Forced Blood Draws, DUIs, and Suppression of Blood Evidence under the Fourth Amendment

        DUI  Blood Draws Justified on grounds of Exigent Circumstances under the Schmerber and  McNeely decisions.

   In Schmerber v. California (1966) 384 U.S. 757, the US Supreme Court determined that a warrantless compulsory seizure of blood for the purpose of a blood-alcohol test did not offend the Fourth Amendment if the procedure:  (1) is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable belief the arrestee is intoxicated. 384 U.S. at 766-772. California decisions were in accord. (See, e.g., Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 759-760; People v. Brannon (1973) 32 Cal.App.3d 971, 974-975; People v. Ford (1992) 4 Cal.App.4th 32, 35-36). As California courts had construed the law as it existed up until 2013: “Schmerber recognizes that once the suspect is arrested, a seizure incident thereto may be properly conducted without a warrant, since the rapid dissipation of the alcohol would make the delay involved in obtaining a search warrant unnecessary and unjustifiable.” People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 765n.7.

In 2013, the Supreme Court decided Missouri v. McNeely (2013)___ U.S. ___ [133 S.Ct. 1552] (McNeely), which clarified the Schmerber jurisprudence. In McNeely, the defendant had been observed swerving across a center divider on a highway. Id. at 1556. After submitting to a series of field sobriety tests, the officers asked the defendant to submit a preliminary alcohol screening sample at the scene of the traffic stop, which was refused. Id. at 1556-1557. While en route to the police station, after the defendant indicated to the arresting officer that he would not submit to a breath test, the officer changed course and proceeded to a nearby hospital. Id. at 1557.  At the hospital, the defendant was read an admonishment regarding the Missouri implied consent law where the officer indicated that if the defendant did not submit to a chemical test, his license would be immediately suspended. Id. The defendant nonetheless refused to provide a sample. Id. Despite this refusal, the arresting officer then had the hospital lab technician draw the defendant’s blood. Id. At no time did the arresting officer seek to obtain a warrant to conduct the forcible blood draw. Id.

The US Supreme Court found that, under Schmerber, whether there is an exigency sufficient to justify a warrantless blood draw must be determined by the totality of the circumstances of a specific case. Id. at 1559. The Court in McNeely explained that, in the facts of Schmerber, the defendant in that case was involved in a traffic accident and had been injured, whereafter a forcible warrantless seizure of the defendant’s blood was taken at a hospital over the defendant’s objection. Id., citing Schmerber, supra, 384 U.S. at 758. The Court in Schmerber upheld the warrantless seizure of the blood, because that the arresting officer in that case, “‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence.'” McNeely, supra, 133 S.Ct. at 1560, citing Schmerber, supra, 384 U.S. at 770. Thus, “In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” McNeely, supra, 133 S.Ct. at 1560, citing Schmerber, supra, 384 U.S. at 772

Under the facts of the McNeely case, the Supreme Court proceeded to hold that, “the natural dissipation of alcohol in the bloodstream [in drunk-driving investigations] does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id. at 1568. The Court clearly explained that, “in those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561. In reaching its decision, the Court noted the, “advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” Id. at 1561-1562.

Unless there is a clear exigent circumstance that indicates a search warrant was unfeasible to obtain after an arrest for driving under the influence without compromising the “evidence” to be obtained in the blood sample, a warrantless seizure of  blood is unjustified and should thus be suppressed as an unreasonable search in violation of the Fourth Amendment under the Schmerber and McNeely decisions. This is so unless another exception to the warrant requirement under the Fourth Amendment applies, such as consent. Further, if even a blood draw can be justified under the exigent circumstance or consent exceptions to the warrant requirement, the police must demonstrate that the blood draw was conducted in a medically approved manner to be valid under either of these exceptions.

DUI Blood Draws and the Consent Doctrine

            In addition to, and independent of, the exigent circumstances doctrine, “It is `well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.'” People v. Woods (1999) 21 Cal.4th 668, 674, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219. The consent doctrine has also been approved by courts in the context of blood draws in drunk driving investigations, where there is actual consent to providing a blood sample for such purpose that is freely and voluntarily given. See People v. Harris (2015)__Cal.App.4th__, citing State v. Brooks (Minn. 2013) 838 N.W.2d 563, 571-572; State v. Moore (Or. 2013) 318 P.3d 1133.

