Legality of Blood Draw in DUI Defense in Los Angeles

February 16, 2016
DUI Blood Test

DUI Blood Test is a hot area of litigation in courts throughout the country.  In Schmerber v. California, a 1966 decision by the Supreme Court, the court decided the constitutional legality of a DUI test.  

What makes a DUI Blood Test illegal even when you agree to the blood draw?

We provide a guide to the hearing that can be held to suppress the DUI blood test results and to get a dismissal of your DUI case.

If you were arrested for a DUI, the police most likely tried to get a blood or a breath test to see how much alcohol you have in your blood.  The Legal Blood Alcohol Level in California is below .08% BAC.  Thus, a person who is arrested for a DUI is usually given a choice, to agree to do a DUI blood test or a DUI breath test.  If you agree to the test and the results are at or above the legal limit, the prosecutor most likely will file DUI criminal charges against you.  But, a DUI defense attorney, can challenge a DUI arrest by attacking the blood test using search and seizure arguments.  This process starts with a DUI defense attorney filing a motion in court that is known as a “Search and Seizure motion or  California Penal Code 1538.5 motion.  Once the motion is filed, the burden switches to the government to show that the search of your body (taking blood test) is justified.

In 1966 US Supreme Court opinion in Schmerber v. California said that the police can take a DUI blood test to determine the level of alcohol because “it carries little or no risk of trauma or pain”.  However, in that case (Schmerber), there was a car accident.  This allowed the court to justify the urgency in drawing blood and permitted exceptions from the warrant requirement.  Importantly, the Supreme Court said that taking Schmerber’s blood was ok because the DUI blood was done in a medically acceptable manner by a physician in a hospital“.  The court said that if the blood draw would be done by not medical professionals or not at a hospital then the taking of blood would be illegal because of an increased level of infection and pain.  So, if the DUI blood test was not done according to the accepted medical practices or if you suffered a lot of trauma and pain, your DUI case can be dismissed because it violated your rights under the 4th amendment even in 1966.

Here is a quote from Schmerber:

“Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.”

California further established the standard for the legality of a DUI blood test according to permissible medical practices.  For example, California law permits blood to be drawn in a jail station however, under People v. Cuevas, a 2013 decision, the DUI blood test needs to be done according to the following standards:

(1) A police officer testifies that he observes a DUI blood test draw.

(2) The police officer testifies that he believed the person who took the DUI blood test to be a qualified phlebotomist or a blood technician.

(3) The police officer testifies that you did not exhibit any pain or discomfort.

(4) The police officer testifies that the blood draw was done in a cooperative manner

(5) The police officer testifies that the needle used for the DUI blood test came from a sealed package.

(6) The police officer testifies that the area of needle insertion was cleaned before the DUI blood test needle insertion.

(7) Lastly, the police officer testified that the area was bandaged after the blood extraction.

If the police officer was not able to testify to these elements of the blood draw, the results of the DUI blood test can be thrown out.  More importantly, because the burden to show compliance with the 4th amendment is on the government, if the prosecutor forgets to ask the above questions, the defense can simply not ask anything on the cross and win the motion.

Under more recent decisions, the burden on the police to prove evidence of lack of “acceptable medical practices” argument works only if there is no warrant.  For a warrant, the burden shifts to the defense, and thus an expert is needed to testify to a “lack of acceptable medical practices”.

Supreme Court Decisions

Mitchell v. Wisconsin: This is a very important case decided in June 2019 by the United States Supreme Court.   The court decision is split (like so many others) with 5 judges (Alito, Roberts, Kavanaugh, Breyer, Thomas) voting one way and  4 (Sotomayor, Ginsburg, Kagan, Gorsuch) voting another way.

Facts:  Police were notified that Mitchell, who appeared very drunk, drove away in a van.  A police officer found Mitchell near a lake and had him submit to a PAS test with a result of .24% BAC.  Mitchell was arrested for a DUI and taken to a police station for a DUI breath test.  However, by the time he got to the police station, he became unconscious from alcohol intoxication and could not submit to a DUI breath test.  Mitchell was therefore taken to a hospital for treatment and there, a DUI police arresting officer asked the hospital personnel to draw blood from Mitchell.  The results of that blood test were .022 % BAC and it was used to prosecute Mitchell for a DUI.

