• Harris ___ CA4 ___, ___ CR3 ___ (15) #E060962
In Missouri v. McNeely (2013) 569 U.S. ___, 133 S.Ct. 1552, the United States Supreme Court held that, before the police may conduct a nonconsensual blood test of a motorist who is arrested on suspicion of driving under the influence of alcohol (DUI), the police must either obtain a warrant from a magistrate or later show that exigent circumstances prevented them from timely obtaining a warrant.
The appellate division held that McNeely did not foreclose consensual blood tests conducted under the implied consent law, and that defendant’s voluntarily and freely given consent satisfied the Fourth Amendment.
The Court of Appeal, per McKinster, Acting P.J., affirms, holding that McNeely does not apply because voluntary consent to the blood draw satisfies the 4th Amendment.
But was the consent truly voluntary? Or was it coerced out of the Def. by an improper advisement that warned of dire consequences that were not true?
What happened was this. After a stop on suspicion of DUI, a deputy sheriff named Robinson ran field sobriety tests, concluded Def. was UI and arrested him. He then advised Def. that he was required to submit to a blood test. Didn’t mention the breath test at all. He then laid out the dire consequences of refusal—suspension of license “for the next two or three years,” and use of the refusal in court.
Def. said, “Okay.”
At the sheriff’s station, a phlebotomist with whom Deputy Robinson had previously worked drew defendant’s blood. Deputy Robinson observed the phlebotomist swab the inside of defendant’s right elbow with what appeared to be a disinfectant. The phlebotomist then obtained a blood sample from defendant using a hypodermic syringe. Deputy Robinson testified that defendant did not resist the blood draw or say, “no, I don’t want to do this.” The phlebotomist packaged the sample, and Deputy Robinson placed it into the station’s blood depository.
So was this voluntary consent? Def. argued no way! First of all, it’s not truly voluntary if a cop tells you better do something, or else. And second, the advisement itself was false. The license suspension here would have been only for a year, and the Def. could have chosen a breath test if presented to him.
The court holds that a test admonition is not, in and of itself, coercive. But it also holds that the false admonition here falls into the no harm, no foul line of cases (my verbiage). The court’s verbiage was this: “Deputy Robinson’s admonition, though not entirely accurate, was not patently false.”
This seems to your humble reporter an odd doctrine. For at what point does “inaccurate” cross over into “patently false”? When does mishandled become mendacious? When does dissembling become deceitful?
Why not make it simple on everybody and require law enforcement to follow the law as it is actually written?