a warrant.

Now that McNeely has overruled those California cases, warrantless blood draws in DUI cases present a bevy of potential issues for suppression of the evidence in the absence of consent.

Consent is an exception to the Fourth Amendment’s warrant requirement. California’s implied consent law (Vehicle Code section 23612) purportedly constitutes an exception where the suspect has been lawfully arrested on suspicion of driving under the influence. It reads, in pertinent part, as follows:

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

[If drug impairment is suspected, the testing is limited to blood unless no qualified person is available to draw the blood, in which case a urine sample is required.]

Where a motorist withdraws this implied consent, the police must typically get a warrant before drawing a blood sample. What happens, though, when the motorist stands mute - he or she does not say anything when the officer asks, “Will you submit to a breath or blood test?" Does it matter if he or she offers no physical resistance as a needle is inserted into his or her arm? Prosecutors will argue that the lack of verbal or physical objection constitutes consent on the basis that the statutory implied consent has not been withdrawn. However, those were essentially the circumstances in Lampman v. DMV , 28 Cal.App.3d 922 (2008), where the Court affirmed a DMV “refusal suspension" where the motorist refused to answer the officer, offered no physical resistance, and a blood sample was obtained. If such conduct constitutes a refusal for purposes of an administrative license suspension, it should be deemed a withdrawal of implied consent necessitating a warrant.