When a defendant consents to a blood draw without a warrant being obtained by the police, can the officer obtain a warrant?

California, United States of America


The following excerpt is from People v. Linares, E068808 (Cal. App. 2019):

Later, the court revisited the issue, because it realized that the blood draw occurred after the decision in Missouri v. McNeely, supra, 569 U.S. 141 and because there is a procedure in Riverside County for expeditious telephonic warrants for blood draws, causing the court to be concerned about reliance on statute authorizing warrantless blood draws in conflict with McNeely. After further argument, the court assumed the blood draw was unconstitutional pursuant to McNeely and People v. Harris (2015) 234 Cal.App.4th 671, because no warrant was obtained and there were no exigent circumstances rendering it unfeasible for officers to obtain a warrant and because defendant did not actually consent.

However, relying on Herring v. United States (2009) 555 U.S. 135, 140, holding that exclusion is not a necessary consequence of a Fourth Amendment violation where it will not result in appreciable deterrence, the court ruled that exclusion was not required because the officer relied on a facially valid statute (Veh. Code, 23612, subd. (a)(5)), which clearly and unambiguously permitted the blood draw. The motion was denied.

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