Let's review the court of appeals ruling that there were no exigent circumstances to justify a warrantless blood draw from a DUI suspect after a significant post-collision delay. California implied consent laws require all drivers to voluntarily provide a breath or blood test as part of a police officer drunk driving investigation.
In cases where there is injury or death, the police will not stop at a "refusal" and seek a search warrant to obtain the blood under court order.
It has been very common in our law firm's criminal practice to defend a case where the police obtained a drug and alcohol reading despite the suspect refusing to cooperate.
The recent case of People v. Francisco Andres Alvarez (Court of Appeals No. D080585) provides an unusual scenario in which the officer did not obtain a search warrant and sought a blood sample based on "exigency."
The Fourth District Court of Appeals found this unconstitutional, reversing the defendant's conviction after discovering an error in the trial court's denial of a motion to suppress the results of a warrantless blood draw.
Case Details
On March 25, 2018, Alvarez was involved in a traffic collision that left two other motorists dead. At the scene, Alvarez appeared shaken but uninjured.
The officer who interacted with him did not detect any objective signs of alcohol intoxication but did administer a field sobriety test, which produced ambiguous results.
The officer did not conclude who was at fault for the collision or whether Alvarez had violated traffic laws. Alvarez was transported to the hospital.
Officers followed Alvarez to the hospital to continue questioning him. They arrived approximately 75 minutes after the fatal collision. At that time, officers detected the odor of alcohol on Alvarez's person.
Alvarez admitted to having a beer earlier in the day. An officer obtained a preliminary alcohol sample (PAS) from Alvarez, which was under the legal limit but which he had reason to believe was lower than Alvarez's true blood alcohol concentration. PAS samples are inadmissible as evidence in court.
About five minutes after obtaining the PAS sample, the officer informed Alvarez that he wanted a blood sample. At this point, Alvarez stopped responding verbally and lay in the hospital bed with his eyes closed.
No one could tell whether he was asleep, unconscious, or ignoring the officer. The officer radioed for a forensic blood draw without a warrant, which was performed about two and a half hours after the fatal collision.
Alvarez did not react when the phlebotomist stuck the needle into his arm. The results indicated a .05% blood alcohol concentration as well as the presence of cocaine and THC. The government charged Alvarez with two DUI-related vehicular manslaughters.
Suppressing the Blood Results
Alvarez moved to suppress the blood results, and the government initially conceded that no exception to the Fourth Amendment's warrant requirement justified the blood draw and amended the complaint to allege non-DUI-related manslaughter and driving offenses.
After the initial success of his suppression motion, but before trial on the new charges, the United States Supreme Court handed down Mitchell v. Wisconsin, which held that "when a driver is unconscious and therefore cannot be given a breath test . . . the exigent-circumstances rule almost always permits a blood test without a warrant." (Mitchell, supra, 139 S. Ct. 2525, 2531 (plur. opn. of Alito, J.).)
In light of Mitchell, the government moved the trial court to reconsider the motion to suppress. It reversed its earlier decision, resulting in the reinstatement of the more serious DUI-related manslaughter charges, to which Alvarez ultimately pled guilty without an appellate waiver.
Officers Required to Get a Warrant
The Court of Appeals found that the officers were required to get a warrant for Alvera's blood, notwithstanding his apparent unconsciousness hours after the incident. In Mitchell, the Supreme Court wrote against the backdrop of McNeely, an earlier case in which it held that officers must get a blood-draw warrant if one is practical.
Mitchell clarified that while technological advances have made warrants quick and easy to obtain, the delay in getting them has not disappeared. Therefore, emergency scenarios created by unconscious drivers will still exist.
For that reason, exigent circumstances justifying a warrantless search exist where "(1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious. . . ." (Id. at p. 2537.)
Excessive Delay
However, the second prong was not met based on the excessive delay between the incident and the warrantless search. The Court of Appeals first noted that Alvarez's unconsciousness did not motivate the transport to the hospital.
Likewise, he was not unconscious when the officers arrived at the hospital to continue their questioning. He interacted with officers for a full 90 minutes before becoming apparently unresponsive.
Critically, the officer who ordered the blood draw testified that it took between 30 and 45 minutes to obtain a telephonic blood draw warrant, and it took the phlebotomist more than 45 minutes to arrive to take Alvarez's blood.
When asked why he did not simply obtain a warrant during this period of delay, the officer testified, "I just didn't think of a warrant at that time. . . . And I don't think I was thinking I should get a warrant or I shouldn't get a warrant. That didn't cross my mind at that time, I guess." (Court of Appeals Opinion at 16.)
Nothing in the record supported the contention that the officer ever asked for, or was refused, help from other officers in obtaining a warrant.
Exigent Circumstances
Mitchell was intended by the Supreme Court to narrow the holding of McNeely by announcing a rule that unconscious DUI suspects almost always present a situation in which exigent circumstances justify a warrantless search.
Alvarez may be one of the few post-Mitchell situations in which an unusual fact pattern - an initially conscious and lucid suspect who becomes unconscious, or seemingly unconscious, hours after the fact - requires law enforcement to obtain a search warrant before obtaining the blood of an unconscious DUI suspect.
In sum, law enforcement departments in our state will closely review these cases to train their officers on the most effective investigating techniques in drunk driving cases. Contact our law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.
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