USSC: absent other emergencies, dissipation of BAC doesn't preclude warrant

[Junkie]

http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

JUSTICE SOTOMAYOR delivered the opinion of the Court with respect
to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Pp. 4–13, 20–23.
...
When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the
search, the Fourth Amendment mandates that they do so.

Interesting decision and I wonder what changes it will lead to.

 

[Slow600rr]

Our DA simply said unless you can articulate your exigent circumstance, we can no longer force blood... Many departments around where I'm at have stopped forcing anyway. If you refuse to provide a sample, you will lose your license for a year and be charged with 23152(a) CVC.

 

[bojangle]

IMO this is a very poor decision by SCOTUS. The nature of the DUI investigation and the natural process the body metabolizes alcohol IS the exigency in ALL DUI investigations. There is never time for a search warrant. . Whether or not there was a collision or someone was injured/in the hospital does not change the way the suspect's body is going to metabolize alcohol.

I am wondering if this case law will also carry over under the influence of controlled substance investigations as well. The existing case law (prior to this decision) has worked well for many decades. The SCOTUS just hampered law enforcement's ability to successfully keep repeat DUI drivers off the streets.

Makes you wonder if some of the supporting justices have substance abuse problems themselves.

Score one for the irresponsible drunk drivers I guess! arty

 

[monkeythumpa]

Are they saying that during business hours you have to get a warrant, nights and weekends blood can be drawn without?

 

[Shaggy]

Are they saying that during business hours you have to get a warrant, nights and weekends blood can be drawn without?

No forced blood for misdemeanor DUIs at all.

Stupid. Automatic license suspensions are no threat to those with already suspended licenses, or unlicensed drivers. Those two combined make up probably 60% of DUI drivers in my experience.

 

[silversvs]

Um no. Easily obtain a search warrant and obtain the blood.

Anyone who thinks they can now refuse a test and will get away from a DUI charge is mistaken. We will get a search warrant for the blood, get a sample, and notify the DMV they refused. So they get a DUI and a one year license suspension.

 

[bojangle]

Um no. Easily obtain a search warrant and obtain the blood.

Anyone who thinks they can now refuse a test and will get away from a DUI charge is mistaken. We will get a search warrant for the blood, get a sample, and notify the DMV they refused. So they get a DUI and a one year license suspension.

Does your agency/county have or are they developing some sort procedures to fast track this process? A telephonic warrant that gets signed at a later time?

In our county, the traditional method of writing the warrant and PC Statement, finding an available judge to get it reviewed and signed first can take hours. Not to mention that some counties require warrants to be reviewed or even entirely written by a deputy DA prior to going before a judge. So we are supposed to book them in jail, write a warrant, get it signed, and return several hours later hoping they haven't been OR'd?

Many agencies don't have staffing to keep the subject in a holding cell to wait for a warrant prior to booking. In many smaller counties, the availability of the limited judges is tough, especially during the day when they might be on the bench and of immediately available for an in person or telephonic review of a search warrant. On top of that, the majority of officers out there have never even written a search warrant. Not that they can't learn......

The point is that not all counties and not all agencies have the same available resources. The locistics of requiring a search warrant in an investigation that is time sensitive is unreasonable, all the while the suspect's body is naturally destroying evidence (exigency). This is not to mention the additional burdens of having night shift officers, who make the majority of DUI arrests, now having to do numerous search warrant returns with judges and getting signatures from judges, and filing with the court, all during day time business hours. So I certainly would not call the process of requiring a search warrant for forced blood draws easy or reasonable for the agency.

 

[RolnCode3]

On top of that, the majority of officers out there have never even written a search warrant. Not that they can't learn......

POST Learning Portal has an entire interactive class on it. And there's even a Search Warrant Writing Tool that can be downloaded and installed. Has each County's template. Though I've never written a warrant either!

ETA-Over on Calguns, someone posted they got a DUI blood draw warrant denied last night because it was a misdemeanor. Looking at PC 1524, this is the closest I see to justifying a DUI forced blood draw warrant - and it only applies to felonies:

(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.

 

[eddiet204]

The on call judge is going to be earning their $

I also foresee the number of DUI arrests decreasing.

 

[LongGoneJohn]

My county does not have an on call judge for warrants. No joke, the fastest warrant you're getting in this county will take a minimum of 3-5 hours if it's during business hours, a few days if not.

I'd say, in that case, you can still draw blood without their consent.

