Warrantless Blood Draw and Warrantless Entry Home

May 9, 2014

Warrantless Blood DrawMISSOURI v. MCNEELY

Subsequent to this case, CHP and Other DUI police enforcement officers try to get a warrant if a suspect refuses the blood draw/breath test.  This warrant is now called McNeely Warrant.

Undoubtly, this case helped defend warantless blood draws.  Now Los Angeles DUI attorney can file a motion when the officer forces a blood draw.  In the Supreme Court case of Missouri v. McNeely the 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) of 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.

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 enteing 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 minor misdmeanor.  The California Court of Appeals held that it is always permissible to enter a home of a fleeing suspect for any misdmeanor 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 willfull 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, rulling that misdemeanors are not like felonies and each case need to be analyzed on its own facts to determine if it is permissible to enter home after a suspect retreats there.  This rule is different for felonies where it is always permissible to enter home of a person who is runnig away.  But in misdemeanors its only possible to enter home under special circumstances, such as preventing the possibility of escape, a good faith exception under Lloyd,  preventing immenent injury etc.  In case of Lange, the case was remanded and I think will be dismissed by the trial court.

SUMMARY

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 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 metioned above, in Lange, “hot pursuit” cannot be used when police cannot say why they needed to enter a home.  After McNeely, destructio of evidence is not a good reason.  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”

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