In February 2015 the California Court of Appeal decision in People v. Harris held, in part, that California’s implied consent laws requiring motorists suspected of intoxicated driving to submit to a chemical test at the request of a peace officer can be considered valid, actual consent where the motorist is advised as to the informed consent law provided by Vehicle Code sections 13353 and 23612(a)(1)(D) and voluntarily submits a chemical sample. People v. Harris (2015)__Cal.App.4th__. However, citing the facts of the Schmerber and McNeely decisions, in which both defendants in those cases expressly refused to provide any blood sample to police after their arrest, (Schmerber 384 U.S. at 758-759, McNeely, supra, 133 S.Ct. at 1556-1557), the Court in Harris explained that where a motorist revokes this implied consent by refusing to submit such a sample despite being advised of the potential adverse consequences of that decision, there is no actual consent and police must either obtain a warrant or rely on another exception to the warrant requirement to justify the warrantless seizure of a suspect’s blood. See Harris, supra.

And even where actual consent is given by a suspect to have her blood drawn, the Court must further determine if such consent was freely and voluntarily given. “To be effective, consent must be voluntary.” People v. Ledesma (1987) 43 Cal.3d 171, 234. “[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer (1983)460 U.S. 491, 497.  Factors relevant to the determination of whether consent was voluntarily given include: whether the suspect in advised that consent can be refused, (People v. James (1977) 19 Cal.3d 99, 115-118), whether the defendant was in custody at the time the alleged consent was given, (People v. Siripongs (1988) 45 Cal.3d 548, 566), and the time the alleged consent obtained. See People v. McKelvy (1972 ) 23 Cal. App.3d 1027, 1034.  “The voluntariness of consent is a question of fact to be determined from the totality of circumstances. If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., `that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.’ [Citations.]” People v. Boyer (2006) 38 Cal.4th 412, 445-446.

The circumstances of under which  a party may “agree” to submit to a blood test are thus relevant to determining whether consent was given to establish that any “agreement” to such a test was freely and voluntarily granted, and it is the prosecution’s burden to prove free, voluntary consent. If this burden is not met, the warrantless seizure of an arrestee’s blood cannot be justified under the consent exception to the warrant requirement, and the evidence must be suppressed.

Warrantless blood draws as evidence are unreasonable if there is no evidence that the blood draw was performed in a medically reasonable manner as required under Schmerber.

            The Court in Schmerber held that in order for a warrantless blood draw to be reasonable under the Fourth Amendment, it must be conducted in a reasonable and medically approved manner. Schmerber, supra, 384 US at 768-772. While the court in Schmerber approved of the blood draw under the facts of that case, in which the blood draw was taken at a hospital by a physician, the Court indicated that this requirement of a warrantless blood draw is to avoid warrantless bodily intrusions that, “might be to invite an unjustified element of personal risk of infection and pain”. Id. at 771-772. In discussing this factor, the Court noted that the “overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Id. at 767. Although taking a sample of a suspected intoxicated driver’s blood without his informed consent does not violate “accepted medical practice” referenced in Schmerber, (People v. Ford, supra, 4 Cal.App.4th at 36), it must be established that the manner of drawing the blood was conducted by medically trained personnel and that the setting and circumstances of the blood draw ensured the procedure to procure the sample was not, “unsanitary, or subjected the suspect to any unusual pain or indignity.” People v. Esayian (2003) 112 Cal.App.4th 1031, 1039.

Thus, a warrantless blood draw is required to be conducted in a medically approved manner in order to be valid under the Fourth Amendment. The actual qualifications the phlebotomist, the state of the instruments used to take the sample, and the actual procedure performed to draw the arrestee’s blood are all relevant to this determination. If there is no proof that the warrantless blood draw was not conducted in a medically reasonable manner, the warrantless seizure of an arrestee’s blood is unreasonable within the meaning of the Fourth Amendment per the decision in Schmerber, supra, 384 US at 768-772, and suppression of that evidence is required.

Blood Draws, DUI Arrests, and Asserting your Rights Under the Fourth Amendment

In DUI cases, where defense at trial can be difficult if a blood evidence establishes a blood alcohol content (BAC) of over 0.08 percent, motions to suppress the blood sample can be critical to the outcome of the case, and, if granted, lead to complete dismissal of the matter altogether if handled by an experienced criminal defense and DUI attorney. There are risks, however, to refusing a blood draw or breath sample. This includes losing your driver’s license for at least one year under California’s “implied consent” law, even if it turns out that you were not in fact under the influence or driving with a BAC of over 0.08 percent. Thus, it is critical to be represented by an experienced attorney if you have been accused of any type of DUI offense.

If you or a loved one have been arrested for a DUI in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or in Napa and Yolo Counties, you deserve representation by an experienced attorney who can help you with both the complex rules governing the courtroom and the DMV. At Honeychurch & Boyd, we take pride in asserting every client’s constitutional rights to the fullest extent of the law. Contact our office today for a free consultation with one of our attorneys to determine how we can assist you achieve the best possible outcome for your DUI-related case.