A Story:

Michelle was involved in a serious accident at an Orange County intersection. Witnesses reported that Michelle caused the accident when she ran a red light. The occupant of the vehicle Michelle hit was killed. Michelle was injured and transported by ambulance to the hospital. At the hospital, a nurse administered a narcotic to Michelle to subdue her pain. The narcotic affected Michelle’s awareness.

Shortly after she arrived at the hospital, a police officer who was assigned to investigate the accident responded to Michelle’s hospital bed to question her about the accident. As the officer spoke with Michelle, he believed he smelled the odor of alcohol on her breath. The officer asks Michelle if she had been drinking prior to the accident. Michelle told the officer she had one glass of wine with dinner an hour before the accident. The officer asks Michelle to submit to a breathalyzer test, but given her compromised state, she was unable to complete the test. Due to the effect of the narcotics, the officer was unable to ascertain whether she was under the influence prior to her arrival at the hospital.

The officer asked Michelle for consent to a blood draw. Michelle closed her eyes and she seemed oblivious to the officer’s request. The officer suspected that Michelle was feigning unconsciousness.  Without obtaining a warrant for the blood draw, the officer had a phlebotomist draw Michelle’s blood at the hospital. The results showed that she was over the per se blood alcohol content (BAC). A few days later, Michelle was released from the hospital and was charged with driving under the influence and gross vehicular manslaughter (Pen. Code §191.5(a).)

Michelles DUI defense attorney filed a motion to suppress the blood evidence as it violated her Fourth Amendment protection against an unreasonable search. The United States Supreme Court held in Birchfield v. North Dakota, 579 U.S. 438 (2016) that a blood draw of a motorist suspected of driving under the influence is a search for purposes of the Fourth Amendment. A blood draw may not be lawfully conducted unless 1) the motorist gives express consent, or 2) the officer obtains a search warrant from a judge to have the blood drawn, or 3) there are exigent circumstances.

You may wonder why “express” consent is required when the vehicle code states that a motorist arrested for driving under the influence is required to submit to a chemical blood alcohol test. This is known as the “implied consent” law and refusal to submit carries serious consequences.  But Michelle wasn’t under arrest, at least not yet and the implied consent law did not apply. At the point the officer made contact with Michelle in the hospital, he was unable to form probable cause to arrest her for driving under the influence.

The officer could have easily obtained a search warrant to draw her blood. Orange County, as is the case in most counties in California, has a search warrant program that makes it simple — at any time of the day or night — for an officer to obtain such as warrant within 30 to 45 minutes. The warrant request is made electronically and there is no need for the officer to physically appear before a magistrate.

But here, the officer was concerned that Michelle would be moved for medical treatment to another location in the hospital. He was also concerned that any blood alcohol evidence would dissipate. As for this second concern, that is always a factor since BAC evidence dissipates over time and in all cases. If the officer could use this reason to establish an exigency, then it could be used in every case.

The only valid exigency that the officer cited was his concern that if he didn’t get the blood draw done immediately Michelle would be moved to another location in the hospital making her unavailable for a blood draw once he obtained a search warrant. But the officer was unable to support his concern. The officer made no attempt to obtain a search warrant prior to calling in the phlebotomist, he could not establish that the hospital staff told  him Michelle was soon to be moved, and he made no attempt with the hospital staff to arrange for a blood draw after the search warrant was issued should Michelle be moved before then.

The court found that there was no exigent circumstance to support the officer’s unlawful search. Michelle’s motion to suppress the blood evidence was granted. Without that evidence, the prosecution was unable to pursue a felony charge of gross vehicular manslaughter and was forced to reduce the charge to the must less serious charge of negligent vehicular manslaughter, a misdemeanor.

While not every driving under the influence charge will offer an opportunity for a motion to suppress evidence, when there is a clear violation of a motorist’s Constitutional rights, a motion to suppress is a powerful tool in the defense box.

Orange County DUI defense attorney, William Weinberg offers a complimentary consultation to discuss your driving under the influence matter. He may be contacted at 949-474-8008 or by emailing him at bill@williamweinberg.com.