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Warrantless Blood Draw on an Unconscious Driver

Earlier this year, California’s Second District Court of Appeal refused to overturn a Fontana woman’s convictions for killing six individuals in a 2014 drunken-driving accident when blood was taken from her while she was unconscious.

Olivia Culbreath was driving on the 60 Freeway in the wrong direction when she crashed into another vehicle. Culbreath herself was rendered unconscious in the wreck and six others were killed, including Culbreath’s sister. Law enforcement officers obtained a blood sample from Culbreath while she was unconscious and without first obtaining a warrant. This blood sample showed that Culbreath’s blood alcohol concentration to be nearly twice the legal limit of .08.

On appeal, Culbreath argued that the trial court impermissibly admitted the blood test results as they were obtained without a warrant. Caselaw shows the courts’ clear preference that law enforcement obtain warrants for any search, including a blood draw. However, as the Court of Appeal found, there are still situations where officers can draw a person’s blood without first obtaining a warrant.

Overview of the Fourth Amendment and DUI Blood Draws

The Fourth Amendment to the U.S. Constitution prohibits government agents from conducting “unreasonable” searches and seizures. This prohibition extends to state and local law enforcement officers as well, including local police. When searches are determined to be in violation of the Fourth Amendment, any evidence collected by law enforcement during the illegal search may be suppressed and kept from being used against the person from whom the evidence was illegally taken. In order for a search to be considered “reasonable,” law enforcement officers must generally either obtain a warrant by presenting evidence to a judge that amounts to probable, or an exception to the warrant requirement must apply.Drawing blood from a person suspected of DUI has long been recognized as a “search” that must comply with the Fourth Amendment in order to be valid. This means that officers must either obtain a warrant from a judge before drawing a DUI suspect’s blood or be able to establish that an exception applies that justifies foregoing a warrant. If they do not, the person from whom blood was taken and who is charged with DUI may be able to keep the results of the blood test from being used against them.

Exigent Circumstances is an Exception to the Warrant Requirement

An exception to the warrant requirement exists when law enforcement officers are presented with “exigent circumstances.” Simply put, “exigent circumstances” are situations in which officers do not have an adequate amount of time to obtain a warrant without seriously risking the destruction or loss of evidence. For example, officers who approach a home, who have probable cause to believe methamphetamine is inside, and who then hear the frantic, repeated flushing of a toilet inside may be able to justify a warrantless entry into the home to search for methamphetamine or evidence of methamphetamine usage. Officers may be successful in arguing that it was likely methamphetamine or other evidence would have been irretrievably lost if they did not immediately enter the home and search.

The same principles apply in the context of a DUI blood draw as the result of the case Schmerber v. California (384 U.S. 757), decided more than half a century ago. Officers who have probable cause to believe a person is driving under the influence and who believe there are exigent circumstances justifying a warrantless blood draw may proceed to do so. Officers are not left to their own devices, though, in determining whether exigent circumstances exist. For example, the 2013 U.S. Supreme Court case Missouri v. McNeely (569 U.S. 141) stated that the fact that alcohol naturally metabolizes in a person’s body – and, as a result, their alcohol concentration reduces – over time is not, standing alone, a sufficient exigent circumstance that justifies a warrantless blood draw. In other words, officers need more than just a DUI arrest to claim that there are exigent circumstances to obtain blood without a warrant, and exigent circumstances needed to determined on a case-by-case basis.

Applicability to Culbreath’s Appeal

In her appeal, Culbreath argue that officers lacked exigent circumstances permitting them to draw her blood without a warrant. The Court of Appeal disagreed. The Court pointed not just to the serious nature of the accident but also to the fact that Culbreath was unconscious at the time her blood was drawn. Calling the situation facing law enforcement officers not an emergency but a “catastrophe,” the Court of Appeal had little difficulty in finding that officers were presented with an exigent circumstance upon responding to Culbreath’s wreck.

