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.
