Update in whether a DUI blood draw requires a warrant. People v. Gutierrez
Birchfield held a breath test after a DUI arrest does not require a warrant but a blood test does…unless there is an exception to the warrant requirement (exigent circumstances, consent, or search incident to arrest).
But what “Birchfield does not address is how the search-incident-to-arrest exception applies when a suspect is compelled to undergo BAC testing but given a choice as to what form that testing takes.”
Here, Police gave Gutierrez the choice of giving breath or blood after his DUI arrest. Also, Police never “informed Gutierrez that if he refused both tests, he could face penalties under California’s implied consent laws.”
The holding here: “this element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.” Note that this is different than when Police tell the person arrested they can only do one certain test (eg. when a breathalyzer is not working and Police can only do a blood test).
The Court here coins the term “breath-or-blood test” for when Police offer the choice of either test, and reasons “[i]f 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 Court also fails “to see how Fourth Amendment values are enhanced by requiring a magistrate to review a warrant application before an arresting officer can accommodate a suspect’s preference for a particular BAC test.”
*Court of Appeals of California, First District, Division Four
**136 S.Ct. 2160