The Court of Appeal’s decision is also in accord with the recent U.S. Supreme Court case, Mitchell v. Wisconsin (588 U.S. _____, 139 S. Ct. 2525). In Mitchell, a 5-4 majority of the Supreme Court held that law enforcement may conduct a warrantless blood draw on a driver whose unconscious condition or stupor prevents officers from seeking a breath test. In such a situation, the Court reasoned, law enforcement is unlikely to have the time to obtain a warrant before the driver’s need for medical treatment takes away any opportunity to obtain an accurate sample of blood that can be tested. Subsequently, the unconscious nature of a DUI suspect became an important factor in determining whether exigent circumstances exist to justify a warrantless blood withdrawal.

Not a Blanket Authorization for Warrantless Blood Draws

The Mitchell decision does not mean that all warrantless blood draws on drivers suspected of DUI will be upheld. Even the U.S. Supreme Court left open the possibility that a warrantless blood draw may be unreasonable in certain situations, even if the driver is unconscious. A warrantless blood draw must still be premised on probable cause. And, while the Court did not carve out specific exceptions to its holding in Mitchell, the fact that the Court was willing to acknowledge that its holding may not apply in every circumstance should encourage drivers charged with DUI following a warrantless blood draw to seek legal assistance.

Warrantless blood draws that are conducted without probable cause to believe a driver is driving under the influence, or those performed where law enforcement officers could have easily obtained a warrant, may be successfully suppressed. Deciding to file a motion to suppress and filing such a motion in a timely manner may both be difficult for individuals without legal training. An experienced DUI defense lawyer in California can assist drivers facing DUI charges in determining whether a motion to suppress blood or breath test results should be filed in their cases.

Can You Beat a California DUI on Your Own Using Your Own Evidence?

Sometimes people will go to extreme lengths and incur substantial expenses in the name of “proving” their innocence. Case in point: a man in Florida was cited for speeding through a 15-mile-per-hour school zone and given a ticket that carried a $404 fine. Rather than pay the fine, the man embarked on a mission to prove his innocence and demonstrate that the school zone lights were not engaged and flashing at the time he was ticketed. After considerable expense of time and effort, the man’s quest was ultimately unsuccessful. The court hearing his case found him guilty of speeding and ordered him to pay the fine. This was despite video evidence suggesting that the school-zone lights were malfunctioning at the time the individual was pulled over and cited.

Examples of “Do-It-Yourself” DUI Defenses

The effort this individual from Florida undertook in combating his speeding ticket may be appealing to others charged with DUI in California. Following an unjust, unlawful, or baseless DUI arrest, a person may be as committed to proving their innocence as was this individual. As a result, the person may try to:

  • Video-record themselves performing field sobriety tests sober to demonstrate that they could not perform these tests correctly even if they did not drink
  • Record statements from others at a bar or restaurant from which the person left, saying that the person was not drunk or did not appear to be impaired
  • If stopped for an equipment violation, take photographs of your vehicle to show the allegedly-faulty equipment was actually working properly
  • Investigate the officer and obtain copies of the arresting officer’s certifications, disciplinary reports, and personnel records
  • Hire experts or forensic scientists to cast doubt on the testing methods or the manner in which the person’s blood or breath sample was analyzed
  • Find inconsistencies or errors, no matter how miniscule, in the officer’s report or affidavit

Exploring these and other potential defenses can easily consume a significant amount of time and require the investment of considerable financial resources. Those who choose to take this “do-it-yourself” approach to handling their DUI case may choose to forego legal counsel, believing that these potential avenues of defense will be more effective than any assistance an attorney could provide. And while some of these DIY methods may, in fact, produce exculpatory evidence, it may still nonetheless be inadmissible for a number of reasons.

