Wednesday , September 20 2017
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Suppression Of Evidence Following Birchfield

The United States Supreme Court’s recent holding in Birchfield v. North Dakota (2016) ___ U.S. ___ (Docket No. 14-1468) presents some new angles for defending DUI charges in California.
Birchfield holds that in the absence of lawful consent under the Fourth Amendment, the police may not forcibly extract a blood sample from a DUI suspect or threaten a jail sanction in order to coerce consent to blood testing. If they do not obtain free and voluntary consent, they must get a search warrant unless some other exception to the warrant requirement is established. The penalty to law enforcement for violating the Fourth Amendment is exclusion of the evidence obtained from the violation. The tainted evidence is referred to as “fruit of the poisonous tree.”
Breath-alcohol testing is another matter. Once lawfully arrested, the police may administer a breath test without the arrestee’s consent and without a warrant. That’s because breath testing is considered less invasive than a blood extraction. However, breath-alcohol testing requires physical cooperation from the test subject. One must blow into a mouthpiece with sufficient volume and duration for a proper breath sample to be obtained. One who deliberately refuses to cooperate may be criminally sanctioned for it if they are ultimately convicted of the DUI offense, but if their failure is due to “profound intoxication” or injury then a viable defense exists.
Administrative license suspension sanctions may be imposed, but not if the chemical test admonition was defective or given in an unconstitutional manner. For example, if the police advise a motorist that he is subject to a jail sanction for refusing a blood draw, that is arguable grounds for avoiding the refusal sanction.
If you are facing criminal charges or a DMV license suspension action as a result of a DUI arrest in Northern California, consult now with Board Certified DUI Defense Attorney Paul Burglin.

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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