Holding: A suspected DUI driver who is unconscious and therefore can not submit to a DUI breath test can be subjected to a DUI blood draw without a warrant except when he can demonstrate that his blood would not be taken by the hospital and there was no DUI accident for the police to deal with.

Silver Lining:  There are two.  (1) the USSC court did not give a blank rule but held that blood can be “almost always” drawn without a warrant.  (2) The USSC could have but refused to hold that implied consent is sufficient for a warrantless blood draw.  Thus it reaffirmed the previous rule, in a way, confirming that actual consent is needed for a warrantless DUI blood draw (but not for a DUI breath test).

Rationale: The court gives 2: (1) an unconscious DUI driver that is encountered by police is likely to be taken to an emergency room and therefore will have his blood drawn there anyway; or (2) the situations that are encountered by DUI police officers most frequently are at a location of an accident and there the police is too busy to obtain a warrant for a blood draw when they have more important things to do, such as to prevent other accidents or to attend to injured drivers or passengers.

Arguments to make that warrant should have been obtained: In a situation where a suspected DUI driver is unconscious for another reason or in a situation where a suspected DUI driver is not taken to an emergency room, the rationale for the court’s decision is not there and therefore a warrant would be required under the exception to Mitchell v. Wisconsin (the “almost always” scenario).

The argument to support a warrantless blood test of an unconscious DUI suspected driver: (1) this was the actual question posed by the Wisconsin Supreme Court and (2) Mitchell was not found at an accident site but instead was found near a lake after he was seen driving a van.  The court permitted the warrantless blood draw because Mitchel was taken to a hospital where his blood was presumably drawn anyway for the purpose of diagnosis and treatment unrelated to law enforcement reasons.

Thus (2nd holding): When a suspected DUI driver is not taken to a hospital for other then law enforcemet blood draw and when a suspected DUI driver is not found at an accident scene, the police need to obtain a warrant. 

Relevant Notes and Cases: Judge Alito (he wrote the opinion) notes several past USSC decisions dealing with similar situations.

(1) Schmerber – permitted warrantless DUI blood draw because there was an accident in Schmerber

(2) McNeely – did not permit warrantless blood draw holding that natural dissipation of alcohol is not an exigent circumstance.

(3) Birchfield – Permitted warrantless DUI breath test but not warrantless DUI blood test in a garden variety DUI because of privacy concerns (a blood draw is much more intrusive).

(4) Here (Mitchell) – permitted a warrantless blood draw of an unconscious suspected DUI driver only because the blood would have been drawn anyway by the hospital for treatment purposes.

Unanswered questions: if a conscious driver is taken to a hospital and refuses a blood test there, can the police force it without a warrant?  I think not based on McNeely!

Rule: I think the rule can be summarized as such: “A warrantless DUI breath test is always permissible but DUI blood test is only permissible when there is a DUI accident or when a DUI suspected driver is taken to a hospital anyway (and not for a blood test purpose)“.


In this 1998 opinion, Irvine police arrested Mr. Nelson for a DUI.  The arresting officer asked Mr. Nelson if he had a problem with taking a blood test.  Mr. Nelson said no and agreed to take a blood test.  He was not told by the police officer of his right to choose between blood, breath, and urine, which is a violation of California Vehicle Code section 23157(a)(1).  The blood test showed the presence of alcohol and Mr. Nelson was prosecuted for a DUI in Orange County.  Later, Mr. Nelson was convicted and appealed his conviction arguing that if he would be told of his rights to submit a breath test or urine test, he would have chosen them instead of the blood test.  The court agreed.  So under Nelson v. Irine, if an officer forgets to offer a breath or urine test after a DUI arrest, the blood test can be excluded.

EXAMPLE: in a recent case we observed how during a blood draw and after a warrant was obtained, the blood draw person drew blood while our client’s arm was not supported by anything. Such blood draw creates a risk of injury to the person whose blood is drawn. This case has not been litigated yet, however, when it is, the motion to suppress blood results should be granted by the court, which should result in the suppression of blood results and dismissal of Los Angeles DUI case.

Los Angeles DUI attorney is here to help you win your DUI case.  Our office near is Van Nuys DUI court and near Metropolitan DUI court allows us to interact with local prosecutors daily and get the best results for your Los Angeles DUI case.  We are ready to answer any questions you have, just call us.  We provide quality defense at an affordable price and will not refuse any reasonable payment plan.  Call us at (818) 921 7744 anytime to talk to one of the best Los Angeles DUI attorneys directly.

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