Troubles with “Do-It-Yourself” DUI Defenses

As understandable as a person’s desire to represent themselves and handle their own DUI defense may be, such efforts are fraught with peril. Most significantly, much of the “evidence” the person spends so much time and effort in securing may ultimately not be helpful at a hearing or trial because:

  • The evidence is deemed irrelevant or immaterial to the central issues of the case
  • Experts are not properly qualified in order to give an opinion in court
  • Subpoenas for records and documents are not properly drafted and timely served on the right individuals
  • Cross-examination of the officer and the prosecution’s witnesses is not conducted in a helpful or persuasive way
  • Helpful witnesses are not brought to court to testify, and their out-of-court statements become inadmissible hearsay
  • Video recordings are not properly authenticated and shown to be reliable representations of the stop or investigation

Needless to say, evidence which may help prove innocence, may not be admissible in court unless a person knows the legal intricacies of admitting evidence.

Drivers who attempt to “prove their innocence” also tend to miss opportunities to attack the credibility of the prosecution’s witnesses and evidence. For example, while searching for a witness who can testify that the driver was not drunk when they left the bar, the driver may fail to move to suppress an incriminating breath or blood test results in a timely manner. Or, while the driver is busy attempting to “reconstruct” their performance on the field sobriety tests, they may forget to request the officer’s certifications or maintenance records of the breath testing machine. Or, quite simply, they may not know what to ask and how to ask it during cross examination of the prosecutor’s witnesses.

The Alternative to “Do-It-Yourself” DUI Defense – Hire an Attorney

Not only is an attorney able to help drivers facing a DUI charge decide on an appropriate path forward in a person’s case, but an attorney can also ensure the evidence needed to support those strategies is available for use in court. This is critical, because even the most well-considered defense strategy is of no use if it does not work in the courtroom.

For these reasons, it is vital that individuals charged with driving under the influence in California seek out and hire an experienced DUI defense attorney as soon as possible. A lawyer can work with an individual charged with DUI to evaluate the various defenses available to the person and pursue those strategies that have the greatest chance for success. These may include strategies to present exculpatory information in the proper manner, attacking the admissibility or credibility of the prosecution’s evidence, or a combination of the two.

A Driver’s Rights are Also at Risk When Representing One’s Self

Another significant danger that drivers who choose to handle their own DUI cases may risk is waiving (giving up) constitutional and statutory protections often overlooked by the “pro se” (in one’s own behalf) defendant. These include rights to confront and cross-examine the prosecution’s witnesses, the right to not be compelled to testify against one’s own interests, and the right to a speedy trial before a jury. When these rights are violated or infringed upon by the prosecution, the individual must take prompt and appropriate action to assert these rights or risk losing the ability to do so.

Choose Experienced, Reputable Legal Representation

When it comes to choosing whether to represent yourself in a DUI case or whether to obtain a lawyer’s help, there really is no choice: an attorney’s assistance can make a significant difference in the outcome of your case as well as how swiftly your case may resolve. No matter how strongly a person may feel that their charges are unjust or unfounded, or how confident one is in their own advocacy skills, a lawyer’s advice and skill is necessary to ensure one’s rights are protected and charges are subjected to the toughest scrutiny.

Consenting to a DUI Blood Draw

Prosecutors in California and other states are thrilled when they receive a DUI case from law enforcement officers which includes results from a blood draw of the suspect driver. Unlike breath testing machines like the Intoxilyzer, which are notoriously unreliable devices for measuring actual breath alcohol concentration, blood tests are more accurate. However, a blood draw can only happen if law enforcement officers get a warrant or get the person’s consent.

Consent Generally in California DUI Cases

The Fourth Amendment protects people from unreasonable searches and seizures by the government. This means that law enforcement must generally obtain a warrant before they can conduct searches of private property or persons. A blood draw, by literally going into a person’s body to extract evidence in a criminal case, is a search and seizure for Fourth Amendment purposes. Thus, any blood draw conducted by law enforcement must be “reasonable” or else the fruits of the search may be suppressed. In order to be “reasonable,” a search or seizure must be performed according to a validly-issued search warrant or an exception to the warrant requirement must apply.

The consent of the person to be searched has long been recognized as an exception that relieves law enforcement of their obligation to obtain a warrant for the person’s blood. Stated another way, a person can consent to a blood draw in a DUI investigation, and this consent means that law enforcement does not need to first get a warrant. So long as the person’s consent is knowing and voluntary, the blood draw and the test results that follow will all be admitted into evidence.

