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What is California’s relaxed warrant requirement for forced blood draws?

Posted by Neil Shouse | Jul 24, 2019 | 0 Comments

nurse taking blood sample

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:

  1. an officer directs that a suspect's blood be drawn to measure blood alcohol content (BAC), and
  2. the suspect freely and voluntarily chooses a blood test over 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.

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:

  1. a warrant for the test,
  2. suspicion of a California felony driving under the influence (DUI), and/or
  3. suspicion of driving under the influence of drugs (DUID), per Vehicle Code 23152f and 23152g.

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.

What is the California law regarding relaxed warrant requirements for forced blood draws?

California law now states that, in the context of a DUI case, no warrant is required for a blood draw when:

  1. an officer directs that a suspect's blood be drawn to measure blood alcohol content (BAC), and
  2. the suspect freely and voluntarily chooses a blood test over a breath test.

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.”

Are there other scenarios in which police can require a person to take a blood test?

There are three conditions in which police can require a person to take a blood test. These are when there is:

  1. a warrant for the test,
  2. suspicion of a California felony DUI, and/or
  3. suspicion of DUID.

As to the second condition, a DUI becomes a felony when:

  • it causes injury,
  • the defendant has three or more DUI or wet reckless convictions within the prior 10 years, and
  • the defendant has at least one prior felony DUI conviction.

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 driver's statements,
  • objective symptoms of drug intoxication, and/or
  • physical evidence of drug use.

Is a warrant needed for a breath test after a lawful DUI arrest?

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:

  1. increased penalties in addition to the standard California DUI penalties, and
  2. a mandatory driver's license suspension that occurs regardless of the outcome of a person's DUI case.

Can a driver refuse to take a breath test before a DUI arrest?

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:

  • under the age of 21, or
  • on probation for a prior DUI conviction.

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.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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