• Warrantless DUI Blood Draws of an Unconscious Hospitalized Suspect
• Exigent Circumstances Justifying a Warrantless Blood Draw

The Fourth Amendment “almost always” permits a warrantless blood draw from an unconscious DUI suspect who is hospitalized. An unconscious DUI suspect who is hospitalized and about to go into surgery is a sufficient exigency allowing for a warrantless blood draw.

On October 27, 2017, Defendant Alberic Roland Nault had a dilemma.  His pickup truck had been impounded a couple of months earlier when last busted for DUI (his 4th since 2000), and he wanted it back.  The problem was that the tow yard where defendant’s pickup was being held wouldn’t let him have the truck as long as his driver’s license was still suspended.  So he paid a stranger $100 to show the tow yard employees a valid license to get the truck out of hock.  Somehow this ruse worked, and defendant drove away in his vehicle.  Celebrating his cleverness, defendant got wasted once again.  And despite having previously been subjected by various sentencing courts to a “morgue program designed to snap him into focus,” as well as two other alcohol awareness programs, defendant decided to go for a drive.  At 7:00 p.m. that evening, defendant found himself on a dark two-lane highway, stuck behind an “18-wheeler” truck.  The 18-wheeler, being driven by Laurentino Doval Carlos, was doing only about 50 mph in a 55 mph zone, holding defendant back.  So defendant tried to pass him, revving his pickup to about 70 mph as he pulled around the truck. Despite Doval slowing his truck so that defendant could make the pass, defendant hit head-on an approaching Honda Civic.  Doval stopped and attempted to assist the drivers of both vehicles which, by then, were on fire.  He found the female driver of the Honda to be deceased; “crush(ed) . . . to death” by the force of the impact.  Doval was able to rescue defendant, however, despite defendant being seriously injured.  Doval later testified to smelling a strong odor of alcohol on defendant’s breath.  California Highway Patrol Officer Carlos Burgos-Lopez arrived at the scene at 7:28 p.m., finding a semi-conscious defendant being treated in the back of an ambulance.  Noting that defendant’s pants were soaked with alcohol, the officer asked him what he had been drinking.  Defendant simply responded in a “thick” voice; “Beer.” Defendant’s injuries prevented Officer Burgos-Lopez from obtaining a complete statement as he was put into a helicopter for emergency evacuation.  The Officer did note at the scene, however, that while the skid marks from the Honda were evident, there were none for defendant’s pickup truck.  CHP Officer Riley Beckinger met an unconscious defendant at the hospital where he also noted the strong odor of alcohol.  Told by the hospital staff that they were taking defendant into surgery shortly, Officer Beckinger had the nurse draw two vials of blood from defendant, promising to obtain a search warrant after the fact (which was in fact later done).  The blood was drawn at 9:11 and 9:12 p.m., two hours and eleven minutes after the crash.  Upon analysis of that blood, it was determined that defendant’s blood-alcohol level was 0.14%; almost twice the legal limit.  Charged in state court with second degree murder (per P.C. § 187(a)), gross vehicular manslaughter while intoxicated (P.C. § 191.5(a)), and driving a vehicle with a suspended license (V.C. § 14601.5(a) & (d)(2)), with four prior DUI convictions also alleged, defendant’s pre-trial motion to suppress the blood-alcohol results was denied.  Convicted by a jury of all the above, and after admitting the prior convictions, defendant was sentenced to state prison for 15-years-to-life (plus a year in county jail).  He appealed.

The Second District Court of Appeal (Div. 8) affirmed (remanding the case for the sole purpose of correcting some sentencing errors that did not affect the 15-years-to-life determination).  The issue on appeal, as it was in the trial court, was the lawfulness of extracting a blood sample without the benefit of a search warrant.  (The fact that a search warrant was obtained after the fact was irrelevant, and not discussed.). The basic rules are well established:  A blood draw is a “search,” for purposes of the Fourth Amendment.  (Birchfield v. North Dakota (2016) 136 S.Ct 2160, 2173.)  Like with any other search, a warrantless blood draw is presumed unreasonable unless justified by a recognized exception. (Missouri v. McNeely (2013) 569 U.S. 141, 148.)  “Exigent circumstances” is a recognized exception to the search warrant requirement.  (Id., at pp. 148-149.)  An exigency exists whenever blood-alcohol evidence is dissipating, as it always is, and a pressing health, safety, or law enforcement need takes priority over a warrant application. (Mitchell v. Wisconsin (2019) 139 S.Ct. 2525, 2537; and Schmerber v. California (1966) 384 U.S. 757, 770–771.) However, the fact the human body continuously metabolizes alcohol is not enough by itself to excuse the failure to obtain a search warrant. (Mitchell, supra, at 2537.) There must also be a pressing law enforcement need.  Per Mitchell, The Fourth Amendment “almost always” permits a warrantless blood test when police officers do not have a reasonable opportunity for a breath test before an unconscious suspect is hospitalized.  (Mitchell, supra, at 2539.)  Unique to this particular case is the fact that by the time law enforcement had the opportunity to obtain a blood sample (a breath sample obviously being impractical at that time), defendant was unconscious and about to head into surgery.  Over two hours had already passed since the fatal collision, meaning that the relevance of defendant’s blood-alcohol level was diminishing with each passing minute.  Waiting for a search warrant that could not be executed until defendant was out of surgery was not a viable option if a valid blood-alcohol result was to be obtained.  For this reason, it was held that under the circumstances of this case, the general rule applied; i.e., that a driver suspected of being under the influence of alcohol and who is unconscious, may be subjected to a warrantless blood draw without offending the Fourth Amendment.  Noting that defendant created the exigency in this case by having “injured himself badly,” requiring hospitalization and immediate surgery, thus making a breath test impractical and no time left to obtain a search warrant for a blood draw, the Court held here that the general rule applied.  Therefore, defendant’s motion to suppress the results of his blood test was properly denied by the trial court.

Mitchell v. Wisconsin (or at least a plurality opinion in Mitchell) held that a warrantless blood draw may be made “almost always” whenever a breath test wasn’t practical because “the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility.” (139 S.Ct. at p. 2539.)  The fact that defendant here was also about to disappear into the operating room was really just icing on the cake, insuring that the general rule applied.  But note that the Supreme Court in Mitchell did not say that the hospitalization of an unconscious DUI suspect always excuses the lack of a warrant.  Exceptions may apply, depending upon the circumstances.  You have to know that just about every lower court in the nation is greedily salivating for the opportunity to be the first to find an exception to this rule.  You don’t want that case to be yours, with your name plastered all over it for everyone to see how you screwed up.  The defendant here, being hospitalized, unconscious, and heading into surgery, saved this case.  But you won’t always have that combination of circumstances.  So you have to continue to be ready in every case to explain why, in the case at hand, there was no opportunity to get a search warrant without compromising the validity of your suspect’s blood-alcohol reading.  Note also the fact that telephonic search warrants are generally obtainable—often in less than an hour—makes it just that much more likely that your next case might well be that exception.  Mitchell mentioned this shortcut to obtaining warrants, but believed that even with such technology, “the time required has shrunk, but it has not disappeared.”  (Id., at p. 2539.)  The dissent in Mitchell, on the other hand, noted that the availability of “telephonic or radio communication, electronic communication such as e-mail, and video conferencing” (Id., at p. 2548.) might (in the right circumstances) provide an exception to Mitchell’s “almost always” general rule. It is suggested, therefore, that you be ready to rebut a defense argument that the availability of the telephonic search warrant procedure was not enough take your case out of the “almost always” general rule.