In a DUI, Is a Blood Test Involuntary If No Admonition?
In a Nutshell: A blood test is not involuntary and thus an illegal search and seizure if the police officer fails to recite the required admonition in full prior to administering the test, especially as in the case summarized below when the suspect did not resist the test and was cooperative throughout.
Officer Wilson approached the truck, finding its driver, Elio Gutierrez, asleep in the driver’s seat. Wilson woke up Gutierrez and noticed he emitted the odor of alcohol, had slurred speech and watery eyes. Gutierrez admitted to drinking several beers.
A Spanish-speaking interpreter then came to the scene and helped Wilson administer field sobriety tests. Wilson then administered a Preliminary Alcohol Screening (PAS) test, which Gutierrez allegedly failed (he had a blood alcohol concentration (BAC) above 0.08%). Wilson then arrested Gutierrez. With the help of an interpreter, Wilson then advised Gutierrez that the law required him to submit to a blood or breath test. Wilson then drove Gutierrez to jail, where Gutierrez chose the blood test.
A phlebologist then came to the station to draw Gutierrez’s blood, Gutierrez did not resist. No warrant was obtained to draw the blood.
Moreover, neither Wilson (through the interpreter) nor the phlebologist ever warned Gutierrez of the consequences of refusing both tests under California’s implied consent laws.
After the results were obtained (which are irrelevant for purposes of this article, but suffice it to say they were 0.08% or higher), Gutierrez was then charged with violating Vehicle Code §§ 23152(a) and 23152(b).
The judge distilled down the facts of the case this: “what he said to Mr. Gutierrez was the functional equivalent of, ‘We’re either going to have your breath or we’re going to have your blood. Take your choice.’” Citing to Missouri v McNeely (2013) 569 U.S. 141, the judge stated that a warrantless blood draw was justified in only very narrow circumstances, which did not exist in Gutierrez’s case, so he granted Gutierrez’s motion.
The First Appellate District ruled (and this would not apply to Los Angeles or Orange County) that if a DUI suspect freely and voluntarily chooses a blood test over a breath test, then the arresting officer does not need a warrant to have the suspect’s blood drawn.
- If Police Only Offer Blood Test in a DUI, Is Consent Valid?
- Warrantless Blood Draw Allowed in DUI Case, without Driver’s Consent – Does This Violate McNeely v. Missouri? Appeals Court Says No
- U.S. Supreme Court Rules Police May Not Draw Blood without a Warrant When Suspect Refuses Breath or Blood Test