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Can the Police Take a Blood Test While I'm Unconscious?

At the beginning of this month, nationwide outrage occurred when a Utah nurse Alex Wubbels was arrested by Salt Lake City police officers after refusing to draw blood from an unconscious patient—who was a victim of a road accident and suffered severe burns—due to hospital policy. The police needed the blood sample to determine whether the patient had illicit substances in his system at the time of the crash.

Feeling agitated by Wubbels refusal, Detective Jeff Payne became agitated and promptly arrested the nurse. The unfortunate incident took place on July 26.

In the end, Wubbels was not charged with the crime. Due to public backlash, however, the Salt Lake City Police Department placed Payne and a second officer on paid administrative leave pending an investigation.

This recent story has sparked the debate on the legality of warrantless blood draws.

Are Warrantless Blood Draws Legal?

In 2016, the Arizona Supreme Court in Arizona ruled that a blood sample cannot be taken without patient consent or a search warrant. The decision was tracked back to a 2013 U.S. Supreme Court ruling on warrantless blood draws from DUI suspects.

The natural metabolism of alcohol does not grant a “per se” exigency which allows a blanket exception to the Fourth Amendment requirement of obtaining a warrant in DUI cases. But that exigency must be determined on a case-by-case basis with the totality of circumstances being considered, although the Court did not provide clear guidelines about when a warrant is necessary.

In 2010, Tyler McNeely was pulled over in Missouri by a law enforcement official who noticed signs of impairment. When McNeely refused a breath test twice, the officer had him transported to a hospital where a blood draw was performed without McNeely’s consent or a warrant. His BAC came back at .154 and he was charged with a DUI. McNeely motioned to have the results suppressed, arguing that the warrantless blood draw was a violation of his Fourth Amendment rights.

What About California?

While many states have dropped portions of their “implied-consent” statutes regarding warrantless blood draws as a result of the McNeely case, this has not happened in California. According to the state’s implied consent rule, a suspected DUI driver automatically gives consent to chemical testing when an officer has probable cause that the driver is under the influence.

In 2015, a California appellate court faced the issue of a warrantless blood draw in People vs. Harris. The appellate panel in the Harris case distinguished the McNeely case because law enforcement had obtained the defendant’s blood sample via actual consent that the court found was voluntarily given following the arresting officer’s advice about the state’s implied consent law. Alas, the Fourth Amendment protections that were addressed in the McNeely case did not apply since the Harris court did not have to determine whether the police acted properly in failing to obtain a warrant before drawing blood.

While it remains to be seen whether California’s implied consent statute will stand up as true consent under the Fourth Amendment, defense attorneys will have to focus on the validity of an arrest and keep pushing for clarity on the issue of consent regarding warrantless BAC testing.

If you were recently arrested for a DUI in Ventura County, contact The Law Offices of Robert F. Sommers and schedule a free consultation today.