Recently, in a United States Supreme Court case, the government argued that obtaining a search warrant for a blood draw of a DUI suspect was difficult to do withing the context of a drunk driving arrest. However, in California a system is alreadfy in place to get a telephonic search warrant. As an alternative to written affidavits California Penal Code 1526(b)(1) permits sworn oral statements that are subsequently transcribed. For example, the affiant may phone the magistrate, state probable cause, and obtain the magistrate’s verbal authorization to sign the latter’s name to the warrant under the Penal Code in the state. The resulting warrant is the so-called telephonic (or, more accurately, telephonically authorized) search warrant. The expression “telephonic search warrant” can give rise to the erroneous impression that the warrant itself is oral. All search warrants must be in writing. The only thing different about a telephonic warrant is that the affiant signs the magistrate’s name to a duplicate original search warrant. This makes sense and allows for adequate protections in the remote context.
According to one Long Beach DUI Attorney, the CA Judges Benchguide offers detailed instructions to Judges on duty after hours and on weekends when the Courts are closed. The statutes do not mention statements by the affiant over the telephone, but have been interpreted to permit them. The procedure is constitutional. No special circumstances need be shown for issuing a telephonic warrant. Indeed, in Los Angeles County all telephonic search warrants are obtained through a District Attorney Command Post. Under this process, if the deputy DA believes the case is appropriate for a telephonic search warrant after talking with the affiant, the command post investigator sets up a conference call between the affiant, deputy DA, judge, and investigator (who runs the recording equipment). Courts may have different procedures. The following is an example adapted from various counties. The affiant’s statement must be recorded. The judge should be sure to record the conversation, check that the equipment is switched on and operating. If the affiant is recording the conversation, the judge should ask whether the recording equipment is turned on. These procedures ensue an adequate record on review. There can be no doubt that the implementation of the current procedures can be re-tooled to allow for blood draw search warrants for DUI suspects on the roadside or at the police station after arrest.
Sunday, June 30, 2013
In California, a police officer is not the only individual that can effectuate an arrest for a DUI. A citizen’s arrest for DUI is proper when based on the citizen’s observation that the defendant was driving under the influence; in so doing, the citizen may delegate to a peace officer the act of taking the defendant into physical custody. This authority is vested in CA Penal Code 837. For example, in one recent case, the Court ruled a citizen may make arrest for misdemeanor committed in his or her presence Johanson v Department of Motor Vehicles (1995) 36 CA4th 1209, Also in another appellate court case, the Justices opined, a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, called 911 and a police officer and reported his observations to officer who made arrest, and in another published California DUI case, the Court found, an inspector of Department of Food and Agriculture who stopped defendant’s vehicle at inspection station, observed defendant was intoxicated and reported observations to highway patrol officer who arrested defendant. The bottom line is that a suspected drunk driver cannot escape liability because the person making the contact was not law enforcement.
July 4th weekend 2013 promises to be a banner holiday for law enforcement, the state of California has earmarked over a million dollars to checkpoint utilization and enforcement, saturation patrols will make up the remainder of the budget. Los Angeles County alone has implemented a task force approach will will involve numerous city police agencies and a mobile phlebotomist who will be available to collect samples from DWI suspects for DMV and Court purposes. The Torrance police alone have publicly stated that it will be on high alert status with its close proximity to the beach areas . Redondo Beach and Hermosa both have announced a "zero tolerance" to those driving under the influence and has set aside additional resources to deal with the high number of anticipated arrests.