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  1. Mark Deniz has been a member of the California State bar for over 11 years.

  2. Mark is involved with the San Diego Bar Association serving on its legal panel.

  3. Due to his legal experience Mark Deniz has the privilege of serving on several attorney panels.

  4. Avvo Top Contributor 2015 DUI

    Mark Deniz is a top contributor on Avvo providing outstanding legal advice. Mark Deniz also serves on the Avvo Legal Panel. The only San Diego Criminal Defense attorney who is on the panel.

  5. Mark Deniz is a member of California DUI Lawyers Association.

  6. Nation's Premier | NACDA | Top Ten Ranking 2014

    Mark Deniz has been named one of The National Academy of Criminal Defense Attorneys “Top 10” Attorneys.

  7. Mark Deniz has been deemed by The Lead Counsel Rating for providing exceptional legal representation to individuals and businesses.

  8. The firm is a member of the better business bureau who ensures quality service for its clients.

  9. The National Trial Lawyers - Top 100 Trial Lawyers

    Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

  10. Mark Deniz is a member of the prestigious National College for DUI defense and has completed its intensive summer session curriculum conducted at Harvard Law School.

  11. Mark Deniz has received AVVO’s prestigious Clients’ Choice award

  12. Avvo Rating 10.0 Superb Top Attorney DUI

    The prestigious legal rating service AVVO has consistently given Law Offices of Mark Deniz a "Superb" rating.

  13. Proudly Serving the Community Service 2003

    Mark Deniz has proudly served as a member of the California state bar since 2003.

  14. Mark Deniz has consistently been named one of the National Trial Lawyers Top 100 Trial Lawyers.

San Diego DUI Focus Missouri v. McNeely- argument from the other side

As a proud member of the California DUI Lawyers Association, I have the privilege to discuss legal issues with some of the finest legal minds in DUI Defense. I attended the summer session at Harvard Law school and the experience added to the arsenal of knowledge that will ultimately benefit my clients.

A hot topic is “McNeely”. So, what is McNeely?  

Missouri v. McNeely was a case decided by United States Supreme Court, on appeal from the Supreme Court of Missouri, regarding exceptions to the Fourth Amendment to the United States Constitution under “exigent circumstances

Facts:

Around 2 a.m. on October 3, 2010, Tyler Gabriel McNeely was stopped by a highway patrolman for overspeeding in Cape Girardeau, Missouri. McNeely failed several field sobriety tests, and was asked to submit to an alcohol breath test, which he refused. He was then transported to a medical clinic where the clinic staff administered a blood test without the suspect’s consent. The test showed McNeely’s blood-alcohol levels to be well above the legal limit, and he was charged with driving while intoxicated.

 A divided Supreme Court affirmed the Missouri Supreme Court, agreeing that an involuntary blood draw is a “search” as that term is used in the Fourth Amendment. As such, a warrant is generally required. However, the Court left open the possibility that the “exigent circumstances” exception to that general requirement might apply in some drunk-driving cases.  Bottom line…The United States Supreme Court in Missouri v. McNeely held 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.

This decision has allowed DUI attorneys to attack the chemical results due to no warrant.  However, prosecution agencies is pushing legislation (SB 717) to allow the issuance of a search warrant to compel a blood draw when a person is suspected of driving under the influence and has refused to submit to, or failed to complete, a blood test.   It is an unsettled area in California DUI law.  A different courtroom in the same building may give you a different result.

The prosecution argument is this.


The Supreme Court concluded that in driving
under the influence investigations, the natural dissipation of alcohol in the
bloodstream alone does not constitute an exigency in every case sufficient to
justify a warrantless blood draw. 
Relying on that decision, defendant here argues that the blood alcohol
evidence must be suppressed. 

 Although the McNeely decision
is retroactive and thus applies to defendant, suppression of the blood alcohol
evidence is unwarranted because the officer acted in objective good faith on
existing binding appellate, creating a good faith exception to the exclusionary
rule.


