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Law Permits Search Warrant for Blood Samples in California

Posted by Terry A. Wapner | Feb 19, 2014 | 0 Comments

When people think about search warrants, they mostly think about officers coming to an individual's home, showing the homeowner a search warrant, and looking through closets and drawers in order to find drugs, weapons, or other kinds of evidence that may be described in the warrant.

However, starting in the fall of 2013, officers in California are now permitted to obtain a search warrant from a judge in order to get a blood sample from a driver who is suspected of driving under the influence (DUI).

The recent law (penal code section 1524(a)(13) states that a search warrant may be obtained for the following situation: When a sample of the blood of a person constitutes evidence that  tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer's request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court's mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.

Ok, so an officer can get a search warrant for this, but where does the search warrant come from? Technically, search warrants are issued on behalf of the state of California and are signed by judges. Having a judge sign the search warrant is important because it allows for a neutral, detached party to consider and decide the circumstances.

However, a judge must ensure two requirements are met before signing her name to the search warrant. First, she must “reasonably believe” that a crime has been committed, and (2) that evidence of that crime is likely to be found in the place(s) described in the search warrant (penal code section 1525).

Remember that refusing to submit to a blood or breath test when requested by an officer (who suspects that you are driving while under the influence of drugs and/or alcohol) is contrary to the state's implied consent law.

Generally, the law says that when an individual is stopped for DUI, he or she is required to participate in chemical testing. It is determined that a driver impliedly consents to the test by utilizing California roadways and having a driver's license in the state.

So, what are your options? Can you refuse? Well, you can refuse a breath or chemical test, but by refusing, you are susceptible to further penalties. The following are the typical sentences for refusing a chemical test:

  • Refusal w/ no priors: One-year suspension of your driver's license;
  • Refusal w/ one prior DUI: Two-year suspension of your driver's license; and
  • Refusal w/ two prior DUI's: Three-year suspension of your driver's license.

If you have been charged with DUI in Fresno or the surrounding areas, contact my office. I have dedicated my practice to DUI defense and have helped many individuals in similar situations. We can schedule an initial consultation in order to review the facts of your case.

About the Author

Terry A. Wapner

Terry A. Wapner confines his practice to the defense of persons accused of driving under the influence of alcohol and/or drugs, and related crimes.

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