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By David Salvin March 3rd, 2003


Published in "Orange County Lawyer Magazine" March 2003

Imagine you’re driving home from dinner at a restaurant where you had a glass of wine or other alcohol with dinner. You are involved in a accident in which you are injured. The police arrive on scene and you are taken to a nearby hospital for treatment. Without actually arresting you, the officer, smelling the alcohol on your breath, demands that a blood sample be drawn against your will. You are left wondering - Can they do that without arresting you or at least having some suspicion of your violating some law.

We have been raised with the idea that before a search or seizure may be instituted, the police must have a search warrant or at least complete the search incident to an otherwise lawful arrest. But what about a forced search and seizure in the form of a blood drawn in a situation where the officer likely doesn’t have enough evidence or even probable cause to arrest you for driving under the influence, but demands a blood sample be taken in order to acquire enough evidence to prosecute?

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This question poses a greater legal conundrum than you might first expect. With the slow and inexorable erosion of the Fourth Amendment rights we have seen in criminal law over the past thirty years, many defense attorneys reluctantly sigh that they probably can execute such a search and seizure upon you even without a warrant or arrest.

However, the actual law is not as well settled. In 1972, the California Supreme Court in People v. Superior Court (Hawkins), 6 Cal.3d 757 addressed the issue of forcing blood tests from motorists suspected of driving under the influence. The Court held "It is clear that the Fourth amendment does not bar a compulsory seizure, without a warrant, of a person’s blood for the purposes of a blood test to determine intoxication, provided (1) that the taking of the sample is done in a medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon the reasonable belief that the person is intoxicated." Hawkins, 6 Cal.3d 757 at 761 citing Schmerber v. California, (1966) 384 U.S. 757.

The Federal law at the time was relatively clear. A forced blood draw is acceptable provided you have (1) medically approved blood draw, (2) incident to a lawful arrest, and (3) reasonable belief the person is intoxicated.

The California and Federal standards remained parallel but distinct until in 1982 voters approved Proposition 8, billed as the "Right to Truth-in-Evidence" provision to article I of the California Constitution, section 28, subdivision (d) section 28(d). The proposition required inter alia that "relevant evidence shall not be excluded in any criminal proceeding." The proposition, as applied, required that "California decisional law which would exclude relevant evidence under our state Constitution is now inapplicable; only that evidence which was illegally obtained under federal constitutional standards must now be suppressed in California Courts." Lance W., (1985) 37 Cal.3d 873; People v. Gutierrez, (1984) 163 Cal.App.3d 332;

California’s adoption of federal standards with regard to suppression of forcibly drawn blood evidence may not have been particularly meaningful as the standards set by Hawkins and Schmerber were the same. However, after the U.S. Supreme Court issued its ruling in Schmerber it issued an opinion in Cupp v. Murphy (1973) 412 U.S. 291 which arguably changed the federal standard.

The case in Cupp did not deal with DUI. The Cupp case involved fingernail scrapings taken from a husband who was suspected of killing his wife. The Cupp Court had no problem with these samples being taken without Cupp’s first having been arrested. By analogy it can be argued that forced blood draws are no different than the fingernail scrapings in Cupp. (If you ignore the pain, intrusion and risk of infection etc.)

This argument by analogy was used by the First District Court of Appeals in People v. DelToro, 214 Cal.App.3d. The Court held "We find that Hawkins has been abrogated by Proposition 8 because its holding is contrary to the federal rule as enunciated by the U.S. Supreme Court in Cupp." We further find that since the taking of the blood sample in this case complies with Cupp v. Murphy, the order granting the motion to suppress the blood sample should be reversed."

While the First Appellate District utilized Proposition 8 and the federal holding in Cupp to perform a de facto abrogation of the California Supreme Court holding in Hawkins, other appellate jurisdictions have not seen fit to do so.

The Fourth Appellate District in People v. Nieto, (1990) was faced with forced blood draw from a motorist who was suspected of driving under the influence. The facts differed from Hawkins only in the fact that the arrest was not made prior to the forced blood draw, but afterwards. In Nieto the prosecution argued the Deltoro had abrogated Hawkins and that pursuant to Proposition 8, California must now follow the federal standard of suppression of evidence, or whatever the federal standard was argued to be at the time. They argued that since Cupp had apparently set the trend allowing forced search and seizure with or without arrest, the blood taken from Nieto was not subject to suppression.

The Nieto Court, having a perfect opportunity to drive another nail in the coffin for Hawkins and the original California standard requiring arrest prior to the seizure, instead chose not to do so and made that fact clear in its holding. The Court reasoned "The seizure of Nieto’s blood was proper as incident to the lawful arrest that ensued. Although Nieto had not been placed under arrest prior to his blood bring drawn, the seizure was not unlawful simply because the arrest followed, rather than preceded it."

The Court went on to address the Proposition 8 issue. "Respondent [prosecution] urges us to follow the lead of two recent cases, which have held Hawkins is abrogated by the passage of Proposition 8, which amended [the California Constitution]. Because Hawkins is distinguishable, we decline the invitation to comment on its continuing vitality."

So that leaves those of us living under the auspices of the Fourth Appellate District to wonder. Can they do that? Or put differently, does the Fourth District care what the First District thinks the voters meant when they voted for Proposition 8 which was passed before the feds allegedly changed their suppression standards in Cupp? And even if the First District thinks the voters meant to follow the federal suppression standard which didn’t exist at the time of the vote, and even if the First Appellate District feels they can overrule the California Supreme Court, what difference does their persuasive, rather than controlling, decision make to those of us in the Fourth District.

If the issue isn’t exactly as clear as Baccarat in your minds, Don’t worry. Neither I nor the deputy district attorney who got my motion to suppress in the case that lead to this tiptoe through the legal tulips could figure it out either. We worked out an excellent resolution to the case at bar and left the issue as of yet unsolved. So next time you’re stopped for suspicion of driving under the influence (or your clients are), look to see if the police actually made an arrest or you may be left wondering "Can they do that?"

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