WHO HAS THE BURDEN OF CONSTITUTIONALITY TO A DUI BLOOD DRAW?
WHO HAS THE BURDEN OF CONSTITUTIONALITY TO A DUI BLOOD DRAW?
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WHO HAS THE BURDEN OF CONSTITUTIONALITY TO A DUI BLOOD DRAW?

| Nov 29, 2018 | Firm News

Defendant, who was lawfully arrested for driving while under the influence of an alcoholic beverage, moved to suppress evidence before trial.

Defendant in his PC § 1538.5 motion alleged: “The collection of blood, breath, or urine constitutes a search and seizure within the meaning of the Fourth Amendment and must be done pursuant to accepted medical practices.”

At a hearing, the only witness was the arresting officer, Ramos. He testified that, after defendant refused to submit to a breath or blood test, a blood draw was performed pursuant to a search warrant. The form DUI search warrant used by the Ventura Superior Court mirrors Penal Code section 1524(a)(13), which provides that a blood “’sample will be drawn from the person in a reasonable, medically approved manner.’”

Ramos testified that the blood was drawn in his presence at a hospital. The trial court suppressed the blood-test results. It explained that, although “[t]he defense pled in their moving papers that acceptable medical practices must be followed[,] . . . [n]o evidence was adduced as to that fact.” The People appealed from the interlocutory suppression order to the Appellate Division of the Ventura County Superior Court (Appellate Division).  The appellate division reversed. The court of appeal agreed, holding that, where the circumstances of the blood draw are typical and routine, i.e., not peculiarly within the knowledge of the People, the burden of proof is on the defendant.

The Appeal court relied on People v. Amador (2000) 24 Cal.4th 387, 393 [A defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions. [Citations.]”]; see also Franks v. Delaware (1978) 438 U.S. 154, 171 [“There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant”].); see also People v. Reyes (1990) 223 Cal.App.3d 1218, 1224 [“Because the questioned search in this case occurred during execution of a search warrant, defendant had the burden of proving the search was beyond the warrant’s scope”].)

The Appeal court noted the United States Supreme Court has not determined which party has the burden of proof when the defendant contends that a valid search warrant was improperly executed. (See 6 LaFave, Search and Seizure (5th ed. 2012) § 11.2(b), p. 72.) But it has “expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ [Citations.]” (United States v. Leon (1984) 468 U.S. 897, 914.) Searches “‘pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ [citation], for ‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ [Citation.]” (Id. at p. 922.)

The Appeal Court strongly relied on United States v. Vigo (5th Cir. 1969) 413 F.2d 691 and United States v. Marx (5th Cir. 1981) 635 F.2d 436, stating “Vigo and Marx are consistent with a long line of federal cases concluding that, because a search conducted pursuant to a warrant is presumed valid, the burden is on the defendant to prove that the search was unlawful.”

The holding does not mean that a Defendant can never attack the validity of a search warrant, the burden of proof rests squarely on defendant and during the execution of a warrant the burden is more difficult. In its Amicus Brief the Attorney General pointed out Defendant ““could have simply averred that the blood draw procedures were unsanitary, painful, or unsafe and provided support from his own recollection.” He also could have questioned Officer Ramos about the blood draw during cross-examination. “[T]he testimony of a police officer, when he or she is a percipient witness to the blood draw in question, may properly be considered in evaluating whether that blood draw was conducted in a constitutionally reasonable manner.”  Thus, Defendant failed to carry his burden of proving that the blood draw was not performed in a reasonable manner.

See People v. Fish

Robert Rodriguez has represented defendants in dozens of DUI cases and including misdemeanor and felony criminal matters including bank robbery, assault with a deadly weapon, burglary, motor vehicle theft, grand theft, felony driving under the influence, felony domestic violence, felony drug possession and sales, 3-Strikes cases, criminal appeals, juvenile criminal court, and matters under the Sexually Violent Predator Act (SVPA).

Robert Rodriguez was a sworn California Police Officer in Stockton California and was trained and certified as a Drug Recognition Expert by the California Highway Patrol to provide expert court testimony.  Robert Rodriguez investigated and was involved in close to 500 criminal matters involving DUI, drunk in public, and being under the influence of a drugs.  Robert Rodriguez now represents DUI defendants in court.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

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