DUI McNEELY WARRANT (Blood Test)
On April 17, 2013, the United States Supreme Court held in Missouri v. McNeely that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that justifies warrantless, nonconsensual blood testing in DUI investigations. The totality of the circumstances must be considered in each case.
Pursuant to Penal Code section 1524, the Department has authorized the use of the Affidavit in Support of Search Warrant (SH-R-221A). This Affidavit in Support of Search Warrant shall be used for blood draws:
“. . . that constitute evidence that tends to show a violation of Section
23140, 23152, or 23153 of the Vehicle Code and the person from whom
the sample is being sought has refused . . . and the sample will be drawn
from the person in a reasonable, medically approved manner. This
paragraph is not intended to abrogate a court’s mandate to determine the
propriety of the issuance of a search warrant on a case-by-case basis.”
These blood draws shall be in compliance with the Department’s Manual of Policy and Procedures when both requesting and obtaining blood for evidential value. For suspects who refuse a test, deputy personnel shall advise the suspect of section 13353 CVC, Chemical Test Admonition and complete the Department of Motor Vehicle form DL 367 as stated in the Manual of Policy and Procedures section 5-08/010.10, Defendant Refuses All Tests. In addition, Field Operations Directive 92-005, Video Recording of Driving Under the Influence (DUI) Chemical Test Refusals, sets out the procedures for video recording someone who is refusing a DUI chemical test.
If a deputy believes that obtaining blood for evidential value is imperative to the investigation and the suspect is refusing a test, the deputy will obtain a warrant via the Affidavit in Support of Search Warrant (SH-R-221A).
Information regarding the content of this newsletter may be directed to Traffic Services Detail or Field Operations Support Services.
REFERENCES:
California State Legislature SB 717 - http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0701-0750/sb_717_bill_20130920_chaptered.pdf
Penal Code Section 1524
Vehicle Code Section 23140
Vehicle Code Section 23152
Vehicle Code Section 23153
California District Attorneys Association - (www.CDAA.org).
MPP Section 4-07/035.00, Driving Under the Influence
MPP Section 4-19/062.00, Property Damage, Accidental Traffic Collision Connected
MPP Section 5-04/020.25, Completing the Property Label
MPP Section 5-08/010.00, Chemical Test Laws
MPP Section 5-08/010.05, Defendant’s Rights – Driving Under the Influence (DUI)
MPP Section 5-08/010.10, Defendant Refuses All Tests
MPP Section 5-08,010.15, Breath Alcohol Test Administration
MPP Section 5-08/010.20, Blood Tests
MPP Section 5-08/010.25, Urinalysis
MPP Section 5-08/010.27, Release of Blood Alcohol Samples – Urinalysis and Blood
MPP Section 5-08/010.30, Station Commander’s Responsibility
MPP Section 5-08/010.35, Responsibility for Evidence
MPP Section 5-09/130.00, Drug/Driving Under the Influence – Driver’s History Check
FOD 89-02, Use of Checkpoints for Driving Under the Influence/Driver License Enforcement
FOD 92-05, Video Recording of Driving Under the Influence (DUI) Chemical Test Refusals
Newsletter #50, Recent Appellate DUI Ruling
Newsletter #64, The Use of Force in Taking DUI Blood Samples
Newsletter 01-16, Probably Cause and DUI Reporting
Newsletter 08-08, Zero Tolerance Law – 23136 CVC, Use of Alcohol by Drivers Under 21
Behind the Wheel with the Traffic Safety Resource Prosecutor Program, Vol. 18, No. 9 (September 2013), SB 717 – The McNeely Solution