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MISSOURI v. MCNEELY

Subsequent to this court case, the CHP and other DUI police enforcement officers can get a warrant to draw blood if a DUI suspect refuses to submit to a blood draw or breath test.  This warrant is known as McNeely Warrant.

This case helps Los Angeles DUI Attorneys to defend warrantless blood draws.  Now your Los Angeles DUI attorney can file a search and seizure motion when the officer forces a blood draw to get blood results suppressed and dismiss your Los Angles criminal case or Los Angeles DUI Case.   In the Supreme Court case of Missouri v. McNeely, the court held that the elimination of alcohol in DUI drivers’ blood is not an exigent circumstance to the warrant requirement.  Before this decision, Los Angeles DUI lawyers were not able to keep blood tests out because California courts permitted warrantless blood draw based on a 1966 case of Schmerber v. California.  where the Supreme Court said that a forced blood draw is permitted because the blood alcohol evidence can dissipate.  The forced blood draw permission is based in part on California Vehicle Code 40300.5(e), which permitted the arrest of Los Angeles DUI drivers to prevent the 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.  Los Angeles DUI Attorney sees Schoefield’s decision as a very unfair interpretation of California Law because a logical interpretation of VC 40300.5 is that unless the person is arrested, he will get rid of the 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!  This absurd reading of the statute (because a person is not really doing anything – in fact, he can be sleeping).  Thankfully, this reading of the statute was overturned by the McNeely court.  With McNeely, Los Angeles DUI lawyers have a powerful weapon in their arsenal of motions.

But even better is McNeely’s overturning of the 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 the loss of blood alcohol evidence.   How California justified such injustice despite requiring police officers to be present for a misdemeanor crime to cause a misdemeanor arrest?  By relying on CVC 40300.5(e) of course!  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 Schofield and Thompson.

Prior to McNeely, in Hopkins v. Bonvicino 573 F.3d 752 (2009), the 9th circuit (relying on Welsh v. Wisconsin (1984) 466 U.S. 740) disallowed police’s warrantless entry into the home to arrest a suspect for 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’s decision; it would be a lot harder to wiggle out of McNeely.

LANGE v. CALIFORNIA

Recently, USSC overturned a denial of a Search and Seizure motion out of Sonoma County in the case of Lange v. California where the CHP followed Mr. Arthur Lange into his garage because he was playing loud music, and honking his horn.  CHP turned his lights prior to entering the garage and charged him with “falling to stop” and also a DUI.  During a search and seizure hearing, Lange’s DUI attorney argued that police cannot follow a person into his garage for a minor violation of a misdemeanor crime.  The California Court of Appeals held that it is always permissible to enter a home of a fleeing suspect for any misdemeanor violation under “exigent circumstance” exception to the warrant requirement.  In this case, failing to stop was a violation of California Vehicle Code 2800(a) “a willful failure to comply with a lawful order signal or direction of a peace officer”.  California Supreme Court declined to take up this case but the United State Court overturned the Court of Appeals’ holding, ruling that misdemeanors are not like felonies and each case needs to be analyzed on its own facts to determine if it is permissible to enter the home after a suspect retreats there.  This rule is different for felonies where it is always permissible to enter the home of a person who is running away.  But in misdemeanors it’s only possible to enter the home under special circumstances, such as preventing the possibility of escape, a good faith exception under Lloyd,  preventing imminent injury, etc.  In the case of Lange, the case was remanded and I think will be dismissed by the trial court.

SUMMARY

The state of the law for DUI blood draw in Californai now such that warrantless entry into the 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 for Los Angeles DUI prosecutions is now limited.  Police officers can still rely on “hot pursuit” for felonies or “welfare check” for misdemeanors to justify such warrantless entry – but even those issues (if in fact present) need to be fully litigated in evidentiary hearings by Los Angeles drunk driving attorneys.  As mentioned above, in Lange, “hot pursuit” cannot be used when police want to say that the reason they needed to enter a home was a misdemeanor crime.  After McNeely, destruction of evidence is not a good reason to force blood.  If your blood is used to prosecute a DUI in Los Angles,  please contact our office for a free case analysis.  Our top Los Angeles DUI attorneys will help you develop strategy to defend your drunk driving case.  Or call us at (818) 921 7744 to talk directly to Los Angeles DUI attorney.

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