In the ever changing landscape of our Driving Under the Influence defense practice, we have the opportunity to forge some currently unsettled area of the law regarding how California’s Implied Consent Laws impact a client’s blood draw during a DUI investigation. In a current case I am handling, the issue is whether, in the absence of express consent, implied consent laws can be successfully utilized by the District Attorney to save an otherwise non-consensual blood draw from the client?

By way of some legal background, in the Supreme Court case Missouri v. McNeely (2013) 569 U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696, a Missouri police officer stopped McNeely and determined he was intoxicated. McNeely declined to use a portable breath-test device to measure his blood alcohol concentration. The officer subsequently placed McNeely under arrest. When McNeely indicated that he would refuse to provide a breath sample, the officer took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. At the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. McNeely refused. The officer then directed a hospital lab technician to take a blood sample. McNeely was charged with driving while intoxicated. McNeely argued that the results of the blood test had to be suppressed arguing that under the totality of the circumstances, taking his blood for chemical testing without a search warrant violated his rights under the Fourth Amendment. The McNeely trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. The Missouri Supreme Court affirmed, recognizing that Schmerber v. California (1966) 384 U. S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 “provide[d] the backdrop” to its analysis. The Missouri Supreme Court held that Schmerber directed courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw. The court further concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” Finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. The United States Supreme Court affirmed and found that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the warrant requirement.

Such newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Davis v. United States (2011) 131 S. Ct. 2419, 2430, 180 L. Ed. 2d 285. A decision simply becomes part of the body of case law of this state, and under ordinary principles of stare decisis, applies in all cases not yet final. As a rule, judicial decisions apply “retroactively.” Indeed, a legal system based on precedent has a built-in presumption of retroactivity. People v. Guerra (1984) 37 Cal.3d 385, 399, 208 Cal.Rptr. 162, 690 P.2d 635. In Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases.” The justices in Davis, supra, would agree that the McNeely rule applies retroactively and may be invoked “[b]ecause Davis’s conviction had not become final when Gant was announced, Gant applies retroactively in this case, and Davis may invoke its newly announced rule as a basis for seeking relief. See Griffith v. Kentucky 479 U.S. 314, 326, 328, 107 S.Ct. 708, 93 L.Ed.2d 649.” Davis v. United States (2011) 131 S. Ct. 2419, 2422, 180 L. Ed. 2d 285. As a result, individuals charged with driving under the influence who had blood drawn in the absence of their consent, without a warrant and whose cases are/were pending and not yet final on April 17, 2013, are governed by the holding set forth in Missouri v. McNeely.

With the above as some legal background, the issue I am involved with turns to California’s implied consent laws. Implied consent laws are used to establish that by accepting a driver’s license, a driver in California agrees to submit to a chemical test if detained on suspicion of drunk-driving. The United States Supreme Court decision in McNeely does not invalidate existing implied consent laws. The seizure in McNeely was expressly non-consensual. McNeely simply requires that if a person revokes their “implied” consent, a warrant must be obtained. No California court has expressly considered whether a blood draw taken pursuant to the implied consent law is justifiable under the Fourth Amendment as a consent search. The constitutional attacks on such implied consent laws simply cite and rely on the Schmerber decision discussed above. In fact, it has been noted that California’s implied consent law “is an adjunct to” Schmerber. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 at 760. The reading of such cases suggests that any chemical test taken cooperatively pursuant to the implied consent law would have also been constitutionally permissible as a forced test had the person refused to cooperate.

However, the issue for me then is this: Is it constitutionally permissible to allow a blood draw under California’s implied consent statutes with warrantless non-exigent circumstances if the draw violates the Fourth Amendment if done forcibly? A blood draw under California’s implied consent statutes and one analyzed under Schmerber and McNeely are different. See McNeely, supra, 133 S.Ct. at 1566; South Dakota v. Neville (1983) 459 U.S. 553, 559-60. See also United States v. Chapel (9th Cir. 1995) 55 F.Jd. 1416, 1419-20. With any Fourth Amendment consent, express or implied, consent still must be free and voluntary, rather than coerced or given in submission to authority. People v. Lawler (1973) 9 Cal.3d 156, 163; People v. Challoner (1982) 136 Cal.App.3d 779, 781. I would recognize that by choosing to drive on highways, drivers are subject to the regulations of implied consent laws. See Troppman v. Valverde (2007) 40 Cal.4th 1121, 1125, 1139. However, California’s implied consent for Fourth Amendment purposes must still be free and voluntary considered under a totality of the circumstances analysis. As an example, there are penalties leveled against drivers for refusals to cooperate with such testing upon arrest which would render such perceived implied consent illusory. See California Vehicle Code §§13353 [loss of driving privilege consequences for refusal] and 23577 [enhanced criminal consequences for being convicted of driving under the influence]. See also California Vehicle Code §§23612. It is presumed by law that a drivers is aware of these punishments. Murphy v. Clayton (1896 113 Cal. 153, 161; People v. Munroe (1893) 100 Cal. 664, 670; Bank One Texas v. Pollack (1994) 24 Cal.App.4th 973, 981. Although not completely dispositive on the issue of consent, the consequences taken in connection with other factors can still render implied consent involuntary. There is no per se exception to consent to trump Fourth Amendment protections simply because a statutory scheme was adhered to. Outside factors can still be considered and utilized in the Court’s analysis in determining the voluntariness of the consent under the totality of the circumstances. This would be consistent with analysis in McNeely and Schmerber. To analyze otherwise would lead to the inevitable conclusion that a driver arrested for driving under the influence would be subject to forcible blood draws in every circumstance under implied consent, disregarding any Fourth Amendment violations, however egregious. Even McNeely notes that the intent is not to do so, suggesting a driver’s refusal to submit to a chemical test under an implied consent law operates as a withdrawal of consent and renders any subsequent test non-consensual. McNeely, supra, 133 S.Ct. at p. 1566. Accordingly, the voluntariness of the consent would follow under a totality of the circumstances analysis that would include the implications and a driver’s understandings of California’ implied consent laws. Thus a driver who does not voluntarily and consensually cooperate with a chemical test pursuant to the implied consent law because of duress or coercion has not rendered consent, and a warrant would be required. Under a totality of the circumstances, ostensible adherence to the requirements of California’s implied consent statutes would not render a blood draw per se constitutionally proper if other factors outside the statutes would compromise the voluntariness of the consent. Conversely, neither is an officer’s failure to comply with the implied consent law an automatic violation of an arrestee’s constitutional rights. Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 118. Again, a totality of the circumstances analysis is needed. As I argued, any reliance on implied consent to save an involved warrantless search can still be constitutionally defective. Stay tuned as the issue moves forward and I will provide more through the appeal process.

