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

I don't understand why a warrant would be denied for blood. If there's PC for the arrest, I would expect the same PC to be enough for a warrant - or am I missing something?
 
Junkie said:
I don't understand why a warrant would be denied for blood. If there's PC for the arrest, I would expect the same PC to be enough for a warrant - or am I missing something?
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Well, the circumstance does not seem to fit California law. It would seem that California law might have to be amended to fit misdemeanor DUIs. The problem is, IMO, SCOTUS "fixed" something that wasn't broken and has now created more problems than necessary.

1524. (a) A search warrant may be issued upon any of the following
grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing them
from being discovered.
(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.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(9) When the property or things to be seized include a firearm or
any other deadly weapon at the scene of, or at the premises occupied
or under the control of the person arrested in connection with, a
domestic violence incident involving a threat to human life or a
physical assault as provided in Section 18250. This section does not
affect warrantless seizures otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or
any other deadly weapon that is owned by, or in the possession of,
or in the custody or control of, a person described in subdivision
(a) of Section 8102 of the Welfare and Institutions Code.
(11) When the property or things to be seized include a firearm
that is owned by, or in the possession of, or in the custody or
control of, a person who is subject to the prohibitions regarding
firearms pursuant to Section 6389 of the Family Code, if a prohibited
firearm is possessed, owned, in the custody of, or controlled by a
person against whom a protective order has been issued pursuant to
Section 6218 of the Family Code, the person has been lawfully served
with that order, and the person has failed to relinquish the firearm
as required by law.
(12) When the information to be received from the use of a
tracking device constitutes evidence that tends to show that either a
felony, a misdemeanor violation of the Fish and Game Code, or a
misdemeanor violation of the Public Resources Code has been committed
or is being committed, tends to show that a particular person has
committed a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or
will assist in locating an individual who has committed or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code. A
tracking device search warrant issued pursuant to this paragraph
shall be executed in a manner meeting the requirements specified in
subdivision (b) of Section 1534.
 
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Don't get hung up on 1524. It's permissive, not punishing. Search warrants can be obtained for misdemeanors. Lets hope the judges see the need. If folks realize we can and will get warrants to obtain blood if they refuse we can quell any mass movement to refusing all tests.
 
Our department lost blood evidence in a DUI case years ago due to a forced blood draw. The officers had to physically restrain the arrestee and the phlebotomist drew from his arm as the guy struggled. The superior court judge said the blood draw "shocked the conscious" and threw out the blood in a 1538.5 motion.

I could see in those types of cases, the physical restraint and physical force of blood for a misdo being a 4th Amendment right violation. But, for the passive refusal subject who thinks he is just "exercising his rights" this decision is a bad one.
 
silversvs said:
Don't get hung up on 1524. It's permissive, not punishing. Search warrants can be obtained for misdemeanors. Lets hope the judges see the need. If folks realize we can and will get warrants to obtain blood if they refuse we can quell any mass movement to refusing all tests.
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Seems it would be easier to get the law amended than go through all of the appeals this will generate.

From Alameda DA POV Search Warrant:

NOTE: It’s not clear whether evidence can be suppressed in
California on grounds it was obtained pursuant to a warrant authorizing a search for evidence not specifically listed in § 1524(a). It is arguable that such evidence would be admissible if, (1) all the other requirements for a valid search warrant were met, and (2) officers had a legitimate law enforcement interest in obtaining the evidence they seized. There are two reasons for this. First, the limitations contained in § 1524(a) are based on statute—not the U.S. Constitution. And, pursuant to Proposition 8, evidence can be suppressed only on grounds it was obtained in violation of the U.S. Constitution. See People v. McKay (2002) 27 Cal.4th 601, 608 [“With the passage of Proposition 8, we are not free to exclude evidence merely because it was obtained in
violation of some state statute or state constitutional provision.”]. Second, § 1524(a) does not purport to limit or otherwise restrict searches for the things enumerated. Instead, it simply authorizes a search for such items. As the U.S. Court of Appeal observed while interpreting the comparable federal rule (Fed.R.Crim.P. 41(b)), “[R]ule 41 does not define the extent of the court’s
power to issue a search warrant. . . . Given the Fourth Amendment’s warrant requirements, and assuming no statutory prohibition, the courts must be deemed to have inherent power to issue a warrant when the requirements of that Amendment are met.” Pursuant to the Fourth Amendment, there are three requirements for a valid search warrant: (1) probable cause, (2) a
particular description of the place to be searched and the evidence to be seized, and (3) the warrant must be issued by a “neutral, disinterested” magistrate. See Dalia v. United States (1979) 441 US 238, 255.
 
bojangle said:
IMO this is a very poor decision by SCOTUS.
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bojangle said:
The problem is, IMO, SCOTUS "fixed" something that wasn't broken and has now created more problems than necessary.
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I'm not an attorney but I hope that everyone realizes the SCOTUS didn't "decide" to take away LEO's authority to execute warrantless searches, they upheld a trial court decision that was affirmed by the State Supreme Court. I'm not sure if Missouri has a liberal or conservative state supreme court but if I had to guess, I'd guess that at least compared to CA it's not liberal.


He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement didnot apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed...
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It also may not turn out to be a big issue (I assume it will make things more difficult but I also believe people will still be convicted in many cases).

We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement’s ability to recover BAC evidence...

But widespread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not “severely hamper effective law enforcement.”


The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time.

Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search.

No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed.
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my prediction is that it will take some time to sort it out but in the end our legal system will find a way to continue convicting people .
 
