Monday, April 22, 2024

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California Highway Patrol Will Stop Forced Blood Draws In Wake Of Missouri v. McNeely

In Missouri v. McNeely, the United States Supreme Court rejected the government’s argument that the possible dissipation of alcohol in a DUI suspect’s blood  will always create an exigent circumstance justifying a warrantless blood draw.  In an 8-1 decision, the Court held that the 1966 decision Schmerber v. California did not establish a per se exception to the requirement of a search warrant to forcibly extract blood from an unwilling DUI subject.  The Court ruled that while the dissipation of alcohol is a factor, courts should address the question of exigency on a case by case basis looking at the totality of the circumstances.  The Justices reaffirmed the importance of warrants even in routine DUI cases and noted that improvement in communications permits law enforcement to obtain warrants without jeopardizing blood alcohol evidence.  The California Supreme Court has interpreted Schmerber  in the broadest sense and has used the dissipation of alcohol to not only permit  warrantless blood draws in all DUI refusal cases but also to justify warrantless entries into the homes of suspected DUI drivers.  NcNeely is bound to have a dramatic impact on DUI cases in California and in Orange County in particular where many police agencies resort to warrantless blood draws in every refusal case.  The California Highway Patrol was quick to respond to the decision in McNeely and announced that they would suspend non-consensual blood testing in misdemeanor DUI cases and would obtain search warrants for blood in felony cases unless there are factor which create an exigency beyond the mere dissipation of alcohol.  Having an experienced DUI lawyer in Orange County can help you raise these important challenges in your DUI case.  For more information, go to

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Barry Simons

Barry Simons

Barry is a nationally known expert in DUI Defense who has spent over 40 years fighting for drivers' rights in Southern California Courts. He is a Founding Member, Fellow and the Former Dean of the National College for DUI Defense. He is one of only 5 attorneys in the State of California to hold Board Certification in DUI Defense under standards certified by the American Bar Association.

2 Responses

  1. Does this ruling have any barring if you did a blood test under the warnings from the officer that you “have to submit because of the implied consent” and not notifying you of your constitutional right to refuse even with the “implied consent” rule from the DMV?

    1. An important question and one which will provoke a great amount of litigation. The Prosecution will likely argue that your consent trumps the need for a warrant. But, the implied consent admonitions in the state of California expressly provide that the licensee be warned that a failure to “consent” will result in a lengthy license suspension, jail time and an inference at trial that the refusal demonstrates a consciousness of guilt. Is this a consent that is freely, knowingly and voluntarily given or, is it submission to authority to avoid significant penal consequences ? Well trained and experienced lawyers who specialize in DUI defense will argue that this statutorily compelled consent does not amount to consent for the purpose of 4th Amendment analysis. McNeely will not apply in cases where the evidence suggests that the arrestee genuinely chose the blood test over the breath test.

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