On June 21, 1970, Allan Hawkins ran a stop-sign and hit another car, killing his passenger and injuring a person in that other car. (People v. Superior Court (Hawkins) 6 Cal 3d 757 (1972). CHP took a vial of Hawkins’ blood from the hospital (to which he was taken to by an ambulance). But CHP never arrested Allan Hawkins. Once authorities obtained results of the blood test, Hawkins was charged with felony drunk driving and felony vehicular manslaughter. Hawkins’ lawyer filed a motion to suppress his blood test results based on (1) Hawkins’ consent was not given freely and voluntarily and (2) no exception to warrantless search of Hawkins. The second argument needs a little explaining:
The government conceded that Hawkins’ consent was not given freely and voluntarily. Conceding that, the government needed either a warrant or an exception to it to justify the blood draw. Recently decided Shmerber v. California (1966) produced a set or conditions to justify a warrantless blood draw:
- (1) it is done in a medically approved manner;
- (2) it is incident to a lawful arrest, and
- (3) it is based upon reasonable belief that the person is intoxicated.
Here, the argumen is that a warrantless blood draw was missing the second element; that is, it was not a search incident to lawful arrest.
The court suppresed the results of a blood draw and the Court of Appeal affirmed. The court gave us two reasons why the defense won:
- 1. The defendant did not freely and voluntarily consent to the taking of his blood;
- 2. The defendant was not arrested (since the search must be incident to arrest the search was illegal)
Concurring opinion by Justice McComb argues that if the People would argue “imminent destruction of evidence” as the proper exception to the warrant requirement – he would side with the People (even though it appears to be a clear violation of Schmerber).
In the end this case turned on CHP failing to arrest Hawkins. The majority emphasized that “arrest is not a mere formality” and that the People failed to meet their burden of justifying the taking of a blood sample.
In case you were wondering about why the government conceded that consent was not free and voluntarily given: Hawkins was in the hospital on a gurney face down at the time he signed the consent. Also, he was bloodied with blood in his eyes so that he could not see what he was signing. He just regained consciousness and lost his sister. He also did not remember signing the consent or believed he signed a mere authorization for medical treatment.
It is not that uncommon to have an officer come to hospital to demand a blood draw. It is also not that uncommon for a DUI arresting officer to forgot to place a DUI driver under arrest or to arrest him or her at some later point. Occasionally, the blood is simple given to law enforcement without an arrest – a violation of the law that can win your DUI case.
Call our office to talk to experienced drunk driving attorney in Los Angeles. Our direct number is (323) 464-6424. We can help you get your DUI case dismissed (especially if you were not formally arrested).