Warrant required for evidence

[CavemanLawyer]

This ruling, while very good in my opinion, doesn't create any black and white lines. There really aren't any "lawful" versus "unlawful" categories here. Blood draws based on exigency are not now per se "illegal" just like they were never per se "legal." A warrantless draw based on exigency is going to need to be VERY sufficiently articulated both by the LE and by the prosecutors in the suppression hearing.... because mark my words in any pending or future dwi case with a warrantless blood draw there will be a suppression hearing in every single case in every single state in this country and it will be a nightmare to prosecute. Any defense attorney who does not file the motion is committing malpractice and any DA that doesn't create a policy with LE to generally avoid warrantless draws outright is going to get the county sued. Warrantless blood draws like this simply aren't going to be done anymore, except maybe in very small rural counties where they can clearly show the impracticality of ever getting a warrant in time. The real question (problem?) will be statutes across the country that allow warrantless blood draws based on certain factors regardless of exigency. Many may be unconstitutional now but we won't fully test them for years. In the meantime you can expect 1) more "no refusal" initiatives with Judges and ADA's on call to issue blood warrants, 2) more State funding to accommodate no refusal programs, and 3) madder MADD lobbyists trying to pass legislation to get around this ruling.

 

[CdwJava]

And that's going to be the issue here - the practicality of obtaining a search warrant. Not the least of which is that it is not permitted under CA state law, currently. But, secondly, because it is wholly impractical to accomplish with the system that currently exists and a revamping of the system will likely create shortcuts and other problems that will result in almost constant litigation. I don't think that the lack of a method by which to obtain a warrant will qualify in the long run as an exigency, yet the cost and logistical system necessary to create an almost instant warrant system may be too great for many counties. And, statistically - at least in my state - these smaller, rural counties, tend to have among the highest rates of DUI. For those of us in those locales, this could be devastating.

I agree that we shall see more refusals and fewer prosecutions because anyone who KNOWS they are drunk, or who has priors, will refuse and will tend to shrug off a license suspension which - at least in CA - is an offense without teeth.

I predict a push for legislation that makes it a crime in and of itself to refuse a chemical test after an arrest, but that might be a hard sell in a liberal state like CA.

A local deputy came up with an idea for those refusals that showed initiative, but probably wouldn't fly: Charge refusals as public intoxication with the operation of a motor vehicle being the element that provides the offense must include he is a danger to himself or others. It probably wouldn't fly as you would still have to show some impairment, but I predict you will see boot-strapping ideas like that all over the place in an attempt to enforce DUI laws in the absence of any other way to do it. This could be a boon for DUI attorneys, and a sad day for public safety.

 

[betachains]

Twenty+ states already disallow warrantless blood draws for uncomplicated DUI's. Why can't California obey the constitution as well?


"A local deputy came up with an idea for those refusals that showed initiative, but probably wouldn't fly: Charge refusals as public intoxication with the operation of a motor vehicle being the element that provides the offense must include he is a danger to himself or others....."
Great, a LE officer thinking of ways to circumvent a SCOTUS ruling.

 

[CdwJava]

Twenty+ states already disallow warrantless blood draws for uncomplicated DUI's. Why can't California obey the constitution as well?

Until two days ago, we were. As such, there was no need to create an expedient system of warrants or create legislation criminalizing refusals and prosecuting cases of driving on a suspended license as some of those states already have. Money and resources DO have an impact on enforcement and prosecution whether we want to acknowledge it or not. And in my state resources and manpower are in limited supply - so much so that many agencies no longer take reports for property crimes and non-violent misdemeanors.

"A local deputy came up with an idea for those refusals that showed initiative, but probably wouldn't fly: Charge refusals as public intoxication with the operation of a motor vehicle being the element that provides the offense must include he is a danger to himself or others....."
Great, a LE officer thinking of ways to circumvent a SCOTUS ruling.

No, thinking of ways to enforce the law by charging another crime that might fit the bill. Get ready - you'll see more of those.

 

[justalayman]

dwJava;3163353]Until two days ago, we were.

actually you weren't. You just didn't know it yet because nobody questioned the practice to the point of obtaining a definite answer. That is part of what I was trying to explain earlier. It was apparently always unlawful (better term than illegal). Just like so many laws and practices, it is not discovered because nobody challenged it such that it went far enough to be decided as it was recently.

 

[betachains]

"No, thinking of ways to enforce the law by charging another crime that might fit the bill. Get ready - you'll see more of those. "


That is completely out of the purview of the police.

 

[robertreck19]

hello

Most of the cases that go to trial are refusals, and in those cases they use the officer's testimony about the driver, such as erratic driving, slurred speech, or a failed field sobriety test. If someone refuses a blood test that's it; they don't force them to get a test. But there are two sides to every legal issue: the prosecution and the defense. If the officer can't prove drunken driving then implied consent would constitute a violation of your Fourth Amendment rights against warrantless search and seizure. Essentially, the state can't punish you for not taking a blood test on suspicion of drunken driving if it can't prove you were driving drunk.

 

[tranquility]

Most of the cases that go to trial are refusals, and in those cases they use the officer's testimony about the driver, such as erratic driving, slurred speech, or a failed field sobriety test. If someone refuses a blood test that's it; they don't force them to get a test. But there are two sides to every legal issue: the prosecution and the defense. If the officer can't prove drunken driving then implied consent would constitute a violation of your Fourth Amendment rights against warrantless search and seizure. Essentially, the state can't punish you for not taking a blood test on suspicion of drunken driving if it can't prove you were driving drunk.

Sure they can. All they would need is probable cause.

As to the rest, certainly there will be a hardship to the business of per se DUI arrests. However, .08 people are not the ones killing. Sometimes? Yes. But they are not the statistical problem. If, as Carl says, the repeat offenders are ignoring the rules, that is where the enforcement issues should focus upon. Repeat offenders are not the low BAC offenders. They're the ones who are driving drunk. Drunk enough that a trained observer should be able to make a case without having to tie down the suspect and invade his body's physical integrity.

 

[FlyingRon]

As indicated in the opinion if you actually read it. They expect that you can get a magistrate at anytime by electronic means to get a proper warrant and hence there is no reason that you shouldn't be able to do so. This was the yardstick against which the timely obtaining the evidence was measured.

I can't vouch for California or Massachusetts, but in many of the states I am familiar with, there are "duty magistrates" that cover issues at night across a wider area (rotates around the different jurists). A cop facing one of these situations would need only to pick up the phone, make his statement as to why he needs the warrant, and one should be able to be issued.