^^^ all I know is that because of this decision, our DA decided that agencies within the cou ty are no longer going to force blood for misdemeanor DUI arrests.
 
tgrrdr said:
I'm not an attorney but I hope that everyone realizes the SCOTUS didn't "decide" to take away LEO's authority to execute warrantless searches, they upheld a trial court decision that was affirmed by the State Supreme Court.
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SCOTUS is not obligated to review appeals. They pick and choose which cases they want to hear. They absolutely did "decide" to curb LEO authority. I'm not saying they shouldn't have taken the case, or even that I philosophically disagree with the decision. But cases only get heard because the Justices want to say something about them.
 
I don't quite understand how a judge not being available is an exigency, though. It seems to me like that's the fault of the state, and therefore not something that the state should be able to claim as a reason to not follow protocol.
 
Junkie said:
I don't quite understand how a judge not being available is an exigency, though. It seems to me like that's the fault of the state, and therefore not something that the state should be able to claim as a reason to not follow protocol.
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Yeah, I agree. They decide that we are required to get a warrant absent consent or an exigency beyond the fact that the body is metabolizing alcohol. As an officer, I try to get a warrant but a judge is not available. Oh, well then, now you don't need a warrant. Go take the blood anyways. That would not work in searching a residence. And if they're going back to the fact that the alcohol is dissipating, well then duh, that is the exigency. Shouldn't have screwed up what worked for all these years.
 
bojangle said:
IMO this is a very poor decision by SCOTUS.
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It's a very poor decision by law enforcement and the justice system to not have their act together 100% so they can do what they need to precisely when they need to do it.

If a judge isn't available when necessary, one has to ask exactly why that is.

Repeat DUI offenders don't give a fuck about the law or the police or suspended licenses or warrants or judges or the public or the Supreme Court. All they want to do it get wasted and go mobile.
 
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ALANRIDER7 said:
It's a very poor decision by law enforcement and the justice system to not have their act together 100% so they can do what they need to precisely when they need to do it.

If a judge isn't available when necessary, one has to ask exactly why that is.

Repeat DUI offenders don't give a fuck about the law or the police or warrants or judges or the public or the Supreme Court. All they want to do it get wasted and go mobile.
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I don't see how it would be practical or fiscally responsible to pay a judge to sit by a phone just so they are available if a warrant is needed. Like others have said, not all counties have on call judges. Even during business hours it can be hard to get into a judge's chambers for a warrant request.
 
Nick said:
I don't see how it would be practical or fiscally responsible to pay a judge to sit by a phone just so they are available if a warrant is needed. Like others have said, not all counties have on call judges. Even during business hours it can be hard to get into a judge's chambers for a warrant request.
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How practical and fiscally responsible is it to not be able to do a full court press on some repeat DUI piece of shit who decides to tell you guys to pound sand instead of cooperate?
 
If the money isn't there, it isn't there.

DA's Offices, Public Defender's Offices, court houses, and LE agencies are all still struggling financially. I don't see adding a specialized position like that as very likely.

Getting things done/changed in gubment agencies isn't as easy as you think.

Not to mention, DA filing cases have higher priorities for the "full court press" than DUI violations. If they're not going full court press on gang shootings, domestic violence, or residential burglaries, they are doing it for DUIs.

The only real penalty for DUI these days is hitting the defendant's pocket book. No jail, no formal probation.
 
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bojangle said:
I would assume. It would seem to apply.
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The difference is there is no administrative penalty for 11550 and no requirement to consent like in DUI with license suspensions and your agreement to submit as a condition of your driving privilege.

There is also a difference in that alcohol metabolizes MUCH faster than 11550 drugs.
 
ALANRIDER7 said:
It's a very poor decision by law enforcement and the justice system to not have their act together 100% so they can do what they need to precisely when they need to do it.

If a judge isn't available when necessary, one has to ask exactly why that is.

Repeat DUI offenders don't give a fuck about the law or the police or suspended licenses or warrants or judges or the public or the Supreme Court. All they want to do it get wasted and go mobile.
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I don't exactly understand what you are getting at. Do you realize that the new SCOTUS decision just came out this week? This was never an issue before a few days ago. I'm not sure where you're going with this "have your act together" comment. Everyone is trying to figure out how to deal with a decision that "fixed" something that was never broken to begin with and has worked well for decades.

Nick said:
The difference is there is no administrative penalty for 11550 and no requirement to consent like in DUI with license suspensions and your agreement to submit as a condition of your driving privilege.

There is also a difference in that alcohol metabolizes MUCH faster than 11550 drugs.
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But wouldn't you agree that this carries over to 11550 arrests as well? Absent consent you would need a warrant.

What about the whole search incident to arrest aspect of all of this? Is drawing blood considered too intrusive to be included in search incident to arrest?
 
bojangle said:
But wouldn't you agree that this carries over to 11550 arrests as well? Absent consent you would need a warrant.
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I agree that it would seem to also apply to 11550. My point was there is no administrative procedure in place to address refusals for 11550.

With a DUI you complete the Admim Per Se form and complete the refusal portion. This automatically suspends their DL for 1 year (if I remember correctly).

With a refusal for 11550, all we would do at my agency is document in the report that they refused, and then send it to the DA. Without evidence to determine influence, I'm 100% sure our DA won't file the case.

I hate doing urine for 11550.
  • I don't want to get it thrown at me.
  • I do think it gives a true result as to the level of influence.
  • It is too easy to tamper with because the arrestee has too much control over the evidence.
  • For female arrestees you would need a female officer to witness

/tangent
 
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