Court Allows DUI Conviction To Stand Despite Constitutional Violation


Last year the US Supreme Court handed down a decision that would forever change DUI cases in Kern County and everywhere else in the nation.  The McNeely case announced that if a police officer could not obtain consent to submit to a blood test from a suspected drunk driver the officer must obtain a search warrant from a Judge and cannot force a blood withdrawal.  Many Judges threw out cases where the rule was not followed, in fact Bakersfield DUI Attorney Bruce Blythe personally had a case dismissed when a CHP officer ignored a client’s refusal and forced a blood sample over his objection.

In this recent case, the Appeals Court went the other way and declined to dismiss a drunk driving case where the cop clearly violated the Constitution.  Here are the facts:

A CHP officer arrested Rossetti for driving under the influence but he refused to take a breath test or consent to a blood draw. Without a warrant, officers restrained him and a phlebotomist drew his blood, which showed he had a blood-alcohol level above the legal limit. The trial court denied Rossetti’s motion to suppress the blood test. He pled no contest to driving with .08 percent or higher blood-alcohol content and admitted prior DUI convictions. On appeal, Rossetti relied on McNeely, which was decided after the warrantless blood draw in his case, to challenge the denial of his motion to suppress.

The Court’s Decision: Affirmed. Prior to McNeely, California precedent interpreted Schmerber v. California (1966) 384 U.S. 757, to permit warrantless blood draws of a suspect arrested for drunk driving due to the exigency of the loss of incriminating evidence. McNeely repudiated this interpretation of Schmerber, holding that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency in every DUI case. Instead, every case involving a warrantless blood draw must be examined on its own facts to determine whether exigent circumstances existed and the prosecution must prove there was a “compelling need for official action and no time to secure a warrant.” Although the Supreme Court’s new interpretation of the federal constitution must generally be given retroactive application to pending cases, suppression was not required in this case because the officer acted in good faith reliance on California precedent, which permitted the warrantless blood draw.

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