Sunday, June 30, 2013

Impossible to Get a Search Warrant in California For a Blood Draw? Not So Says A Long Beach DUI Attorney

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.