CALIFORNA DUI: PEOPLE V. FISCALINI FORCED BLOOD DRAW CASE
To defend a DUI case in Los Angeles, a DUI defense attorney will often use a “search and seizure” motion to get a dismissal. A Judge can dismiss a case if the DUI police do something improper, such as pull over a person suspected of a DUI without a reason or take blood to analyze for alcohol without permission. Because sometimes blood tests done by police in DUI cases are illegal, dismissing your DUI can be possible. Here we discuss 1 case that is based on a consensual blood draw and was used to prosecute a DUI in California.
A very important court case is the forced blood draw case of People v. Fiscalini. There, in 1989, Alfred Fiscalini drove his car on the wrong side of the street, causing 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. Los Angeles DUI Attorney will help you defend a DUI just like this. After the DUI arrest, the police took a consensual sample of Mr. Fiscalini’s urine but also forced a blood draw from Mr. Fiscalini. The blood was analyzed for alcohol presence with blood alcohol results of .1357%.
In court, Mr. Fiscalini was charged with DUI. He went to trial, lost, and was convicted of the DUI. After the trial, he filed an appeal based on the trial court’s denial of a search and seizure motion to suppress the results of the forced blood draw. Los Angeles DUI Attorney litigates search and seizure motions, known as PC 1538.5 motion in Los Angles in many Los Angles DUI cases he handles.
Fiscalini’s appeal was based on an alleged violation of his right to choose the type of test to be administered 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 case 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 also in the notion that human dignity and privacy are extremely important rights that is protected by the 4th amendment. Fiscalini court quotes another important decision of Schmerber where the Supreme Court said,
“…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.”
Fiscalini court then cites a court case of Winston v. Lee where the evidence consisting of a bullet was suppressed because 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 rationale is perfect for Los Angeles DUI lawyers who defend Los Angeles DUI cases where police rely on other evidence than 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 can be extended to forced blood draws in any case where there are no “special” facts aside from the natural dissipation of alcohol (or maybe any other substance). Arguments extending the application of McNeely to similar cases is best left for your Los Angeles DUI Attorney to argue – to defend you or your loved one against police intrusions. If you are arrested for Alcohol DUI or Marijuana DUI in Los Angles, please call Los Angeles DUI attorneys to help suppress the results of a blood test especially if your blood was forced and thus a violation of McNeely.
Factually, McNeely is simple. He was arrested for 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 obtain a BAC result of .15 percent. The arresting officer never bothered to obtain a warrant.
Justice Sonia Sotomayor concluded in the majority opinion that:
“… 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 true value of McNeely is in its limit on Schmerber, a 1966 decision, to 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.
We believe that McNeely can be used to argue that 40300.5(e) of the 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 Justice Scalia agreed with the majority that the “State” arguments are unpersuasive in part because current technology allows various State jurisdiction permit applications 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.
NOTE: Even with a warrant, your blood could be suppressed. However, you will need an expert for that. The things that will help you suppress blood are:
- The phlebotomist touches something unsanitary after he puts his gloves on (such as carrying a case with the blood draw equipment, putting his arm in his pocket, touching his face/hair, and/or other things (this actually happens in our cases so the examples provided are not random).
- The blood draw is done in a way that increases the chances of injury to a defendant (such as not using support for the arm during the blood draw).
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.
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