Vol. 28 No. 22 – A Warrant Can Now Be Secured To Draw Blood From A Misdemeanor DUI Suspect


On April 18, 2013, JONES & MAYER published a Client Alert Memo, Vol. 28, No. 8, regarding the U.S. Supreme Court decision which held that law enforcement must, in most cases, first secure a search warrant before drawing blood from a DUI suspect.

“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.’ 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.’”

We also pointed out that, at that time, a problem existed for California law enforcement since California law did not permit securing a warrant for a misdemeanor.  Cal Pen Code 1524(a), provided a list of grounds for obtaining a search warrant and, although it included securing a search warrant when a felony is involved, misdemeanor DUI’s were not included on this list.

Penal Code Amended

We are pleased to inform you that Governor Brown signed into law SB 717, which amends Penal Code section 1524, effective immediately, and will now enable California law enforcement officers to secure the required search warrant.

As pointed out in the legislation, existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.  Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.

This bill would additionally permit the issuance of a search warrant to authorize a blood draw 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, a blood test, as specified.

SB 717 adds (a)(13) to Penal Code 1524 which reads:

“When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.”


As set forth above, and articulated in detail in the Client Alert Memo from April, the U.S. Supreme Court held that “the Missouri Court relied on the case of Schmerber v. Californiawhere the . . . Court upheld a warrantless, nonconsensual, blood test in a DUI case under the exigent circumstances exception to the warrant requirement. There, the Court found that the natural elimination of alcohol from the bloodstream steadily destroys criminal evidence, and can create exigent circumstances that justify dispensing with the warrant requirement. Yet the Court’s decision in Schmerber was premised on the totality of the factual circumstances, not merely on the singular fact that the suspect’s incriminating blood alcohol content was naturally dissipating.” (emphasis added.)

It is important to note that Schmerber did not establish any legal authority to routinely draw blood from a DUI suspect – it required articulating a factual basis that shows exigent circumstances existed.

The Supreme Court held, further, in the Missouri case, that not all DUI investigations are “now or never” situations where an exigency truly exists and there is no time to obtain a warrant. It states that “the importance of requiring authorization by a ‘neutral and detached magistrate’ before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.”

The Court acknowledged that the alcohol dissipates naturally and gradually over time in a relatively consistent manner but “it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State. . . .”

As such, “(i)n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

The Court also stated that “We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in

Schmerber, . . . .”

This new law will now enable California law enforcement to comply with the Supreme Court’s decision and secure the necessary warrant when exigent circumstances do not exist.

It is imperative that law enforcement secure advice and guidance from its own legal counsel when applying the law, especially when it appears to modify, what was presumed to be, existing law.  As always, should you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney – client relationship.