Policy Text
TOM DaRé , CHIEF OF POLICE
Professional Standards Division NUMBER: 2021 -12
ISSUED: September 22 , 2021
DUI LAW REFRESHER
The purpose of this training bulletin is to highlight various laws regarding DUI related arrests and the conditions that shall
be met in order to obtain a warrantless blood sample for evidentiary purposes. In general, consent shall be obtained from
an arrestee prior to officers obtaining a blood sample following a l awful arrest. Over the past several years, the courts
have argued and decided on what is reasonable and what constitutes “exigency” in terms of the collection of blood
without consent. The exceptions to a McNeely warrant will be discussed in further here.
CVC 23612(a ) (5) (Implied Consent Law) - A person who is unconscious or otherwise in a condition rendering him
or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be
administered whether or not the person is told that his or her failure to submit to, or the non -completion of, the
test or tests will result in the suspension or revocation of hi s or her privilege to operate a motor vehicle. A person
who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the
direction of a peace officer.
The U.S. Supreme Court in Mitchell (2019) 139 S.Ct. 2525 - validated taking a blood sample from an unconscious
driver on the ground that a warrantless blood draw is "generally" permissible under the exigent circumstances
exception. Unfortunately, Mitchell does not provide absolute authority in each and every case. Rather, the
opinion states the "exigent -circumstance rule almost always permits a blood test without a warrant."
Probation/ Parole (With Search and Seizure )- Jones (2014) 231 Cal.App.4th 1257 - Jones was a DUI suspect on
PRCS and supervised by Solano County Probation. After he was arrested for the DUI, he refused to provide a
breath sample and the arresting officers obtained a warrantless blood sample. The appellate court upheld the
nonconsensual bl ood draw. It found that Jones's PRCS search condition authorized the blood draw without the
necessity of a warrant and held that a warrantless blood draw is within the scope of a search condition of an
offender on either PRCS, parole, or searchable probati on. It was sufficient that the officers were aware of Jones's
PRCS status because PRCS, like parole, has a mandatory search condition. A probationer with a search condition
would also be subject to a warrantless blood draw following a valid DUI arrest if o fficers were aware of the search
condition prior to the warrantless search. TRAINING BULLETIN
Exigent C ircumstances / Delay in Application P rocess : Example - Injury vehicle collision/ combative suspect -
People V. Toure, 232 Cal. App. 4th 1096 (2015) - Affirmed a trail court findings of exigent circumstances for a
warrantless blood draw with the following facts:
- Semi -truck injury collision that took time to investigate.
- Defendant violent, combative, and resistant both at collision scene and at CHP offic e (kicking, spitting, and
yelling obscenities).
- Defendant non -cooperative refused to answer questions about drinking pattern and refusing FST’s.
- Defendant refused chemical test after implied consent admonition given.
- Two hours had already passed.
In regards to the McNeely decision, each case must be evaluated under the totality of circumstances to determine
if exigent circumstances excuse the warrant requirement. The prior rule was that officers could rely on a per
se exigency when faced with the met abolization of blood alcohol levels, but now there must be facts supporting
the inability to obtain a warrant before the evidence is destroyed. Although the opinion does not delineate the
type of circumstances that would prevent obtaining a timely warrant , the majority opinion hints at the
unavailability of a magistrate to sign the warrant or the higher priorities such as attending a traffic accident with
injuries.
Additionally, the courts have agreed that there are c ertain exceptions to the warrant requir ements for warrantless
blood samples. McNeely warrants are somewhat easy to obtain and can be finished from beginning to end in
approximately 30 minutes. The information for obtaining these warrants is located in the Public Drive in the DUI
warrants folde r.
If a warrant is not used to obtain a nonconsensual blood test, prosecutors will be assisted if you include in your
report all the reasons why it was not feasible to obtain a warrant in sufficient time to safely preserve the
chemical evidence dissipating in an arrestee's blood, including the difficulty in your particular jurisdiction, if
any, in promptly obtaining a warrant.
IF YOU HAVE ANY QUESTIONS PERTAINING TO THIS TRAIN ING BULLETIN, PLEASE CONTACT THE NTU FOR
ASSISTANCE.
COMPLETED BY: Jeremy Morse Summary:
In closing, there are certain situations within a DUI investigation that do not require a warrant be
obtained if consent has not been given by the DUI arrestee for a blood sample. Incidents involving
incoherent/ unconscious subjects due to their intoxication or injuries sustained from a collision
requiring immediate medical attention. Delays from traffic collision investigations requiring
extensive investigation on scene with minimal officers