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San Francisco DUI Lawyer: Case Law - Implied Consent Regarding Hospital Patient-Driver Cases

 Posted on July 06, 2012 in DUI

Not Triggered:

State of Ohio v. Rawnsley WL 5319863 (Ohio App. 2 Dist. 2011)

A drunk driving suspect was taken directly to a hospital by police instead of jail, and the officer testified the suspect was not under arrest when the implied consent admonition was read and a blood sample was drawn. Held: The blood test evidence was excluded on the basis of invalid consent and no exigent circumstance for not seeking warrant.

Other courts considering this issue have predominantly found a “de facto" arrest or exigent circumstance (alcohol burn off) justifying the warrantless taking of blood ( see, e.g., Buford v. State of Georgia , - S.E.2d - -, 2011 WL 5248199 (Ga.App.).

Not : The Rawnsley case is valuable on two points. First, the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so. Secondly, exigent circumstances do not automatically exist merely because blood alcohol dissipates over time (if there is time to seek a warrant and get a blood draw within three hours of the driving then there is no exigent circumstance).


Buford v. State of Georgia , - S.E.2d - -, 2011 WL 5248199 (Ga.App.)

Defendant was secured to a board in a hospital room with tubes attached to his body. A reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. Thus, it was reasonable for the trial court to conclude that he was under arrest when blood was drawn from him under the implied consent law.

Note : DUI suspects are frequently taken directly to a hospital by paramedics and later confronted in that setting by an officer demanding a blood or breath sample. As in this case, the question arises as to whether a lawful arrest has taken place which is a condition precedent to most implied consent statutes. Other courts have found there to be a de facto arrest even though the formality of an arrest has not occurred.

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