Can Police in California take Forced DUI Blood Draws?

You are driving home from drinks with friends when you are stopped by the police. After you fail field sobriety tests, the officer asks you to agree to a breath test to measure your blood alcohol concentration (BAC). You decline.

California Field Sobriety Test

You are placed under arrest and taken to a nearby hospital. The officer asks you to agree to a blood test, telling you that in California, refusal to submit to a chemical blood or breath test can result in the automatic loss of your driver’s license for a minimum of one (1) year.

You again say no.

Can the officer order a lab technician to take your blood without your consent? Can the police literally strap you down and forcefully take a blood draw?

Not without a warrant, the United States Supreme Court held in Missouri v. McNeely, unless there are specific exigencies that make obtaining a warrant impractical.

Otherwise, taking the blood of someone suspected of a DUI, without a warrant, may constitute a violation of that person’s Fourth Amendment right to be free of unreasonable searches and seizures.

The warrant requirement is subject to exceptions, the court noted. One well-recognized exception is when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.

But just because motorists have a diminished expectation of privacy in their cars, the court said, that does not diminish their privacy interest in preventing a government agent from piercing their skin. In routine DUI cases, police may need to seek a warrant.

In the case before the court, the defendant had been stopped by a Missouri police officer for speeding and crossing the center line. The officer noticed several signs that the defendant was intoxicated, including bloodshot eyes, slurred speech, and the smell of alcohol on his breath.

The defendant declined to take a breath test to measure his BAC. He was arrested and taken to a hospital for blood testing, which he also refused.

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Distracted Driving Accidents May Result in Vehicular Manslaughter Charges in California

In California, driving under the influence is a crime. Using a handheld cell phone, or texting while driving, on the other hand, is a mere traffic violation under Penal Code 23123, also known as California’s “distracted driving” law. But there is little difference between a DUI and distracted driving if you injure someone as a result. And if you kill someone while using a handheld phone, you could face charges under Penal Code 192(c) PC Vehicular Manslaughter, which makes it a crime for a driver to kill another person by driving in an unlawful way, or in a lawful way that is, nevertheless, dangerous.

California Distracted Driving LawsDistrict attorneys in California have the discretion to prosecute vehicular manslaughter as either a misdemeanor or a felony. If convicted of misdemeanor vehicular manslaughter, you may face up to one year in a county jail. If convicted of felony vehicular manslaughter, you may face two to ten years in state prison.

It happened to a Costa Mesa man in 2008, when a jury found him guilty of vehicular manslaughter with gross negligence after he killed a pedestrian while sending a text message as he was driving. And last month, a Bakersfield woman was arrested and charged with felony vehicular manslaughter for killing three people after she first ran a stop sign, and then a red light, while talking on her cell phone.

According to the California Office of Traffic Safety, texting while driving can delay a driver’s reactions as much as driving with a blood alcohol content (BAC) of .08, the current legal limit. The OTS and the California Highway Patrol report that more than 57,000 California drivers were ticketed for handheld cell phone talking or texting during April’s Distracted Driving Awareness Month.

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.05 BAC as the New Legal Standard?

The National Transportation Safety Board has called on all 50 states to reduce the allowable blood-alcohol concentration by more than a third, to 0.05 percent from 0.08 percent.

California BAC Legal StandardThe recommendation was one of 19 made in a safety report released by the Board Tuesday after a year-long investigation into the problem of substance-impaired driving.

“The research clearly shows that drivers with a BAC above 0.05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured,” NTSB chairperson Deborah A.P. Hersman said in a press release issued by the agency.

All 50 states and the District of Columbia adopted the 0.08 percent standard in 2000 after then-President Bill Clinton signed a law withholding highway construction money from states that did not agree to the standard. Lowering the allowable BAC to 0.05 would bring the United States in line with over 100 countries that currently have BAC limits of 0.05 or lower.

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Stoned Politics? Senator Correa's SB 289 Zero Tolerance Drugged DUI Law

February 25, 2013

"Driving under the influence of illegal drugs is dangerous and cannot be tolerated. Creating a zero tolerance drugged driving policy will equip law enforcement with the tools needed to keep our communities and roads safe.”

This above quote comes from California State Senator Lou Correa. Mr. Correa is a representative of California Senate District 34, which covers the Orange County cities of Anaheim, Buena Park, Fullerton, Garden Grove, Santa Ana, Stanton and Westminster.

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Safety Checks on Capital Punishment

September 14, 2012

One of the worst fears in the criminal justice system is that a person would be wrongly put to death.

