DUI – When a Warrantless Forced Blood Draw is Illegal
At around 11:30 p.m. on March 25, 2018, San Diego County Sheriff’s Department officers came upon the scene of a fatal car accident in Escondido. One vehicle lay upside down on El Norte Parkway. Another car rested in the front yard of a house nearby.
Francisco Andres Alvarez spoke to Officer Guy Yost at the scene. Mr. Alvarez admitted driving the car now upside down. According to Yost, Alvarez seemed uninjured, but shaken by the collision. Officer Yost did not detect any overt signs or symptoms that Mr. Alvarez drove while under the influence of alcohol or drugs.
Nonetheless, Officer Yost administered the Horizontal Gaze Nystagmus (HGN) test on Mr. Alvarez, but noticed “just a faint jerking in [Alvarez’s] eyes at the extremes.”
Emergency medical personnel arrived and then transported Mr. Alvarez and the sole surviving passenger of the crash, a 15-year-old, Jose M., to Scripps La Jolla Medical emergency room.
After completing his work at the crash site at about 12:15 a.m., Officer Yost went to Scripps to speak with Mr. Alvarez and Jose M. Officer Yost arrived there about 12:45 a.m. Officer Yost then smelled the odor of alcohol emanating from Mr. Alvarez and Mr. Alvarez admitted to drinking a beer about 12 hours earlier in the day.
Officer Yost then asked Mr. Alvarez to submit to a preliminary alcohol screening (PAS) device, but Mr. Alvarez could not, or would not, provide a sufficient breath sample. Office Yost then performed a manual trap method and measured Mr. Alvarez’s BAC at 0.037%.
Officer Yost then informed Mr. Alvarez that he wanted to get a blood sample from him. At this point, Mr. Alvarez lay in a hospital bed and then closed his eyes, not responding to Officer Yost. Officer Yost could not tell if Mr. Alvarez was asleep, unconscious or just ignoring him.
Officer Yost then radioed for a forensic blood draw. The dispatcher informed Officer Yost that the forensic phlebologist’s estimated time of arrival would be 30 minutes later.
Almost two and a half hours after the car accident, a phlebologist took Alvarez’s blood without a warrant. The blood test revealed a 0.05% BAC level with the presence of THC.
Mr. Alvarez was then charged with two alcohol-related vehicular manslaughter counts under Penal Code § 191.5(a) and a reckless driving charge.
Mr. Alvarez then moved to suppress the blood test results pursuant to Penal Code § 1538.5(a)(1) based on the search being without a warrant and being unreasonable. The People could find no exception allowing Officer Yost to obtain a blood sample without first securing a warrant and so they conceded the motion.
The prosecution then filed an amended complaint alleging non-alcohol related vehicular manslaughter under Penal Code § 192(c)(1) and a reckless driving charge.
The case then proceeded toward trial, but in the interim, the U.S. Supreme Court delivered its opinion in Mitchell v. Wisconsin (2019) 588 U.S. ___, 139 S. Ct. 2525, wherein the Court held that when a “driver’s unconsciousness or stupor requires him to be taken to a hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, . . . and therefore cannot be given a breath test . . . the exigent-circumstances rule almost always permits a blood test without a warrant . . . without offending the Fourth Amendment.” Id., at 2539, citing to Schmerber v. California (1966) 384 U.S. 757 (allowing a warrantless blood draw under exigent circumstances), Missouri v. McNeely (2013) 569 U.S. 141 (totality of the circumstances must be evaluated for exigency).
Citing Mitchell, the San Diego County District Attorney’s Office then moved for the trial court to reconsider Alvarez’s motion to suppress. The trial court then denied Alvarez’s motion, finding exigent circumstances permitted a blood test without a warrant. Alvarez later pled guilty and appealed the ruling to the Fourth Appellate District.
The Fourth Appellate District reversed the trial court, finding that Alvarez’s unconsciousness did not motivate his transport to the hospital and he instead became unresponsive 90 minutes after the accident. Further, Officer Yost did not request an electronic warrant during the two hours before the blood test despite it taking only 45 minutes. Moreover, Officer Yost’s opinion that he had to administer the blood test before Alvarez was moved from the hospital was entirely speculative. Accordingly, there were no exigent circumstances that alleviated Officer Yost’s search warrant obligations.
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