II.  ARGUMENT

A.  Schmerber
v. California

In Schmerber v. California (1966)
384 U.S. 757, the police believed that a driver, who had been involved in an
accident, was intoxicated.  The driver
was being treated at a hospital and refused to consent to a blood alcohol test.  The police ordered the doctor to perform the
test. (Id. at. pp. 758-759.)  The
warrantless seizure of the blood was upheld: 
“The officer in the present case . . . might reasonably have believed
that he was confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened the destruction of
evidence.  We are told that the
percentage of alcohol in the blood begins to diminish shortly after drinking,
as the body functions to eliminate it from the system.  Particularly in a case such as this where
time had to be taken to bring the accused to a hospital and to investigate the
scene of the accident, there was not time to seek out a magistrate and secure a
warrant.”  (Id. at pp.
770-771.) 

B.  Missouri v. McNeely

On April 17, 2013, the United States
Supreme Court issued its decision in McNeely, supra, 133 S.Ct. 1552. 
The Supreme Court acknowledged that “because an individual’s alcohol
level gradually declines soon after he stops drinking, a significant delay in
testing will negatively affect the probative value of the results.”  (McNeely, supra, 133 S.Ct. at
p. 1561.)  “This fact was essential to
our holding in Schmerber, as we recognized that, under the
circumstances, further delay in order to secure a warrant after the time spent
investigating the scene of the accident and transporting the injured suspect to
the hospital to receive treatment would have threatened the destruction of
evidence.”  (Ibid.)  Nevertheless, the McNeely court said that while the natural
dissipation of alcohol in the blood may support a finding of exigency in a
specific case, as it did in Schmerber, it does not do so
categorically.  (Id. at p.
1563.)  Rather, “consistent with general
Fourth Amendment principles, that exigency in this context must be determined
case by case based on the totality of the circumstances.”  (Id.
at p. 1556.) 

C. 
The Good Faith Exception to the
Exclusionary Rule Precludes Suppression

The nonconsensual blood draw in this case
occurred before the United States Supreme Court issued McNeely.  Newly announced
rules of constitutional criminal procedure must apply “retroactively to all
cases, state or federal, pending on direct review or not yet final, with no
exceptions.”  (Griffith v. Kentucky (1987) 479 U.S. 314, 328.)  Thus, McNeely
applies retroactively to the search in this case, and defendant may rely on McNeely as a basis for seeking
relief.  (Davis v. United States
(2011) __ U.S. __ 131 S.Ct. 2419 (Davis).

But retroactivity does not dictate that the resulting evidence must be
suppressed.  Retroactive application does
not determine what appropriate remedy, if any, the defendant should
obtain.  ARemedy
is a separate, analytically distinct issue.  (Davis, supra, 131 S.Ct. at p.
2431.)  The exclusion of evidence does
not automatically follow from the fact that a Fourth Amendment violation
occurred.  (Ibid.)

In Davis, supra, 131 S.Ct. 2419, the Supreme Court
considered the legality of a search that violated the Supreme Court’s decision
in Arizona v. Gant (2009) 556 U.S. 332 (Gant), but occurred two
years prior to the ruling inthat case. 
In Gant, the Court held that a warrantless vehicle search
incident to lawful arrest is not valid if it occurs after the defendant no
longer had access to the vehicle.  In
this holding, the Court departed from its decision in New York v. Belton
(1981) 453 U.S. 454, which “was widely understood to have set down a simple,
bright‑line rule” authorizing warrantless automobile searches incident to
arrests of recent occupants, regardless of their location during the
search.  (Davis, 131 S.Ct. at
2424.)  The Supreme Court granted review
in Gant because “not every court, however, agreed with this reading of Belton.”  (Davis, at p. 2425.)

