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Is a warrant required for a DUI blood alcohol test?

Posted by John Campanella | Aug 21, 2017 | 0 Comments

In June of 2016, the U.S. Supreme Court handed down a ruling about warrantless blood draws and breath tests during DUI investigations cited as Birchfield v. North Dakota. The Court ruled that imposing a criminal penalty on a DUI suspect who refuses to take a blood test is unconstitutional. The Court upheld such criminal penalties for refusal of a breath test.

California DUI lawyers who are familiar with this ruling may be able to use it to have blood samples suppressed or excluded from evidence when the sample is taken without a warrant or actual consent from the accused.

All 50 states have statutes known as “implied consent” laws which deem that, by default, anyone driving has consented to testing if suspected of driving while intoxicated. If the state law also imposes a criminal penalty the law might be unconstitutional under the Birchfield decision.

In the case of breath tests, the Supreme Court says that they should be treated like any other search done incident to an arrest and so a warrant is not needed. The test is only as demanding as “blowing up a party balloon” and the sample taken gives only one bit of information about a person -- their blood alcohol level. Blood tests, on the other hand, are “significantly more intrusive” since they require the suspect's skin to be pierced and the blood sample can provide law enforcement with large amounts of information about a person.

California does impose criminal penalties for suspects who refuse testing and therefore is affected by the ruling. However, under California's Vehicle Code a driver “is deemed to have given his or her consent to chemical testing of his or her blood” if suspected of a DUI. This implied consent statute would no longer be valid in regards to a blood test and officers will now have to either get a suspect's consent to conduct a blood test or obtain a warrant. This might be particularly consequential in incidences in which an officer suspects the driver may be under the influence of drugs.

A related case, People v. Arredondo is on appeal before the Cal Supremes and could change things drastically depending on the courts ruling. This case is particularly significant because an adverse ruling has the potential to make almost every consent motion for the defense disappear. The reason for this is that one of the issues in the case is the effect of Vehicle Code section 13384. That section mandates that everyone who applies for a driver's license must consent in writing to chemical testing pursuant to Vehicle Code section 23612 (and 23136).when requested to do so by a peace officer. Thus, if the Court rules that everyone has lawfully consented to testing when they applied for a driver's license, our prospects on consent motions become problematic, if not impossible.

If you or a loved one has been charged with driving under the influence in Northern California, please do not hesitate to contact DUI attorney John A. Campanella today.

About the Author

John Campanella

I have been representing people accused of drunk driving since I began practicing in 1995. I am active member of the National College of DUI Defense, a member of California DUI Lawyers Association, I am certified by the National Highway and Traffic Association for the administration of Field Sobriety Tests. I regularly attend DUI continuing education of the Bar, have tried over 35 Jury Trials, hundreds of pretrial motions and over 1000 DMV hearings all relating to DUI cases.


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