"From The Classroom" -  Raymond Hill, Professor Emeritus, Santa Rosa JC

Ray Hill is a retired Police Lieutenant and Professor Emeritus at Santa Rosa Junior College. He has taught in the POST Basic Academy and Advanced Officer Training for 45 years.

   Defendant (who had four prior DUI convictions) attempted to pass an 18-wheel truck on a narrow road, hit an oncoming vehicle, and killed the driver. Defendant was injured, smelled strongly of alcohol, his pants were soaked with alcohol, and while still conscious admitted to drinking beer. The investigating CHP could not administer a PAS test because of the defendant’s injuries and being transferred to a helicopter. He was air-lifted to the hospital. At the hospital, the defendant was unconscious. There was insufficient time to obtain a search warrant because the defendant was going in for surgery. The investigating officer had a nurse draw a blood sample and obtained a warrant after-the-fact and delivered it to the hospital the following morning. Defendant’s BA was .14. He was convicted of Murder 2nd.

    Exigent circumstances exist when blood alcohol evidence is dissipating and a pressing heath, safety or law enforcement need takes precedence over application for a search warrant. The exigency was created by the defendant’s actions and the warrantless blood draw was justified. When a driver is unconscious the Fourth Amendment permits a warrantless blood draw when officers do not have the opportunity for a breath test before hospitalization (Peo. v. Nault, 2DCA, #B306420, 12/21).

   This case is consistent with previous U.S. Supreme Court precedent (Mitchell v. Wisconsin (2019) 139 S. Ct. 252).  Defendant was arrested for DUI. Because he “could hardly stand without the support of two officers” and he was “too lethargic” for a reliable breath test he was taken to a hospital where medical personnel were instructed to perform a blood draw. Defendant’s BAC was .222. No search warrant was obtained. “When police have probable cause to believe a person has committed a drunk driving offense and the driver’s unconsciousness or stupor requires him (her) to be taken to a hospital before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test without offending the Fourth Amendment”.

Note: Advice from “One-Minute Brief”, Los Angeles County District Attorney’s Office, June 2019 - Document in a police report any details of a traffic crash or injuries, any other exigent circumstances (time lapse after arrest, unconsciousness or stupor affecting body movement, or inability to communicate), and any need that was present for a blood sample to be taken for medical diagnostic or treatment purposes.

Stay Safe,

RH

NOTE:  A full case analysis on Peo.v. Nault will be forthcoming by Robert Phillips, Deputy District Attorney (Ret.)