As mentioned, to be valid, generally speaking, consent must be freely and knowingly given. This means that a person’s decision to give consent cannot be unduly influenced by improper police behavior or pressure. Similarly, the person’s choice of whether to give consent must be a choice that is informed and not impacted by false legal information. If consent is not freely and voluntarily given, then officers may not be able to rely upon it to search or seize evidence, including a blood sample, unless they obtain a warrant.

Drivers Do Not Need to Consent to a Blood Draw

Obtaining a warrant can be a hassle, especially for an overworked or tired officer or deputy. As a result, that officer or deputy may attempt to get a driver’s consent for a blood draw rather than go through the process of obtaining a warrant. The officer may indicate, for example, that California’s implied consent laws mean that the driver must submit to a blood test whether the driver wants to or not. Or the officer may attempt to coerce consent by threatening the driver with additional criminal or administrative penalties for refusing to give their consent.

It is true that California does have an implied consent law, which requires drivers who have been arrested on suspicion of a DUI to submit to a breath or blood test. If a driver refuses, the officer must obtain a warrant, and the driver can be subject to additional penalties being imposed for the refusal. The constitutionality of this implied consent law, however, is in question thanks to a 2016 U.S. Supreme Court decision, Birchfield v. North Dakota. In that case, the Supreme Court of the United States held that a North Dakota law that criminalized a driver’s refusal to submit to warrantless blood tests incident to arrest was unconstitutional and violated the driver’s Fourth Amendment rights.

In light of Birchfield, California’s implied consent law as applied to warrantless blood draws is now of questionable constitutionality. The Court in Birchfield held that it was unconstitutional to create a separate crime to refuse a blood test, but California does not make it a separate crime. It only imposes additional penalties. The court has yet to extend the ruling to merely imposing additional penalties, rather than making it a separate crime to refuse. This means that, for now, drivers who are arrested for DUI should not feel compelled to consent to a blood draw.

Defenses in a DUI Blood Draw Case

If a driver consented to a blood draw, there may still be several ways to defend against the DUI charge. Just as is true with breathalyzers, there are procedures that law enforcement officers, or medical professionals at the direction of law enforcement officials, must follow when performing a blood draw. These are designed to ensure the blood sample is collected in a safe manner that minimizes the risk of contamination of the sample. If these procedures are not followed, a motion to suppress may keep the blood test results from being admissible – even if the driver consented to the test.

In a similar way, blood test results obtained by consent may be suppressed if officers obtained the driver’s consent through deceptive, unfair, or illegal actions. To be valid, consent must be freely and knowingly given by the driver. An obvious example of invalid consent would be “consent” obtained through physical force or the threat of physical force. Officers cannot threaten bodily harm to drivers and thereby obtain their consent to blood testing, nor can officers make false statements about their right to search without a warrant. Consent given by a driver after an arresting officer says they will be “locked up and the key thrown away” for refusing a blood test is not consent that is “freely” given.

Finally, drivers remain free to revoke any consent previously given up to the moment the blood draw is actually completed. If the driver clearly communicates that they are withdrawing their consent to a blood draw, officers are required to proceed as if consent had never been given and obtain a warrant for the blood draw. If they do not, the blood draw and results may be successfully suppressed.

Other defenses may be available, but some may require a careful and detailed analysis to know whether they are applicable in a given case. Drivers facing DUI charges should discuss their case with experienced legal counsel as soon as possible.

Motion to Suppress Evidence in a California DUI

From a prosecutor’s perspective, presenting a successful DUI case is a bit like putting together a puzzle. The prosecutor must bring together different “pieces” of evidence – breath or blood test results, the driver’s performance during field sobriety tests, and statements made by the driver during the investigation – in order to secure a conviction. If someone were to take away some or all of these pieces of evidence, the prosecutor’s job becomes much more difficult – if not impossible.

