The Fourth Amendment to the U.S. Constitution protects people from unlawful searches and seizures. When it was added to the U.S. Constitution in 1791, it was intended to prevent law enforcement from unreasonably searching you or your home without either probable cause or a search warrant issued by a judge. Pivotal to the issuance of that warrant is the presentation of evidence that a crime has probably occurred. If a DUI charge is based on the analysis of a blood draw to establish a driver’s blood alcohol concentration, a quality DUI attorney will want to examine the circumstances surrounding that draw. That’s because evidence seized in violation of Fourth Amendment protections is generally inadmissible in court.
Will that be Breath or Blood?
When a driver has been taken into custody on a suspected DUI, he or she will be given a choice. The driver can either consent to breath testing or blood testing. What comes to issue is that the driver can refuse either type of testing without criminal consequences. That puts the ball in law enforcement’s court with the 24 second clock ticking because a search warrant must be obtained. That’s likely to take two hours at an absolute minimum for a traditional paper warrant. During that interim, any alcohol that a suspect might have consumed is being metabolized, and his or her blood alcohol concentration is going to be decreasing. A DUI suspect’s blood alcohol concentration might be below the statutory .08 limit by the time that a search warrant is issued and blood is drawn. Conversely, the suspect’s DUI attorney could argue that he or she only consumed three or four drinks over three hours, and a .08 or even a .10 blood alcohol concentration at the time of the blood draw was actually the culmination of that alcohol consumption more than two hours after being behind the wheel. With e-warrants, that delay is reduced to minutes.
Electronic warrants reduce the time for obtaining a search warrant for a blood test of a suspected DUI driver to minutes. When California passed its e-warrant law, police and prosecutors called that a huge win for the public. The police officer emails the judge, and the judge emails the officer a warrant back. What comes to issue with e-warrants is that a police officer isn’t personally standing in front of a judge and raising his or her right hand, stating purported facts and swearing to them, especially when that judge has had issues about the officer’s truthful testimony in the past. A quality DUI attorney will examine all of the facts surrounding a blood draw search warrant and protect a client’s Fourth Amendment rights.
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