California Court Upholds Warrantless Blood Test

September 28, 2014

In the last year courts have reviewed a litany of DUI cases in Kern County challenging the legality of blood tests done without a warrant or consent in drunk driving cases. This appeals court case is one of the decisions dealing with this very hot topic

Without obtaining a warrant, police Officer Olsen asked a nurse to draw blood from Youn, who had been taken to the hospital after causing an injury traffic accident. Blood tests revealed the presence of methamphetamine and cannabis. Youn’s motion to suppress the blood test evidence was denied and he pled no contest to driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) as well as a drug misdemeanor (Health & Saf. Code, § 11550, subd. (a)). He appealed. Held: Affirmed. Warrantless searches are per se unreasonable under the Fourth Amendment unless an exception, such as exigent circumstances, applies. When Youn’s blood was drawn in October 2011, California cases uniformly interpreted Schmerber v. California (1966) 384 U.S. 757, to allow warrantless blood draws in DUI cases based on the rate of dissipation of intoxicants in the bloodstream, creating an exigent circumstance. In Missouri v. McNeely (2013) 133 S.Ct. 1552, the United States Supreme Court repudiated the California interpretation of Schmerber, finding the natural dissipation rate of intoxicants did not categorically support a finding of exigency sufficient to allow a warrantless blood test. Rather, a totality of the circumstances test must be applied. Although Youn’s case is governed by McNeely, suppression of the blood test results was not required because Officer Olsen acted in “objectively reasonable reliance” on then-binding California cases interpreting Schmerber. CCAP

 

According to one Kern County Attorney, this is case represents one o9f many opinions that show the Courts will go to great lengths to uphold a serious DUI case, particularly when the facts show injury was caused.


I Missed My Court Date, What Now?

September 20, 2014

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Many people traveling through kern county get tickets or citations to appear in court for various offenses such as DUI, speeding ticket or other criminal matters.  It is common for the officer to simply “cite and release” the offender to appear on some future date for arraignment.  But what happens if the person blows the court date and doesn’t show up, either intentionally or inadvertently?

The answer depends on the type of case.  If the offense was for a misdemeanor or felony criminal case then he or she will need to appear and have the warrant recalled or hire a lawyer to file a motion to recall the bench warrant and set a new court date.  This can be done either through the court clerks office or the sheriffs department.  The warrant issued will typically be high in nature, in many cases 25,000 or more, the purpose of which is to ensure the scofflaw will be located and picked up and brought to court rather than again cited and released.

if the case is a traffic ticket such as speeding then the offender can simple call the court if the violation was an infraction and the missed date was within 7 days, to request a new arraignment date.  If the citation was beyond the week time period then the violator will need to appear in person or retain a lawyer to appear and have the failure to appear withdrawn.  Once the appearance is made a trial date can be set and the case can be fully litigated.

The important thing to remember when trying to resolve any case in kern county is that there are 8 courts within the territory.  Many folks think that the only court is the main courthouse in Bakersfield, that is incorrect.  If you were stopped near the grapevine your case will likely be heard in Lamont , if your ticket was issued heading out towards Las Vegas your case will most likely be located in Mojave Court, etc.

There is one last additional method to clear some misdemeanor charges such as drunk driving or DWI.  That is you can post a bail bond after you turn yourself in to the jail.  This method is not preferred because most often an attorney can secure a release on OR, meaning you do not have to pay the additional money for the bond.


When Is Failure To Blow A Refusal

September 17, 2014

California law dictates that anyone arrested for dui must submit to and complete a test upon request of a peace officer.  In kern county most cops will become very impatient when a subject does not blow hard enough into the machine.  The officer will quickly end the process and mark the person down as a refusal and take their license, but is it legally a refusal?  The answer depends largely upon the actions of the arresting officer and whether he complies with his duties after a failed breath test attempt.

  1. The law requires that a suspect be admonished about their requirements.  The officer must advise the person 3 things.
  2. The officer must tell the person they will lose their license for up to 3 years
  3. The officer must tell the individual that if they cannot complete their chosen test they must complete the remaining test or be deemed a refusal
  4. The officer must tell the a DUI suspect that they do not gave the right to speak to an attorney before deciding which test to take.

 


Understanding Your Right To Choose Breath Or Blood

September 17, 2014

In Kern County, as is the case throughout California, a person arrested for DUI has the right to take either a breath test or a blood test upon request by a peace officer.  There are limitations to this right and it is important to understand the nuances of the law.

First, if there is only one type of test available such as is the case when there is a breakdown of equipment, then only the remaining test is the option.  For example, if the breath machine is malfunctioning or the subject cannot produce sufficient breath to capture a sample then blood is the only option.

When a person is a hemophiliac and cannot submit to a blood test then breath is the only option.  Interestingly, a person does have a right to a urine test at their own expense if they choose breath but want a sample to retest later.  In these cases, the officer must advise the subject that the cost of the test will be billed to them.  Failure to advise a suspect of this right can be used by an attorney later in court.