The way in which a person charged with DUI removes these puzzle pieces from the prosecutor’s case is through a motion to suppress evidence. This is a legal motion that asks the court to keep illegally-obtained evidence from being used in court against the person charged with DUI. Filing, presenting, and successfully using these motions may have a significant impact on the outcome of a California DUI case.

What is the Motion to Suppress Evidence?

Motions to suppress evidence in DUI cases are permitted by California Penal Code 1538.5. This section says, “A defendant may move … to suppress as evidence any tangible or intangible thing obtained as the result of a search or seizure.” “Tangible” things would include evidence such as alcohol containers, photographs, or receipts from bars, and the printouts or results of alcohol tests. “Intangible” evidence would include statements made by the accused driver or the statements of police officers or witnesses.

California Penal Code 1538.5 permits defendants to file motions to suppress where law enforcement officers obtain tangible or intangible evidence through illegal searches and seizures. Examples of illegally-obtained evidence in DUI cases can include:

  • Statements from the driver obtained in violation of Miranda
  • A driver’s field sobriety tests or evidence found in their car if the officer had no reasonable suspicion to stop the driver’s car
  • Breath or blood test results from samples that were illegally collected or obtained following an unlawful arrest
  • Searches or seizures based upon a defective warrant

One motion to suppress may cover only one specific piece of evidence, such as the driver’s blood test results. Alternatively, one motion may encompass many items of evidence, like “all evidence obtained after and stemming from” the driver’s illegal arrest.

Motions to suppress evidence are designed to discourage unlawful, unconstitutional, and unconscionable behavior by law enforcement officers during investigations. Thus, a motion to suppress may be successful, for example, even if law enforcement had a valid warrant to search or seize evidence but acted unlawfully in collecting that evidence.

What is the Process to File a Motion to Suppress Evidence in California?

While someone could move to suppress evidence in the midst of their trial when the prosecutor tries to present the evidence to the judge or jury, the better practice is to seek to suppress evidence earlier, ahead of trial. The person accused of DUI will file their motion with the court hearing their case. The motion will need to describe the evidence the person wants suppressed and the factual and legal reasons why such evidence should be suppressed.

Once filed, the motion will be set for a hearing with the court, meaning the judge on the case, the prosecutor, and the defense attorney. At this hearing, if any evidence was obtained without a warrant, it is the prosecutor’s responsibility to show the court that the evidence complained about in the motion was lawfully obtained. The driver who filed the motion to suppress is not required to prove that the evidence was unlawfully obtained, unless a warrant was used to obtain the evidence.

The judge will rule on the motion rather quickly; most times, the judge will announce their ruling at the conclusion of the hearing while both the prosecutor and the accused (and their defense attorney) are still in court. If the motion is granted, the evidence described in the motion will be suppressed, and the prosecutor will not be able to discuss or introduce the suppressed evidence at any future hearing or at trial

How can a Motion to Suppress Lead to Acquittal?

What happens next depends on how important the suppressed evidence is to the prosecutor’s case. A suppressed incriminating statement (a driver’s statement that they “drank six beers about an hour ago”) or suppressed alcohol test results, may make it impossible for the prosecutor to prove the driver was driving while impaired. As a result, the prosecutor may need to change the DUI charge to a less serious offense or dismiss the DUI charge altogether. Remember that puzzle that the prosecutor is trying to put together? It’s going to be that much more difficult to put the puzzle together while missing such big pieces.

What Happens if the Court Denies a Motion to Suppress?

If a person’s motion to suppress evidence is denied, then that means that the prosecutor can discuss and admit the evidence in question. While the person may request the court reconsider their motion to suppress, the court will not likely change its mind absent new, binding law or significant and newly-discovered facts.

If the person is eventually convicted of DUI, they may appeal their conviction to an appellate court. There, they can argue that the trial court was incorrect in denying the motion to suppress. If the trial court should have granted the motion and suppressed the evidence, the appellate court may send the case back to the trial court with appropriate instructions.