While Davis’s appeal was pending in the Eleventh Circuit, the Supreme
Court issued its opinion in Gant
The Eleventh Circuit applied Gant retroactively, and determined
the search of Davis’s car was unlawful. 
(Davis, supra, 131 S.Ct. at p. 2426.)  Nevertheless, the Eleventh Circuit, which had
“long read Belton to apply a bright
line rule,” declined to apply the exclusionary rule and affirmed Davis’s
conviction, concluding that penalizing the arresting officer for following
binding appellate precedent in that circuit would do nothing to deter Fourth
Amendment violations.  (Davis, supra,
131 S.Ct. at p. 2426.)  The United States
Supreme Court affirmed.

The exclusionary rule’s sole purpose is to deter future Fourth Amendment
violations by law enforcement.  (Davis,
supra, 131 S.Ct. at p. 2426.) 
Exclusion is not designed to redress the injury occasioned by an
unconstitutional search.  (Ibid.)  For exclusion to be appropriate, the
deterrence benefits of suppression must outweigh the costs.  (Id. at 2427.)  Thus, the high court has focused on the
culpability of the law enforcement conduct. 
(Davis, supra, 131 S.Ct. at p. 2427.)  “When the police exhibit ‘deliberate,’
‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” the
deterrent value of exclusion is strong . . . . 
But when the police act with an objectively ‘reasonable good faith
belief that their conduct is lawful’ . . . the deterrence rationale loses much
of its force, and exclusion cannot pay its way.”  (Id. at pp. 2427B2428.) 
As to mistakes by judges, the Davis court observed that punishing
the errors of judges “is not the office of the exclusionary rule.”  (Id. at p. 2428.)

Applying this reasoning to the circumstances of Davis, the high
court held that when law enforcement agents conduct a search in objectively
reasonable reliance on binding appellate precedent, police culpability is
wholly absent.  (Davis, supra,
131 S.Ct. at pp. 2428B2429.)  The police in Davis acted in strict
compliance with binding precedent, and thus did no more than act as reasonable
officers would and should act under the circumstances.  (Id. at 2429.)

1.  Effect of McNeely

The analysis of Davis, supra,
131 S.Ct. 2419, applies to this case to uphold the good faith exception to the
exclusionary rule, thus precluding suppression of the blood alcohol
evidence.  Any argument that the Supreme
Court in McNeely did no more than maintain the holding of Schmerber ignores the complexity of the circumstances giving rise to McNeely

The Supreme Court’s grant of review in McNeely belies any conclusion that the proper interpretation of Schmerber
was clear.  As the Supreme Court stated,
it granted review to resolve a split of authority among courts on whether the
dissipation of alcohol in the bloodstream, on its own, justifies warrantless,
nonconsensual blood testing in drunk-driving investigations.  (McNeely, supra, 133 S.Ct. at p. 1558.)1  The Supreme Court noted that the Missouri
Supreme Court recognized that Schmerber “ ‘provided the backdrop’ to its
analysis.”  (McNeely, at p.
1557.)  The Missouri Supreme Court
concluded that Schmerber directs lower courts to engage in a totality of
the circumstances analysis and requires more than dissipation of alcohol to
support a warrantless blood draw.  (McNeely,
at p. 1557.)

On the other hand, the Supreme Court cited State v. Bohling (1993)
494 N.W. 2d 399 (Bohling), as an example of a court decision reflecting
a contrary view.  (McNeely, at p.
1558, fn. 2.)  In Bohling, the
Wisconsin Supreme Court also stated that “Schmerber is the starting
point for our analysis.”  (Bohling,
supra, 494 N.W.2d 399).  However,
the Wisconsin Supreme Court reached a different conclusion:  “Schmerber can be read in either of
two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone
constitutes a sufficient exigency for a warrantless blood draw to obtain
evidence of intoxication following a lawful arrest for a drunk driving related
violation or crime B as
opposed to taking a blood sample for other reasons, such as to determine blood
type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled
with an accident, hospitalization, and the lapse of two hours until arrest,
constitute exigent circumstances for such a blood draw.  [&]  We believe that the more reasonable
interpretation of Schmerber is the first one set forth B exigency based solely on the fact that
alcohol rapidly dissipates in the bloodstream.” 
(Bohling, at p. 539.)

