DUI Defense: Forced Blood Draws in California DUI Cases

April 19, 2013

FAMOUS DUI CASE ” PEOPLE V. FISCALINI” ON FORCED BLOOD DRAWS

forced Blood DrawsA famous case of forced blood draw is a case of People v. Fiscalini. On April 9, 1989 Alfred Fiscalini drove his car on a wrong side of the street, caused an accident and injury to the occupants of the car going the opposite way. The police, when arrived, arrested Alfred Fiscalini for drunk driving after he failed the field sobriety tests and after he appeared to be under the influence of drugs or alcohol or both. After the arrest, the police took consensual sample of Mr. Fiscalini’s urine, but also took a forced blood draw from from Mr. Fiscalini with the blood alcohol results of .1357%.

Mr. Fiscalini was charged and tried for drunk driving. He was convicted, but appealed his decision based on the trial court’s denial of a search and seizure motion to suppress results of the forced blood draw.

The appeal was based on violation of the right to chose a test to be given and also on the police’s forced blood draw test which Fiscalini argued was unnecessary because the police already had the urine sample. The court agreed, concluding that the People did not demonstrate sufficient need to withdraw Fiscalini’s blood without his consent after he provided the urine sample. Thus, once one sample is provided (even if it is urine), the driver is not required to submit to any additional test. (People v. Fiscalini (1991) 228 Cal. App 3d 1639).

Fiscalini’s importance however is not only in its conclusion that a person arrested for a DUI in Los Angeles (or anywhere else) need only to submit to one test, but in notion that human dignity and privacy are extremely important rights that have to be protected by the 4th amendment. It quotes Schmerber “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State” … “interests in human dignity and privacy protected by the Fourth Amendment forbid searches involving intrusions beyond the body’s surface based “on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” It then cites to Winston v. Lee where the evidence consisting of a bullet was suppressed because a surgery without consent was used to get it. In Winston v. Lee, 470 U.S. 753, the court emphasized that the government had other evidence of the crime, therefore the bullet was not as important to get. This rational is perfect for Los Angeles DUI lawyers who defend cases here, where often, police relies on other evidence then blood to prosecute drunk driving (such smell of alcohol, failing on field sobriety test, bad driving, red watery eye). Winston v. Lee directs the court to suppress a forced blood draw because the police has other evidence of the DUI.

SUPREME COURT DUI CASE “MISSOURI V. MCNEELY” ON FORCED BLOOD DRAWS

The Supreme Court of the United States decided on April 17, 2013 that the blood alcohol results from a defendant arrested for a DUI are properly suppressed when the blood is obtained without a warrant or consent and the only reason for not obtaining a warrant was police officer’s concern that evidence of alcohol intoxication would dissipate by the delay caused in obtaining the warrant.  The court rejected a “per se” rule that would permit police officers after a DUI arrest to force blood from a suspect because of a natural dissipation of alcohol.

The importance of this case can not be ignored especially in counties where law enforcement agencies routinely force blood from drivers suspected of DUI (e.g.: Orange County).  But more importantly, although the court decision is limited to DUI investigations, the rule IMHO can be extended to forced blood draw in any case where there are no “special” facts aside from natural dissipation of alcohol (or may be any other substance).  Argument extending the application of McNeely to similar cases are better left for lawyers – who can defend you or your loved one against police intrusions.  If you are arrested for Marijuana DUI in Los Angles, be sure to call Los Angeles DUI attorneys who can help argue that forced testing for any substance where there are no additional exigency is a violation of McNeely.

Factually, McNeely is simple.  He was arrested for a driving while intoxicated after being pulled over for speeding and crossing a centerline.  He refused to submit to a chemical test, causing the arresting officer to forcefully draw McNeely’s blood and obtaining a BAC result of .15 percent.  The arresting officer never bothered to obtain a warrant.

Sonia Sotomayor concluded in the majority opinion that in a “drunk-driving investigation, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant”.    The opinion can be found here .  The true value of McNeely is it limit on Schmerber, a 1966 decisionto cases where the reasons for a delay in obtaining a warrant for a “blood draw” is not simply blood dissipation over time.  In Schmerber, there was an accident that cause the police officer who investigated the collision to spend time transporting Schmerber to the hospital and investigating the accident.  In McNeely, there was no accident and the police officer was not delayed “investigating the accident” or “transporting the injuries suspect” to the hospital – thus, the court concluded, the officer was not delayed by anything else and could have applied for a warrant.

It would be curious to see if McNeely can be used to argued that 40300.5(e) of California Vehicle Code does not permit the arrest of drivers for a DUI without a warrant because mere dissipation of blood is not a sufficient exigency to trigger an arrest and subsequent demand of a blood test by a peace officer.

Amazingly, even Scalia agreed with the majority that the “State” arguments are unpersuasive in part because current technology allows and various State jurisdiction permit application for a warrant without the officer having to go anywhere.  For example, California Penal Code Section 1526(b) permits application for a warrant by telephone and facsimile or by telephone and email – permitting an officer to obtain a warrant relatively quickly.   Moreover, for DUI investigations, some jurisdictions use pre-printed forms – further allowing streamlining the warrant process.

 

Los Angeles DUI Attorney

For a free consultation about your Los Angeles Drunk Driving case please contact our office at (818) 921 7744 . Bear in mind that the right to have a DMV hearing expires 10 days after the arrest. Los Angeles DUI lawyer can help you win your case. We do hope we get the chance to show you how aggressively we can fight for you. 

1

YOU MAY ALSO BE INTERESTED IN:

 

waste of timepoornot badgoodexcellent (No Ratings Yet)
Loading...

Leave a Reply

Your email address will not be published. Required fields are marked *

ATTENTION

THIS WEBSITE IS CREATED FOR ADVERTISEMENT PURPOSES AND DOES NOT ESTABLISH AN ATTORNEY CLIENT RELATIONSHIP. UNLESS THERE IS A CONTRACTUAL AGREEMENT BETWEEN ATTORNEY AND CLIENT. DO NOT USE INFORMATION ON THIS WEBSITE FOR LEGAL ADVICE WITHOUT TALKING TO AN ATTORNEY ABOUT SPECIFICS OF YOUR CASE. EXAMPLES AND CONSULTATION WILL NOT GUARANTEE INDIVIDUAL RESULTS.
ALL CONTENT ON THIS SITE IS CREATED FOR ATTORNEY ALEX ANDRYUSCHENKO