Warrantless Blood Draw and Warrantless Entry Home

May 9, 2014

Warrantless Blood DrawWarrantless blood draw is becoming easier to defend for a Los Angeles DUI attorney.  In the Supreme Court case of Missouri v. McNeely court decided that elimination of alcohol in DUI drivers’ blood is not an exigent circumstance to the warrant requirement.   Before this decision, Los Angeles DUI lawyers struggled to keep blood tests out because California courts permitted warrantless blood draw.  California courts permitted warrantless blood draw based on their interpretation of Schmerber v. California.  Also, California Vehicle Code 40300.5(e), permitted arrest of Los Angeles DUI drivers to prevent destruction of evidence (see People v. Schofield (2001) 90 Cal.App.4th 968).   The courts in Schoefield permitted warrantless arrest based on “person might destroy or conceal evidence unless arrested” language.  This is a very unfair interpretation of the law because logical interpretation of this language is that unless the person is arrested, he will throw away evidence of a crime.  Schofield court decided to read CVC 40300.5 (e) permitting arrested because the blood alcohol content dissipates over time – in other words the person’s bodily functions are implicated in the destruction of evidence!  Absurd reading of the statute (because person is not really doing anything – in fact, he can be sleeping).  Luckily that reading was overturned byMcNeely.  Now Los Angeles DUI lawyers have a powerful weapon in their arsenal.

But even more awesome, is McNeely’s practical overturning of California Supreme Court case of People v. Thompson (2006) 38 Cal.4th 811, which allowed warrantless entry into a home and arrest for a DUI based on exigent circumstances of loss of blood alcohol evidence.   How California justified such injustice despite requiring police officers to be present for misdemeanor crime to cause a misdemeanor arrest?  By relying on CVC 40300.5(e) off course!  Thankfully Mcneely held that dissipation of blood is not a probable cause for a search – limiting CVC 40300.5(e) to cases not involving dissipation of blood and in fact overturning Schofieldand Thompson.

Prior to McNeely, in Hopkins v. Bonvicino 573 F.3d 752 (2009), 9th circuit (relying on Welsh v. Wisconsin (1984) 466 U.S. 740) disallowed police’s warrantless entry into home to arrest a suspect for a  a DUI.  (Reliance of Circuit court decisions in issues of constitutional importance are precedent to California state courts).  The Circuit Court held, “an exigency related to a misdemeanor will seldom, if ever, justify a warrantless entry into the home.” “Accordingly, even were there probable cause that Hopkins had in fact been driving under the influence, a warrantless entry into home was unjustified.” (Bonvicino, at p. 9045.)   California wiggled out of Hopkins decision; it would be a lot harder to wiggle out of McNeely.

In short, the state of the law is now such that warrantless entry into home of a suspected DUI driver is not permitted if the justification for the entry is the preservation of evidence.  Police ability to do a warrantless blood draw is also limited.  Police officers can still rely on “hot pursuit” or “welfare check” to justify such warrantless entry – but those issues (if in fact present) need to be fully litigated in an evidentiary hearing by skilled Los Angeles drunk driving attorneys.  If you are facing similar situation after being arrested for a DUI in Los Angeles, please contact our office to go over your case for free.   Our top Los Angeles DUI attorneys will help you design a strategy for defending your drunk driving case.  You can always call us (818) 921 7744 to talk to Los Angeles DUI lawyer directly.

Los Angles DUI Attorney is here to help you fight your case.  Our goal is to get the best possible deal for our clients.  We accept all forms of payment and will take your call even in the middle of the night.  Please do not hesitate to call us and we will be there to help you.

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One response to “Warrantless Blood Draw and Warrantless Entry Home”

  1. Aubrey Vizza says:

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