The Bohling court supported its conclusion by considering, among
other things, “a logical reading of Schmerber,” and the same
interpretation of Schmerber by other state supreme courts and federal
circuit courts.  (Bohling, at pp.
539-540, discussing cases and commentary at pp. 542-545.)

Regarding the “logical reading” of Schmerber, the Wisconsin
Supreme Court stated:  “A logical
analysis of the Schmerber decision indicates that the exigency of the
situation presented was caused solely by the fact that the amount of alcohol in
a person’s blood stream diminishes over time. 
The fact that an accident occurred and that the defendant was taken to
the hospital did not increase the risk that evidence of intoxication would be
lost.  A hospital trip to another
location at which a medically qualified person is present is standard procedure
for taking a blood sample in a drunk driving case, regardless of whether an
accident occurred.”  (Id. at pp.
539-540.)

In State v. Shiner (Minn.2008) 751 N.W.2d 538, which was also
cited in the McNeely footnote, the Minnesota Supreme Court concluded
“the rapid dissipation of blood-alcohol content caused by the body’s natural processes
is a single factor that creates the exigent circumstances in the case of
criminal vehicular operation to justify a warrantless blood draw.”  (Id. at p. 546.)  The Shiner majority rejected an
interpretation of Schmerber that compels the conclusion “that a
‘totality of the circumstances’ approach must be used in determining whether
the police can take a warrantless blood draw when they have probable cause to
believe someone has engaged in drunken driving.”  (Shiner, supra, 751 N.W.2d at
p. 547, fn. 9.)  The Minnesota Supreme
Court cited other federal circuit and state supreme courts that have similarly
interpreted Schmerber as concluding that the naturally rapid dissipation
of alcohol in the bloodstream creates the exigency that justifies a warrantless
blood draw.  (State v. Shiner,
supra
, 751 N.W.2d at p. 547 & fn.11.)

We note that Schmerber’s
analysis, in contrast to McNeely, was
not extensive, with only one paragraph examining the exigency that justified
the warrantless blood draw in that case. 
(See Schmerber, supra, 364 U.S. at pp, 770-771.)  Although the McNeely court concluded that Schmerber
applied a totality of the circumstances approach, (McNeely, supra, 133 S.Ct.
at p. 1559), the Supreme Court in Schmerber
never used that phrase, nor did it even articulate a test.  Indeed, in granting review, the Supreme Court
in McNeely recognized that numerous courts have interpreted Schmerber
to mean that the natural dissipation of alcohol in the bloodstream, by itself,
is a sufficient exigent circumstance to justify a warrantless blood draw when
there is probable cause to suspect the defendant has driven under the
influence.  Such binding appellate
precedent has evolved in these particular state and federal circuits over the
47 years since Schmerber was decided.2 For nearly five decades, this
precedent has gone uncontradicted by the United States Supreme Court.  In McNeely, the Supreme Court has now rejected the interpretation
of Schmerber espoused by these
courts.  The Supreme Court stated the
rule to which state and federal courts must adhere:  the natural metabolization of alcohol in the
bloodstream does not present a per se exigency that justifies an
exception to the Fourth Amendment’s warrant requirement.  (McNeely, supra, 133 S.Ct. at
p. 1556.)  In the light of this change in
the law in jurisdictions where courts, relying on Schmerber, have established contrary binding precedent, Davis applies.  The exclusionary rule has no application to officers
who conducted their search “in reasonable reliance upon binding
precedent.”  (Davis, supra, 131 S.Ct.
at p. 2429.)