Consequently there are a series of safety checks on capital punishment in California.

One is that in a capital case, the jury must be the one to decide whether the defendant receives the death penalty or life in prison without parole.

Second, the trial judge retains the power to overrule a jury’s decision for death and reduce the sentence to life without parole.

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Destroying Evidence Can Land You in Hot Water

September 13, 2012

On one hand, criminal defendants bear no affirmative duty to come forward with evidence that would incriminate themselves. It’s the job of cops and prosecutors to find that stuff.

But purposely destroying that evidence is another story. Penal Code 135 - California’s law against destroying evidence - makes it a crime to do so if you know the evidence is the subject of an investigation or legal proceeding. Penal Code 135 is a misdemeanor carrying up to six months of county jail.

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Offering False Evidence is a Bad Idea

September 12, 2012

We all know that it is perjury to give false testimony under oath, a serious crime. What some people don’t realize is that it’s also a crime to present any fictitious evidence in a legal proceeding.

Stated in California Penal Code 132, the crime of offering false evidence makes it illegal to present any false written evidence - if your purpose is to deceive the court into believing it to be true.

In the DUI context, this might include someone submitting false receipts for alcohol - trying to make the court believe you drank less than you really did. Or it could include phony or doctored medical records suggesting you have a health condition that affected your ability to perform the field sobriety tests.

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Police On the Lookout for DUI's On the July 4th Holiday

The July 4th holiday is a time for many to barbeque, light fireworks, and to spend time with their family and friends. However, the July 4th holiday tends to be one of the heaviest days of the year for DUI arrests.

As a result the Los Angeles Police Department (LAPD) will be ramping up DUI sobriety checkpoints and DUI saturation patrols for the July 4th holiday period.

Here are the latest Los Angeles DUI sobriety checkpoints that are scheduled for this week and into the weekend. For more information, you can contact the local law enforcement agency a couple of hours before the reported time to learn the exact locations of some of the more general posts.

Wednesday 7/4
The LAPD will conduct a saturation patrol from noon to 8 p.m. in the Harbor patrol area.

The California Highway Patrol (CHP) will also conduct saturation patrols in the South Los Angeles patrol area, Baldwin Park patrol area, and the Alta Dena patrol area.

Thursday 7/5
The Los Angeles County Sheriff's Department (LASD) will conduct a DUI sobriety checkpoint in Norwalk patrol area.

From 7 p.m. July 5 to 3 a.m. July 6, the LAPD will conduct a DUI sobriety checkpoint in the Olympic patrol area at Vermont Ave. and Sixth St.

Friday 7/6
From 7 p.m. July 6 to 3 a.m. July 7, the LAPD will conduct a DUI sobriety checkpoint in the Southeast patrol area at Rosecrans Ave. and Menlo Ave.

From 7 p.m. July 6 to 3 a.m. July 7, sobriety checkpoints will be operated in the Pacific patrol area at Lincoln Boulevard and Maxella Avenue.

Saturday 7/7
LAPD will operate sobriety checkpoints from 7 p.m. July 7 to 3 a.m. July 8 in the Foothill patrol area at Laurel Canyon Boulevard and Paxton Street.

LAPD will operate sobriety checkpoints from 7 p.m. July 7 to 3 a.m. July 8 in the Mission patrol area, at Roscoe Boulevard and Noble Avenue.

Sunday 7/8
A DUI saturation patrol will be conducted by LAPD from noon to 8 p.m. in the Rampart patrol area.

Civil Compromise in California Hit & Run Cases

If you are charged with a Hit and Run under California Vehicle Code 20002(a), one of the options you should think about having your lawyer pursue is what is known as a "Civil Compromise". A civil compromise allows the parties to agree to dismissal upon monetary compensation for reasonable damages. It is one of the rare situations in which an alleged victim can "drop the charges" against an accused.

I recently employed this strategy in a recent Hit and Run Case out of the West Covina Courthouse. My client had already compensated the other party for her damages. I contacted her and explained the civil compromise arrangement - now that she had been compensated, I asked if she would be willing to dismiss the charges against my client. She was reluctant to do so and wanted to think about it. I informed her that was ok and she could call me back when she had an answer.

I didn't hear from her for a couple of weeks and decided to follow up. I received no call or email in return. At this point I did not want to continue to ask her because I didn't want to seem like I was harassing her. I realized she did not want to cooperate and agree to a dismissal, but I had to think of another way to get this misdemeanor dismissed for my client - Hit and Run is 2 points with the DMV and he needed to avoid those extra points because he drove a lot as part of his job.