Social Media has been landing people in jail more and more frequently, Colleen Cudney, 22, is learning this first hand.

Cudney is on probation from a 2012 DUI conviction, and as part of her probation she is restricted from having any alcohol & is subject to random alcohol testing. According to a Michigan news channel, she was called in for a random alcohol test the day after St. Patricks Day. Here is what she posted on Facebook: “Buzz killer for me, I had to breathalyze this morning and I drank yesterday but I passed thank god lol.”.

She allegedly posted that in a status update that was eventually brought to the attention of law enforcement. After bragging about passing the test, when she clearly should have failed. Cudney was called in for another test—but reportedly hung up.

Cudney is now due in court for this coming tuesday and may face up to 93 days in jail. I’m speculating when I say, she is avoiding A Urine test which can detect alcohol for up to 80 hours before screening. 

Once again, please be mindful of how you use social media.

However if you do get in a situation similar to this, don’t be afraid to contact us for some free advice by filling the form to the right or calling us directly at (800) 500-5342.

Driving Under the influence is one of the most committed crimes in the state of California. Checkpoints are an easy way for law enforcement to, “shoot fish in a barrel.” It is very easy for officers to maintain an arrest from a DUI at a checkpoint because they are legal in the state of California. But, you may now know that DUI checkpoints are illegal in 12 other states. The California Supreme Court upheld a decision of the lower court that found that sobriety checks are constitutional. In the landmark California Supreme Court case: Ingersoll v. Palmer (43 Cal.3d 1321 (1987), the Supreme Court established several requirements that police officers must adhere to, so that the stop is valid and does not violate your constitutional rights.

At a DUI checkpoints officers evaluate your sobriety within a brief period. They are looking for objective symptoms of intoxication: bloodshot/watery eyes, slurred speech, or even alcohol odor. If even one symptom is readily available “bloodshot/watery eyes” the police officer is entitled to pull you over for subsequent DUI investigation. If there are no symptoms present, they must release you from the minor detainment.

There are certain requirements for a DUI checkpoint to be legal and enforceable in a court of law: Needs to be published in advance of the checkpoint, time and circumstances of detention, location, and a supervising officer needs to be present at the scene. We should examine each in detail:

1) Need to publish in advance of the checkpoint: this requirement is a integral to lower the interference of the DUI checkpoint and boost its prevention in reducing DUI cases.

2) Time and circumstances of detention: this requirement is in place in order to limit the time that the DUI is invasive in your life. Law enforcement is only allowed to detain you for the time necessary to look for objective symptoms of intoxication, then need to let you be on your way.

3) Location: this requirement is due to a number of factors including: safety of the public, proper and adequate lighting, appropriate number of cars in proportion to the stop, officers have to be in uniform, and high DUI needs to be proven in that specific vicinity.

4) Supervising Officer needs to be present: this requirement is in place to protect citizens from improper selection of cars. Supervising officer has full control over the DUI Checkpoint including but not limited to time, location and which cars to stop for example the supervisor can select every 5th car or every 10th car. They cannot select you based upon what you look like or what type of car you are driving at the time.

All of this being said you might still have the question,” How do I get out of a DUI checkpoint” and that brings me to my last requirement #5.

5) A motorist has to have ample opportunity to leave the DUI checkpoint if they do not wish to stop: Most people do not know this but you do not have to stop at a DUI checkpoint. Further, you may not be stopped and briefly detained just because you simply tried to steer clear of the checkpoint. It is also required that officers post visible lighted signs that a checkpoint is coming up soon. Finally, there needs to be a legal place to turn out or around to go a different way.

But, if you commit some sort of vehicle code violation, for example: an illegal u-turn, then there is probable cause that a traffic offense occurred in the presence of an officer and they can get you to the side of the road legally.

BOTTOM LINE: Avoid DUI checkpoints at all costs because you can do it legally without committing a vehicle code violation in the presence of an officer. that is how you can get out of a DUI checkpoint.

This coming New Years Eve, California DUI check points are rumored to begin the use of an Instant Drug Test system known as the ‘Dräger DrugTest® 5000’. This drug tester that is only available to Law Enforcement can detect amphetamines, designer amphetamines, opiates, cocaine and metabolites, benzodiazepines, cannabinoids and methadone almost instantly.

In just a few minutes, this quick & painless drug test can be administered by law enforcement at DUI check points anywhere.

Here is how the test is administered: The donor will place the Drager 5000 collector inside his or her mouth and, by using a sideways motion between the cheek and gum, takes an oral fluid sample. As soon as sufficient fluid has been gathered, the built-in indicator will turn blue and the test cassette can be handed back to the Officer.

With all the new drug & alcohol detection technologies available, this is just another reminder; do no not drink and drive.