Saturday , December 16 2017
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Suppressing Evidence In Warrantless Blood Draw Cases

Those who have DUI charges pending in California that involve the taking of a blood sample without a warrant or lawful consent should be considering a motion to suppress evidence at the trial court level.  The United States Supreme Court’s recent decision in Missouri v. McNeely overruled several California Court of Appeal decisions that had erroneously interpreted the high Court’s 1966 decision in Schmerber v. California as authorizing warrantless blood draws anytime the police have probable cause to arrest a suspect for driving under the influence and have the blood drawn in a medically approved manner.

Even if your arrest date was prior to the high Court’s decision in McNeely, the blood-alcohol and/or blood-drug evidence is subject to possible suppression.  Prosecutors will argue that such evidence should not be suppressed based on alleged “good faith” of the police who acted under Court of Appeal decisions, but the U.S. Supreme Court has never recognized a “good faith” exception to the exclusionary rule based on state Court of Appeal holdings.  The Davis case relied upon by prosecutors spoke only of federal appellate decisions and state courts of last resort (i.e., the California Supreme Court).

Remember too, that lawful consent to blood testing does not exist where the police threaten a suspect with physical force.  See Bumper v. North Carolina.

 

About Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been in practice for more than 30 years and was formerly a partner at one of the oldest Marin County law firms (Mitchell, Hedin, Breiner, Ehlenbach & Burglin). After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense and co-authors the two-volume treatise, "California Drunk Driving Law." He is on the Board of Regents with the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program.

If you would like to contact the author, please visit: http://www.burglin.com


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