My next strategy was to approach the District Attorney with my client's witness statements as well as proof that the alleged victim had been fully compensated and we had attempted to do a civil compromise with her. After some negotiation, he agreed to dismiss the Hit and Run charge against my client and have him plead to an infraction with no DMV points and a small fine. My client was very happy and this definitely suited his situation.

Civil Compromises aren't just available in Vehicle Code 20002(a) Hit and Run Cases, but they are also available in other types of cases such as vandalism and even embezzlement. Even though I was unable to get a straight dismissal for my client, I did not give up and pursued another course of action that still resulted in a dismissal of the misdemeanor.

Exceptions to IID Installation Requirement

If you are convicted of any DUI-related offense in California a judge can order you to install an Interlock Ignition Device (IID) onto your vehicle. IID’s are essentially mini-breathalyzer instruments installed onto your vehicle that prevent your vehicle from operating unless they are given an alcohol-free¬ breath sample.

As of July 2010, every individual convicted of a DUI offense in Los Angeles County is required to install an IID device to their vehicle for a minimum of five months to a maximum of three years.

However, there are certain exceptions to the blanket IID requirement for a DUI conviction in Los Angeles County.

The California State Legislature considers the following valid grounds for granting an exception to the IID requirement:

  • Defendant is an out of state resident and installing an IID would cause undue hardship on the defendant or his or her family;

  • At the time of sentencing, the defendant lives 50 miles or more from the nearest interlock service facility and installing an IID would create an undue hardship on defendant or his or her family;

  • Defendant is sole proprietor of a business that requires two or more vehicles be registered in defendant’s name, in which case an IID need only be installed on one of the vehicles;

  • Defendant provides proof that the vehicle registered in defendant’s name is inoperable and defendant is unable to transfer title of the vehicle;

  • Defendant is required to operate an employer-owned vehicle in the course and scope of his or her employment and thus may operate the vehicle without the installation of an IID. (For example: A UPS delivery truck driver would not be required to install an IID device on the UPS owned delivery truck); and/or

  • The Court determines that the hardship imposed by the installation of the device will far outweigh the likelihood that the defendant will drink and drive again while on court-ordered probation.

While these exceptions do exist, judges are extremely hesitant in relieving those convicted of DUI related offense from the IID requirement. Thus, it is important to consult with an experienced DUI attorney to help you determine whether you qualify under one of the specified exceptions.

Will a California DUI Arrest Trigger Jail Time?

When people get arrested for drunk driving, usually their most immediate and pressing question is whether they will have to do jail time for a California DUI. That is, additional jail time beyond the night they spend in jail upon getting arrested.

The answer is usually no. California law imposes no mandatory jail time for a simple first-time DUI. By this we mean a situation where there are no injuries, no refusal to take a blood or breath test, no young children in the car, and no prior DUI convictions.

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That said, although California law doesn’t impose jail time for a simple first DUI, some county district attorney officers seek jail time nonetheless. Ventura County courts, for example, routinely impose 2 days jail or 5 days work release on every first time DUI. Riverside County courts impose 6 to 10 days jail.

Most counties don’t doll out jail on first time DUI cases, however. Los Angeles county generally doesn’t impose jail time unless, again, there are aggravating circumstances such as those listed above.

The consequences of a DUI conviction are no picnic, to be sure. But luckily most people get a pass on jail time. But just one pass. If they pick up another DUI, some jail time becomes almost certain.

Proposed DUI Bill Threatens to Crack Down on Marijuana Users

A new DUI bill being, introduced by Assembly woman Norma Torres, D-Chino, could bring harsh consequences to marijuana users in California. The bill would criminalize driving with any amount of marijuana in one’s blood or urine.

The controversy around this bill centers around the fact that marijuana compounds can remain detectable in one’s body for up to 30 days from the last use of the substance. This is unlike alcohol, which leaves one’s system at a relatively quick rate.

Supporters of the bill claim it will deter those from driving under the influence of any drug or alcohol.

The use of medicinal marijuana is legal in California. Opponents of the bill state that the bill is discriminatory against marijuana users. A person could theoretically be charged with driving under the influence for the use of marijuana 30 days prior to being stopped for driving under the influence.

Opponents of the bill also claim it would unfairly lower the burden of proof needed to obtain a DUI conviction. The bill would place more emphasis on the blood and urine test results and less emphasis on the demonstrable impairment of the driver.

One thing is for certain; if this bill passes a dramatic increase in DUI arrests in California should be expected.