Some Final Thoughts

As can be seen, a motion to suppress evidence can be a powerful tool in defending oneself against DUI charges in California. Knowing what evidence should be suppressed in a DUI case takes legal knowledge and experience. While a driver with no legal background could learn how to write and file a motion to suppress evidence, they would likely fail to identify evidence that could be suppressed or would miss legal precedents that would help their case. Bottom line: An experienced California DUI lawyer can help drivers facing charges protect themselves and their rights from overzealous police officers and prosecutors.

 

Saliva Test for THC Level Detection in Development

In recent years, cannabis and its derivatives having been gaining traction in the United States. Cannabis has become a serious competitor to alcohol’s long-lived reign as Americans’ recreational drug of choice. This competition primarily stems from several progressive cities and states’ decisions to relax the legal restrictions on the long-outlawed drug. Although the relaxation of laws surrounding cannabis and its byproducts results in plenty of benefits, there are drawbacks as well.

A Highway Loss Data Institute study in April of 2018 found that car crashes were up in states that had recently relaxed their laws concerning cannabis. For instance, car collisions were up as much as six percent in Colorado, Oregon, and Washington when compared with neighboring states that had not legalized the recreational use of cannabis. In an attempt to grapple with the issue, state legislators are looking into drafting laws targeting marijuana users who drive while intoxicated.

However, laws targeting stoned drivers are not as clear cut as those targeting drunk drivers. Tetrahydrocannabinol (THC), the psychoactive component of marijuana that causes intoxication, can stay in an individual’s bloodstream for days—sometimes even weeks. Alcohol, on the other hand, only stays in a person’s system for a couple of hours. Additionally, legislators have been able to create “per se” laws, or laws that punish a person for merely having a certain amount of alcohol in their system (0.08 percent BAC in all states except Utah where it is 0.05 percent BAC) regardless of intoxication level because science has proven that the per se levels correspond to the point at which a person cannot operate a vehicle as a sober person would. Since THC can stay in a person’s system well after they have sobered up, most states do not have per se laws for THC. Doing so creates the possibility that marijuana users be arrested for a DUI weeks after they have ingested the drug and well after they have sobered up from it. In other words, such laws would allow officers to arrest completely sober drivers for a DUI simply because they had THC in their system from smoking days, possibly weeks ago.

So how can law enforcement officers get an accurate measure of which drivers are THC-impaired and thus reduce collisions in the states that have legalized recreational use of the drug?

Researchers at the University of Texas, Dallas believe they have a solution. They have engineered THC sensor strips and accompanying electronic readers. The THC sensor strips contain two electrodes that are coated with an antibody that binds THC and isolates it from other compounds found in an individual’s saliva. When an individual’s saliva is put on the test strip, the strip is put into the electronic reader. A strip with THC on it rather than just normal saliva will result in a different electrical current that increases with the amount of THC in that individual’s saliva. The test takes about five minutes from start to finish, making it appealing to law enforcement for use during traffic stops. As of now, it is not clear whether the method of ingestion of THC makes a difference and how long exactly THC will remain on an individual’s tongue.

The saliva THC test is still in its early stages, but researchers say it is accurate for THC levels ranging from 100 picograms per milliliter to 100 nanograms per milliliter. One of the study’s lead researchers, Dr. Shalini Prasad, stated that preliminary clinical reports seem to suggest that one to fifteen nanograms of THC per milliliters of blood would make a driver impaired. Again, although the suggestion that a person can be impaired merely by having THC in their system may be true, the fact that a person can also still be sober while having the same levels of THC suggested by Dr. Prasad means that laws still cannot be based on THC alone without some indication of impairment as well. The hope is that this saliva test closes the gap between the mere presence of THC in a person and their intoxication from it.

While drivers have no need to worry about the saliva THC test in development at the moment, it is certainly something to keep an eye on. If the history of the breathalyzer and its rise to prominence tells us anything, the saliva THC test will soon be an important component in a law enforcement officer’s toolkits. Perhaps it will be used as frequently as breathalyzers are.