California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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Warrant » Can the Cops Force Me to Submit to a DUI Blood Draw Without a Warrant? » Can the Cops Force Me to Submit to a DUI Blood Draw Without a Warrant?
A relatively new California law involving forced blood draws, in the context of DUI cases, states that no warrant is required for the draw when:
This law was established in 2018 in the California court case of People v. Gutierrez, 2018 S.O.S. 4910.
Prior to this case, the law stated that while a breath test after a DUI arrest does not require a warrant, a warrant is still required for a blood draw.
Note that there are three other scenarios in which police can require a person to take a blood test in California. These are when there is:
Also note that, under California’s implied consent law, a warrant is not required for an officer to test a driver’s BAC via a breath test following a lawful DUI arrest.
California law now states that, in the context of a DUI case, no warrant is required for a blood draw when:
The key here is that the suspect must be given the option of both the blood test and a breath test.
This law was established in 2018 in the California court case of People v. Gutierrez, 2018 S.O.S. 4910. Prior to this case, the law stated that while a breath test after a DUI arrest does not require a warrant, a warrant is still required for a blood draw.
In People v. Gutierrez, police officers found the defendant sleeping in his parked car and eventually arrested the man for driving under the influence. The police then informed him that the law required him to submit to a blood or breath test. Gutierrez choose the blood test.
The court stated that one of the key facts was that Gutierrez was given the option of the two tests. It stated:
“this element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.”
There are three conditions in which police can require a person to take a blood test. These are when there is:
As to the second condition, a DUI becomes a felony when:
As to the third condition, an officer can require a driver to submit to a DUI blood test if he has a clear indication that it would show the presence of drugs.
An officer may gain a “clear indication” via:
A warrant is not required to have a person give a breath test following a lawful arrest for DUI.
California’s implied consent law makes it mandatory for any driver in the State, who has been lawfully arrested for DUI, to submit to a breath test to determine his/her blood alcohol concentration.
A driver that violates this law (i.e., refuses to take a breath test) will receive certain penalties. These include:
A motorist may refuse to take a breath test prior to being arrested for DUI.
After a driver is pulled over for DUI, but before he is arrested, the driver may be asked to take a hand-held preliminary alcohol screening (PAS) breath test.
This is basically a roadside breath test. And, it is just another field sobriety test (FST) – like walking in a straight line or bringing a finger to the nose. An FST simply helps police decide whether or not to arrest someone for DUI.
There is no penalty for refusing to take a PAS breath test unless a person is either:
Further, as long as a person is at least 21 and not on DUI probation, refusal to take a PAS test may not be admitted at trial as evidence of guilt.
Note though that if a driver does agree to a PAS test, the results of the test can be used to help convict him of a DUI.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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