DUI cases and exceptions to the warrant requirement

In DUI cases, obtaining consent from defendants to take blood or breath tests is an important duty of police officers. A balance must be struck between the physical intrusion of blood testing and the dissipation of alcohol in the blood. This month, two cases, People v. Meza, 2018 DJDAR 4761 (May 18, 2018), and People v. Vannessse, 2018 DJDAR 4582 (May 16, 2018), discuss informing DUI defendants of the right to refuse blood testing and the consequences of a refusal.

Under the Fourth Amendment to the U.S. Constitution, warrantless searches are per se unreasonable unless the search comes within the recognized exception to the warrant requirement. A blood draw is a search. One exception to the warrant requirement is exigent circumstances. In Schmerber v. California, 384 U.S. 757 (1966), the court approved a warrantless blood draw taken at a hospital from an injured defendant who refused to consent based on the threatened destruction of evidence -- i.e., the dissipation of the alcohol from the blood.

Another exception to the warrant requirement is inevitable discovery. Illegally seized evidence may be used if it would have been obtained by police via lawful means anyways. The prosecution must show that there was a reasonability strong probably that the police would have discovered the tainted evidence. In re Rudy F., 117 Cal. App. 4th 1124 (2004).

Finally, victims' rights govern the admission of relevant evidence. The California Constitution requires the admission in criminal cases of all relevant proffered evidence. See Calif. Const. Section 28(f)(2) (Truth in Evidence). Unless the exclusion is allowed or required by an existing statutory rule of evidence related to privilege or hearsay or Evidence Code Sections 352, 782 or 113, or by new laws passed by two-thirds of each house of the California Legislature.

In People v. Meza, the defendant, Meza, was driving and lost control. The passenger was injured. Meza smelled of alcohol and had watery, bloodshot eyes. These symptoms could be due to a head injury or alcohol consumption. Due to his injuries, Meza did not perform field sobriety tests. The officer advised Meza that because she had arrested him for DUI, he was subject to a blood draw, and Meza said "OK." He had his blood drawn, twice. The first draw was by the hospital and showed his blood alcohol level was 0.148 percent. A half hour later, blood was drawn by a police phlebotomist showing a blood alcohol level of 0.11 percent. It is this latter blood draw that is at issue in Meza.

The 1st District Court of Appeal found the police blood draw was a violation of Meza's Fourth Amendment rights. The Court of Appeal said the trial court was too quick to find exigent circumstances, especially in light of Missouri v. McNeely, 596 U.S. 141 (2013). To begin, the officer had limited information on whether Meza was under the influence. His symptoms could have been that of a head injury. In Schmerber, there was only one police officer. In Meza, there were four officers who could have helped obtain a warrant. Further, it is easier today than it was in 2013 to obtain warrants through faxes or other electronic means. But the officers made no attempt to try to get a warrant because they thought Meza's acquiesces were consent. The court believe the officers could have obtained a warrant. If they had tried and failed, then the court's assessment of the totality of the circumstances would have been different.

In McNeely, the mere dissipation of alcohol from the blood did not create exigent circumstances. The government in Meza needed to prove that the police could not have gotten a warrant.

However, even though the Meza court found that the police erred, it held that the error was harmless. Both the alcohol level from the hospital's draw and from the phlebotomist's draw were well above the legal limit. No rational jury could have doubted that Meza's blood alcohol level was less than 0.08 percent. The failure to properly advise Meza or to try to obtain a warrant was of no consequence at these levels.

The People v. Vannesse decision stands in stark contrast to Meza. The police were called to a collision. There was no evidence of the odor of alcohol on Vannesse's breath. The officer was a drug recognition expert and believed that Vannesse was under the influence of a depressant (some drugs or alcohol). The officer read Vannesse a verbatim advisement for a blood draw so the officer could demonstrate exactly what he said. Vannesse was not advised of his right to choose a blood or breath test. Vannesse verbally agreed to a blood test and signed a consent form. The form he signed informed Vannesse of the right to refuse. After the blood draw, Vannesse lost consciousness, but it was unclear why. There was no evidence that he was treated at the hospital for injuries.

The 2nd District Court of Appeal found that Vannesse voluntarily gave both verbal and written consent to the blood draw. First, the failure of the officer to advise Vannesse of the right to take either the breath or blood test was of no constitutional significance. The court stated that failure to strictly follow the implied consent law did not violate Vannesse's constitutional rights. Second, the blood test would have been admissible under the inevitable discovery exception. Under Vehicle Code Section 23612(a), even if Vannesse had chosen the breath test, the officer still could have required him to submit to a blood test if there was reasonable cause to believe that Vannesse was under the influence of drugs. Third, the evidence would be admissible under Section 28(f)(2) of the state constitution. The victims' rights constitutional provision dictated that all relevant evidence not prohibited by federal principles is admissible. Vannesse's diminished capacity defense was rejected since it was not raised in the trial court.

Vannesse demonstrates precise documenting by the officer made it more likely that the blood draw would be found consensual. The defendant was properly warned by obtaining verbal and written consent, and reading the defendant's right verbatim. In Meza the police officer had been trained in obtaining warrants and McNeely, but the officer was much less precise in obtaining consent. Meza indicates that if the police do not advise defendants of their right to take or refuse the blood test, there is a requirement that the police try to obtain a warrant. Acquiesce to authority is not enough. The less information the police have as to the defendant's sobriety -- i.e., lack of field sobriety tests and preliminary screening device results -- the more likely the police will be required to at least try to obtain a warrant.

With ambiguously obtained consent and/or a lack of information on the defendant's sobriety, modern technology like cellphones, scanners, email, text messaging and the like put more impetus on the police to obtain a warrant. With lightening quick communication, the exigent circumstances excuse for not obtaining a warrant in a DUI case holds less weight. Eventually, the police may even utilize digital assistants. The need for search warrants will of course tax on-call judges.

At motions to suppress hearings, the defendant's relevant conditions, like slurring, odor, tongue color, red/watery eyes, pupil dilation, eyelid flutter, unsteadiness, confusion, nystagmus/HGN, injuries, and medical treatment need to be explored. When consent is imprecisely obtained, the parties need to outline the number of officers involved and why one was not assigned to request a search warrant. Whether the police read the defendant his rights verbatim is a factor in voluntariness. Whether the police obtain verbal and written consent is a factor as well.

Due to public safety issues and personal rights (e.g., invasive blood testing), DUI cases are a major area of contention. With the passage of recreation marijuana laws, it is unclear how the court will respond to drug DUIs. Blood tests will be required since breath tests will not detect drugs. But there are no per se limits for drug concentrations. Depending on if they are smoked, injected or eaten, drugs like marijuana dissipate very quickly in blood, but not in the brain where impairment occurs. Heavy users of marijuana (e.g. medicinal use) may have elevated blood levels, but not be impaired. The exigent circumstances exception would be more important for drug DUI cases and blood may have to be taken on the street immediately after the stop. The prosecution will have focus on the suspect's bad driving, drug recognition experts, and videotaped field sobriety tests.

The opinions here are solely those of the author and not of any other entity.