2.  Binding California Appellate
Precedent

A review of California appellate authority, all of it relying on Schmerber, demonstrates that it has been
lawful to extract a blood sample in a medically approved manner without a
warrant because blood alcohol dissipates with time, resulting in the
destruction of evidence.  In People v.
Superior Court (Hawkins)
(1972) 6 Cal.3d 757 (Hawkins), the first
California Supreme Court case to address the issue following Schmerber,
our Supreme Court stated that a warrantless blood draw could occur incident to
a lawful arrest:  “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 alcohol test to determine intoxication, provided
that the taking of the sample is done in a medically approved manner, is
incident to a lawful arrest, and is based upon the reasonable belief that the
person is intoxicated.  (Schmerber v.
California
(1966) 384 U.S. 757, 766‑772.)” 
(Hawkins, supra, 6 Cal.3d at p. 761, italics added,
citation omitted.)  The Hawkins
court stated further:  “Schmerber
recognizes that once the suspect is arrested, a seizure incident thereto may be
properly conducted without a warrant,
since the rapid dissipation of the alcohol would make the delay involved in
obtaining a search warrant unnecessary and unjustifiable.”  (Hawkins, supra, 6 Cal.3d at p.
765, fn. 7, italics added.)

The arrest requirement of Hawkins
was later abrogated by Proposition 8.  As
the Court of Appeal explained in People v. Trotman (1989) 214 Cal.App.3d
430, 435 (Trotman), Hawkins was decided by our Supreme Court in
1972, before the passage of Proposition 8, which amended the California
Constitution to provide that relevant evidence shall not be excluded in any
criminal proceeding.  The Trotman
court noted although Schmerber referred to the search as incident to
arrest, the United States Supreme Court “relied
almost exclusively on the exigency created by the evanescent nature of blood
alcohol and the danger that important evidence would disappear without an
immediate search.
”  (Trotman,
supra
, 214 Cal.App.3d at p. 436, italics added.)

The Trotman court concluded: 
“Under federal law, it is the evanescent nature of the evidence
sought
, not the existence or absence of a formal arrest, that
constitutionally justifies the warrantless, nonconsensual seizure of a blood
sample from a defendant suspected of committing an alcohol‑related
offense.”  (Trotman, supra,
214 Cal.App.3d at p. 437, italics added.) 
The Trotman court concluded
a warrantless blood draw is permissible “so long as probable cause exists to
believe that the defendant was driving under the influence and that an analysis
of the sample will yield evidence of that crime.@  (Id. at p. 437, fn. omitted.)



Additionally the Court of Appeal in Trotman noted the trial court
had upheld admission of the defendant’s blood alcohol evidence on the basis of Carrington
v. Superior Court
(1973) 31 Cal.App.3d 635, another pre-Proposition 8
case.  In Carrington, the Hawkins
arrest requirement was excused by circumstances created by a DUI accident and
transportation of the defendant to the hospital.  The Court of Appeal in Trotman noted
that “[a]lthough we are convinced, as was the trial court, that the instant
case falls squarely within the exigent circumstances doctrine relied upon in Carrington,
we find it unnecessary to justify the seizure of the blood sample on that
ground.”  (Trotman, at p. 434, fn.
omitted.) 

A month after Trotman, another Court of Appeal issued People v.
Deltoro
(1989) 214 Cal.App.3d 1417 (Deltoro), which agreed that
Proposition 8 had abrogated the arrest rule of Hawkins.  Like Trotman, the Deltoro case
involved an accident in which the driver was taken to the hospital for
treatment of his injures.  The Deltoro
court concluded the blood extraction here was proper because there was probable
cause to believe the defendant committed the crime of driving under the
influence of alcohol.  (Id. at p.
1426.)  The Deltoro court made no
mention of exigencies caused by the accident and hospitalization, and noted Trotmans observation that “ ‘it was unnecessary
to justify the seizure of the blood sample on that ground.’ ”  (Deltoro,
supra, 214 Cal.App.3d at p. 1425,
fn.2.)