 

[bojangle]

The on call judge is going to be earning their $

I also foresee the number of DUI arrests decreasing.

Yup, that's human nature.

I've written a number of search warrants. Most were as a detective. A couple on patrol. Our agency policy is that we don't even force blood on misdemeanor cases.

I see the real problem as this: I can't tell how many times people have told me they did not want to submit to a chemical test, or even asked if I had a warrant, for DUI arrests. My response is that I tell them I don't need a warrant and that they don't have the right to refuse. I will even sometimes ask them if they are going to fight me when I go to have their blood taken. Often times I can convince them person to cooperate and submit to a blood draw without using force or restraints.

This new case law, from the highest court in the land, is now telling us that we need a warrant to draw blood, absent consent, and absent an exigency. I'm a little confused at what would constitute an exigency when they are saying that the very nature of the body metabolizing alcohol no longer is considered one. I forsee defense attorneys advising people to never consent to a chemical test. Once the person refuses and tells me to go get a warrant, I don't think I would be justified in "convincing them to comply". I would need to get a warrant or get no sample.

This is all around bad news for the whole country. SCOTUS decisions are almost never reversed, right? It would take decades of failed policy, a turn over in many justices, and a similar cases revisited to ever reverse a decision.

 

[bojangle]

My county does not have an on call judge for warrants. No joke, the fastest warrant you're getting in this county will take a minimum of 3-5 hours if it's during business hours, a few days if not.

I'd say, in that case, you can still draw blood without their consent.

Not without a special exigency and I doubt that unavailability of a judge would qualify. :|

I've heard, from an officer, that San Mateo County policies require deputy DA's to write any and all search warrants for law enforcement. I wonder what they're going to do with this new case law at 3 am.

Let's not forget, even though SCOTUS might have, that the majority of DUI arrests by far occur between 1 and 3 am. Like I said, score one for irresponsible drunk drivers! arty. Their rights outweigh law enforcements abilities to keep society safe.

I wonder what the rationale for such a decision is. Do they honestly think there was a history of officers forcing blood draw without probable cause? Because that's what it comes down to. A judge is signing a warrant because he believes there is probable cause to search.

 

[silversvs]

Does your agency/county have or are they developing some sort procedures to fast track this process? A telephonic warrant that gets signed at a later time?
.

Alameda County has already produced a affidavit that looks really good and will cover what we need.

1524 PC is a permissive code and a judge can sign a search warrant for what they see fit. They are not limited to felonies.

I'm writing our procedure now.

It remains to be seen how smooth things go to get one, how timely it can happen, and how receptive the judges will be.

Check back on this thread in a month or so and we will see where things land.

 

[Shaggy]

Last night in briefing, our Sgt mentioned that judges are already turning down S/Ws for misdo DUI cases.

 

[eddiet204]

Last night in briefing, our Sgt mentioned that judges are already turning down S/Ws for misdo DUI cases.

I would document the judge's name if he/she declined my search warrant. When the deuce ends up injuring or killing someone, its on them.

 

[RolnCode3]

I bet the legislature is going to have to pass emergency legislation, modifying 1524 to include misdo DUI.

Last night in briefing, our Sgt mentioned that judges are already turning down S/Ws for misdo DUI cases.

Does anyone know specifically why they were turned down? Had they done something differently would they have gotten it, or is it beyond the officer's control?

 

[bojangle]

Does anyone have the on call numbers for the SCOTUS Justices? Maybe the whole nation can start calling them for DUI warrants.

Then see how fast they reverse their decision.

 

[Archimedes]

The on call judge is going to be earning their $

I also foresee the number of DUI arrests decreasing.

And more people dying on our roads. Chalk another one up for the liberal justices.

 

[Shaggy]

Does anyone know specifically why they were turned down? Had they done something differently would they have gotten it, or is it beyond the officer's control?

No clue on any details. It wasn't our agency.

If they are claiming the exigency of fleeting BAC isn't enough to force blood, I can't think of a scenario where it's still a misdo deuce and there can be enough exigency to force blood.

 

[bojangle]

No clue on any details. It wasn't our agency.

If they are claiming the exigency of fleeting BAC isn't enough to force blood, I can't think of a scenario where it's still a misdo deuce and there can be enough exigency to force blood.

I'm trying to understand what other exigency there would be. I'm having a hard time understanding how an injury collision would change the exigency that already exists with naturally metabolizing BAC. If that is no long constitutional then why would any other circumstances make it suddenly an exigency?