RESPONSES TO LIMITATIONS ON FORCIBLE BLOOD DRAW IN A MISDEMEANOR DUI
On April 17, 2013, the United States Supreme Court ruled 8 – 1, in the case of Missouri v. McNeely, that “the natural metabolization of alcohol in the bloodstream [does not present] aper se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” [See Jones & Mayer Client Alert Memo Vol. 28, No. 8, 4/18/13.]
The Court noted that the Fourth Amendment typically requires probable cause and a warrant to conduct a search that intrudes into an area where the suspect has a significant privacy interest. Intrusions into the human body, like intrusions into the home, are highly protected by the Fourth Amendment.
Warrantless intrusions into the human body will only be permissible when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” The Court concluded that “we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”
The Court stated that “(o)ur cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” [Obviously, if the person consents to the search, a warrant is not needed.]
Misdemeanor Search Warrant
Based on this decision there is no doubt that, absent exigent circumstances, a warrant is needed to forcibly draw blood from a misdemeanant DUI suspect. The problem is that California doesn’t allow for such a warrant to be issued.
As we pointed out in the Client Alert Memo, California Penal Code Section 1524 provides a list of grounds for obtaining a search warrant. Although it includes securing a search warrant when a felony is involved, misdemeanor DUI’s are not included on this list. As such, as of this date, there is no statutory authority for a court to issue a search warrant for the forcible blood draw of a misdemeanor DUI suspect.
However, the first piece of good news is that SB 717 was introduced by Senator Mark DeSaulnier and Senator Lou Correa, to amend Penal Code Section 1524, relating to search warrants. Declaring the urgency thereof, it is to take effect immediately, if passed. Both the California Police Chiefs’ Association (CPCA) and the California State Sheriffs’ Association (CSSA) are on record as being in support of SB 717.
This bill would amend Section 1524 to specifically permit the issuance of a search warrant to authorize a blood draw or sample of other bodily fluids from a person in a reasonable, medically approved, manner when the sample constitutes evidence that tends to show that the person has violated specified provisions related to driving under the influence, and the person has refused an officer’s request to submit to, or has failed to complete, ablood test,as specified in Vehicle Code section 23612.
Section 23612 is the “implied consent” section and states, in part, that a “person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Sections 23140, 23152, or 23153.”
Warrants Being Issued for Misdemeanor DUI’s
It appears that many courts, throughout the state, have concluded that, although there is no statutory authority to issue misdemeanor warrants, there is no prohibition to do so. In addition, the California Office of the Attorney General has researched the issue and concluded that, although there is no statutory authority, courts retain the power to issue a common law search warrant.
According to a 7th Circuit U.S. Court of Appeals decision, United States v. Torres, (1984) 751 F.2d 875, “(l)ike the power to prescribe or regulate procedure; to punish for contempts of court; and to issue writs in aid of the court’s jurisdiction; the power to issue a search warrant was historically, and is still today, an inherent (by which we mean simply a nonstatutory, or common law) power of a court of general jurisdiction.” Furthermore, the Court held that the “common law” power applies to both federal and state courts.
It is important to note that the legal opinion of the Attorney General focuses on whether or not evidence obtained through the use of the “common law” warrant would be admitted or suppressed.
The A.G. quotes from a bench guide written by Judge Gregory Caskey, California Search and Seizure (2013), which discusses Penal Code Section 1524 and states that “(a) compelling argument could be made [that] a warrant that is not specifically authorized by the statute does not require suppression so long as the constitutional requirements have been satisfied.”
The A.G. also cites to the United States Supreme Court case of Dalia v. United States (1979) 441 U.S. 238, which held that three things are required under the Fourth Amendment for a warrant to be valid: “The Warrant Clause of the Fourth Amendment requires only that warrants be issued by neutral, disinterested magistrates; that those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense; and that warrants must particularly describe the things to be seized, as well as the place to be searched.”
The Attorney General then references California’s successful use of “alternative search warrants in the past,” and concludes that “(i)f a nonstatutory warrant is issued and the warrant complies with the three requirements under the Fourth Amendment, evidence seized under the warrant cannot be subject to suppression.”
As stated above, judges throughout the state have, apparently, agreed that they are not prohibited from issuing such warrants and are doing so. In several counties, a one page Search Warrant and Affidavit in Support has been generated for use in these types of cases. The Orange County District Attorney has generated such a form which includes boxes to be checked by the arresting officer setting forth the “objective symptoms of driving under the influence exhibited” by the subject of the stop. The use of that form expedites the ability of the officer to secure the authorization to forcibly have the blood sample taken, assuming consent has not been given.
HOW THIS AFFECTS YOUR AGENCY
It is most important to reiterate that the opinion of the Attorney General focuses on the admissibility of evidence obtained through the use of the nonstatutory search warrant. It does not, nor is it intended to, address the issue of potential litigation or liability for the use of such a warrant.
There can be no assurance that such litigation would not arise if blood is forcibly obtained even if a judge issued a warrant. Case law recognizes that the issuance of such a warrant is not a complete defense – even though it appears as if it should be – against potential civil liability.
For example, on August 24, 2010, the United States Court of Appeals for the Ninth Circuit issued an opinion in Millender v. County of Los Angeles concerning the scope of search warrants. The Court held that a search warrant was “unconstitutionally overbroad” because it permitted the search and seizure of “all” firearms and ammunition in the suspect’s home when deputies had probable cause only for a single weapon. [See Jones & Mayer Client Alert Memo, 9/16/10.]
The Court affirmed the trial court’s ruling that individual deputies shall not be afforded qualified immunity from civil liability for their role in drafting and executing an invalid search warrant. It is most significant that, prior to submission to the court for consideration, the warrants and affidavit were reviewed by the detective’s supervising sergeant and lieutenant. Thereafter, a deputy district attorney reviewed and signed the search warrant and, subsequently, a magistrate judge approved both the arrest and search warrants. Nonetheless, the deputies were denied qualified immunity.
As such, there must be careful consideration given to such a decision before relying on a nonstatutory warrant issued by a judge. If potential liability could be found under the circumstances of the Millender case, it is possible that an appellate court could find liability for a law enforcement officer relying on the issuance of a warrant not authorized under Penal Code 1524.
If SB 717 is passed, then these concerns will no longer exist. Since it appears likely that SB 717 will pass, and then immediately take effect upon being signed into law by the Governor, it behooves all law enforcement agencies to be prepared ahead of time. Having the county district attorney generate a one page warrant and affidavit will enable the speedy processing of such warrants if forcible taking of blood is necessary.
In this situation, as with all legal issues, we urge that you confer with your agency’s counsel and secure legal advice and guidance on how to proceed. As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446-1400 or via email atmjm@jones-mayer.com.
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