Four years after the Court of Appeal decisions in Trotman and Deltoro, the
California Supreme Court in People v.
Clark
(1993) 5 Cal.4th 950 (Clark),
identified the body’s metabolization of evidence as a sole exigent circumstance
justifying a warrantless blood draw upon probable cause to believe the
defendant had ingested drugs and alcohol. 
Clark concernedthe probable cause for taking a
defendant’s blood sample after his arrest for a murder that occurred earlier
that day.  Following the blood test, the
defendant told the police he had ingested drugs and alcohol near the time of
the murder.  The Supreme Court noted the
police would have inevitably taken a blood sample in light of those admissions.  Moreover, the high court, expressly relying
on Schmerber, additionally stated
that following defendant’s revelations about drug and alcohol use, “exigent
circumstances creating an exception to the warrant requirement were also
present since defendant’s body was metabolizing the evidence and delay could have
resulted in destruction of the evidence sought.”  (Clark,
supra, 5 Cal.4th at p. 993.)

In People v. Wilson (2003) 114
Cal.App.4th 953, the Court of Appeal rejected the defendant’s argument that his
Fourth Amendment rights were violated by the taking of his blood after he
voluntarily submitted to a preliminary alcohol screening (PAS) test.  The court stated despite the taking of the
PAS test, it remains important to obtain the more reliable result of the
chemical test before the evidence becomes unavailable with the passage of
time.”  (Id. at p. 960.) 
“ ‘[T]he exigency created by the evanescent nature of blood alcohol
and the danger that important evidence would disappear’ is sufficient to
satisfy Fourth Amendment standards.’ ”  (Ibid., quoting Trotman, supra, 214
Cal.App.3d at p. 436.)

In People v. Sugarman (2006) 96
Cal.App.4th 210, the defendant agreed to take a breath test, but did not follow
the officer’s instructions, resulting in insufficient volume to register a
result.  After ten unsuccessful attempts,
the officer “decided that a blood draw was necessary.”  (Id.
at p. 213.)  In upholding the blood draw,
the Sugarman court stated that
forcible, warrantless chemical testing may occur under the authority of Schmerber “if the circumstances require
prompt testing,” the arresting officer has reasonable cause to believe the
arrestee is intoxicated, and the test is conducted in a medically approved
manner.  (Sugarman, supra, 96
Cal.App.4th at p. 214.)  As to the first
condition – “if the circumstances require prompt testing” – the Sugarman court concluded:  “There was a need for prompt testing because
the percentage of alcohol in Sugarman’s blood was diminishing after his
arrest.”  (Sugarman, at p. 214, citing Schmerber,
supra, 384 U.S. at p. 760.)  “The court could reasonably infer that [the
defendant] was attempting to obstruct the breath test and [the officer] did not
act arbitrarily.  Here, as in Schmerber, there was no time to obtain a
warrant.  Compelling him to take a blood
test was a constitutionally reasonable alternative to obtain a reliable test
before the blood-alcohol diminished.”  (Sugarman, supra, 96 Cal.App.4th at p. 215.) 

In People v. Fiscalini (1991)
228 Cal.App.3d 1639, the Court of Appeal concluded the defendant’s motion to
suppress his blood sample had been erroneously denied when the police forcibly
drew his blood after he had already given a urine sample.  Fiscalini
holds only that having obtained one completed blood alcohol sample from the
defendant with his consent, “the government did not demonstrate any need to
force him to undergo a second intrusion.” 
(Id. at p. 1645.)

The review of cases undertaken here demonstrates that binding appellate
precedent in California has been consistent with the position espoused by
petitioner Missouri in McNeely:  “The State contends that whenever an officer
has probable cause to believe an individual has been driving under the
influence of alcohol, exigent circumstances will necessarily exist because BAC
evidence is inherently evanescent.”  (McNeely, supra, 133 S.Ct. at p. 1560.) 
No California appellate case has suppressed blood alcohol evidence
because the officer failed to establish factors indicating that he faced an
emergency or unusual delay that precluded securing a warrant.  Indeed, California has no statutory means of
obtaining a general misdemeanor search warrant.3

In view of the existing binding precedent in California at the time McNeely was decided, Davis applies to provide a good-faith
exception to the exclusionary rule in this case.

