Metropolitan News-Enterprise


Wednesday, October 3, 2018


Page 1


Court of Appeal:

Blood of DUI Suspect May Be Drawn Without Warrant Where Driver Chooses That Test


By a MetNews Staff Writer


The United States Supreme Court’s 2016 decision in Birchfield v. North Dakota, which holds that breath tests of suspected drunk drivers require no warrant but blood tests do, does not require exclusion of the results of a warrantless blood draw where the defendant opted for that alternative, the First District Court of Appeal held yesterday.

The opinion by Justice Alison M. Tucher of Div. Four affirms a decision of the Contra Costa Superior Court Appellate Division which reversed the granting of a suppression motion. The defendant, Elio Gutierrez, charged with driving under the influence, insisted that under Birchfield, a blood test may not be administered to determine blood alcohol content absent a warrant.

In Birchfield, Justice Samuel Alito wrote for the majority in saying that “[t]he physical intrusion” inherent in breath tests “is almost negligible” given that there is no piercing of the skin, merely an exhaling of air into a mouthpiece. He continued:

“The same cannot be said about blood tests. They ‘require piercing the skin’ and extract a part of the subject’s body,…and thus are significantly more intrusive than blowing into a tube.”

Offering Alternative

Rejecting Gutierrez’s interpretation of Birchfield, Tucher said:

 “If the state can lawfully require a DUI suspect to take a breath test—and Birchfield says that it can—then surely the state can lawfully require the suspect to take that same breath test or an alternative if he prefers it. That the state cannot compel a warrantless blood test does not mean that it cannot offer one as an alternative to the breath test that it clearly can compel.”

The fact that the suspect has chosen a blood test “is dispositive,” she declared.

“By opting for the more intrusive procedure, Gutierrez effectively volunteered for whatever additional intrusion a blood test involves, over and above the intrusion inherent in a breath test,” Tucher wrote. “For this reason, a suspect who opts for a blood test may be said to consent to the additional intrusion the test entails.”

The case is People v. Gutierrez, A153419.

Uncertainty Expressed

Last year, the Fourth District’s Div. Two, in Espinoza v. Shiomoto, expressed uncertainty as to whether Birchfield would require a search warrant where a suspect opted for a blood test over a breath test. There, a drunk driving suspect, Bernice Espinoza, told a California Highway Patrol officer that she was a Riverside County public defender and knew her rights; chose a blood test; and declared that under the 2013 U.S. Supreme Court decision in Missouri v. McNeely, he would have to obtain a subpoena in order to conduct the test.

The opinion, by Justice Art McKinster, affirmed the Superior Court’s denial of Espinosa’s petition for a writ of mandate by which she sought an overturning of a one-year suspension of her driver’s license by the Department of Motor Vehicles for refusing to submit to a test of her blood alcohol content,

McKinster wrote:

“Prior to issuance of the decision in Birchfield, we would have agreed with the Department that Espinoza’s refusal to submit to a blood test would have been a sufficient basis for her license suspension, and we would have had no need to address breath tests. But…it is unclear whether the high court would approve of a civil license suspension based solely on a motorist’s refusal to submit to a warrantless blood test. Therefore, we err on the side of caution and affirm the suspension based on Espinoza’s refusal to submit to a breath test.

“The police could not force Espinoza to submit to a blood test against her will unless they obtained a warrant or showed there were exigent circumstances that justified a warrantless search….Consequently, we assume without deciding, that Espinoza could refuse to submit to a warrantless blood test unless the police obtained a warrant, and that, without more, her refusal to do so could not result in her license being suspended.”


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