At the beginning of this month, nationwide outrage occurred when a Utah
nurse Alex Wubbels was arrested by Salt Lake City police officers after
refusing to draw blood from an unconscious patient—who was a victim
of a road accident and suffered severe burns—due to hospital policy.
The police needed the blood sample to determine whether the patient had
illicit substances in his system at the time of the crash.
Feeling agitated by Wubbels refusal, Detective Jeff Payne became agitated
and promptly arrested the nurse. The unfortunate incident took place on July 26.
In the end, Wubbels was not charged with the crime. Due to public backlash,
however, the Salt Lake City Police Department placed Payne and a second
officer on paid administrative leave pending an investigation.
This recent story has sparked the debate on the legality of warrantless
Are Warrantless Blood Draws Legal?
In 2016, the Arizona Supreme Court in Arizona ruled that a blood sample
cannot be taken without patient consent or a search warrant. The decision
was tracked back to a 2013 U.S. Supreme Court ruling on warrantless blood
The natural metabolism of alcohol does not grant a “per se”
exigency which allows a blanket exception to the Fourth Amendment requirement
of obtaining a warrant in DUI cases. But that exigency must be determined
on a case-by-case basis with the totality of circumstances being considered,
although the Court did not provide clear guidelines about when a warrant
In 2010, Tyler McNeely was pulled over in Missouri by a law enforcement
official who noticed signs of impairment. When McNeely refused a breath
test twice, the officer had him transported to a hospital where a blood
draw was performed without McNeely’s consent or a warrant. His BAC
came back at .154 and he was charged with a DUI. McNeely motioned to have
the results suppressed, arguing that the warrantless blood draw was a
violation of his Fourth Amendment rights.
What About California?
While many states have dropped portions of their “implied-consent”
statutes regarding warrantless blood draws as a result of the McNeely
case, this has not happened in California. According to the state’s
implied consent rule, a suspected DUI driver automatically gives consent
to chemical testing when an officer has probable cause that the driver
is under the influence.
In 2015, a California appellate court faced the issue of a warrantless
blood draw in
People vs. Harris. The appellate panel in the Harris case distinguished the McNeely case
because law enforcement had obtained the defendant’s blood sample
via actual consent that the court found was voluntarily given following
the arresting officer’s advice about the state’s implied consent
law. Alas, the Fourth Amendment protections that were addressed in the
McNeely case did not apply since the Harris court did not have to determine
whether the police acted properly in failing to obtain a warrant before
While it remains to be seen whether California’s implied consent
statute will stand up as true consent under the Fourth Amendment, defense
attorneys will have to focus on the validity of an arrest and keep pushing
for clarity on the issue of consent regarding warrantless BAC testing.
If you were recently arrested for a DUI in Ventura County,
contact The Law Offices of Robert F. Sommers and schedule a
free consultation today.