3. Application of Davis to the Defendant’s Warrantless Blood Draw

The officer here obtained defendant’s blood sample doing exactly what the
law at the time said he could do.  [Since
you’ve already done a statement of facts, just tie the key facts to the case law
precedent, e.g. any statement by the officer that the rising BA required the
search.]

Like the officer in Davis, the
deputy here did not violate the defendant’s Fourth Amendment rights
deliberately, recklessly or with gross negligence.  (Davis,
supra, 133 S.Ct. at p. 2428.)  Because the deputy’s conduct was in
compliance with binding precedent and not culpable in any way, “[t]he harsh
sanction of exclusion ‘should not be applied to deter objectively reasonable
law enforcement activity.’ ”  (Id. at p. 2429.)

4. 
Apart from Davis, the Good
Faith Exception Applies

While the People maintain that Davis
is on point here, even apart from that particular high court decision, the
broader general principles of the good faith exception to the exclusionary rule
apply.  Davis simply reflects one specific application of the exclusionary
rule.  (See Davis, supra, 133 S.Ct.
at p. 2428.)  In United States v. Herring (2009) 555 U.S. 135, 140, the high court
stated:  “We have repeatedly rejected the
argument that exclusion is a necessary consequence of a Fourth Amendment
violation.”  “[E]xclusion has always been
our last resort, not our first impulse. “ 
(Id. at p. 141.)  In Herring,
the Supreme Court stated:  “ ‘[E]vidence
should be suppressed “only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” ’ ”  (Id.
at p. 143.)  Therefore, “[t]o trigger the
exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.”  (Ibid.,
fn. omitted.)  Thus, applying general
exclusionary rule principles, the officer here could not have been “charged
with knowledge” that the warrantless blood draw was unconstitutional.  His conduct was objectively reasonable, and
penalizing him by suppressing
evidence serves no deterrent purpose.




1  The Supreme Court opinion indicates
that argument in support of petitioner State of Missouri was presented by the
Solicitor General of the United States as amicus curiae.  Additionally, the slip opinion indicates a
brief was filed in support of the State of Missouri by Delaware, Alabama,
Arkansas, Colorado, Connecticut, District of Columbia, Florida, Guam, Idaho,
Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Michigan, Minnesota,
Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota,
Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah,
Washington, Wisconsin, and Wyoming as amici curiae.

2  As a
result, this is not a circumstance in which the law is unsettled.  (See Davis,
supra, 131 S.Ct. at p. 2436 (dis. opn.
of Sotomayor, J.).)  The Supreme Court
addressed the issue in Schmerber.  However, it is the meaning of the Court’s decision that has been interpreted
differently.

3   Penal
Code section 1524(a) provides statutory authority to issue a warrant for “any
evidence that tends to show a felony has been committed, or tends to show that
a particular person has committed a felony.” 


said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” ’ ”  (Id.
at p. 143.)  Therefore, “[t]o trigger the
exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.”  (Ibid.,
fn. omitted.)  Thus, applying general
exclusionary rule principles, the officer here could not have been “charged
with knowledge” that the warrantless blood draw was unconstitutional.  His conduct was objectively reasonable, and
penalizing him by suppressing
evidence serves no deterrent purpose.

These are interesting points.  I disagree with the prosecutions argument. However, it is important to know the logic behind both sides arguments to be an effective advocate.  The legislature will likely create legislation that will sidestep the warrant issues.  However, an effective DUI defense attorney will address this issue as a competent DUI defense.  

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation. 


Latest, Proven Results

Area of Practice: DUI Defendant charged with a DUI with a prior blood alcohol level of .14%.
January 2015
Outcome of Case:
No jail time or picking up trash.

Area of Practice: Minor in Possession of Alcohol with one year mandatory license suspension.
January 2015
Outcome of Case:
An infraction (ticket) with no drivers license issues.

Area of Practice: DUI Defense- 1st time DUI
January 2015
Outcome of Case:
"Wet Reckless" with no trash pickup or jail time.

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