Cal.2: Continued combativeness of DUI suspect was exigency for no BAC warrant

Defendant was driving a semi that had a head-on collision with another vehicle where defendant was driving on the wrong side of the road. He stopped nearly ½ mile from the accident. When police arrived he was combative and profane the entire time, and was hogtied for over two hours from the scene to the police station to keep him from fighting. On the totality, there was exigent circumstances to dispense with a warrant for his blood. People v. Toure, 2015 Cal. App. LEXIS 2 (4th Dist. January 5, 2015):

In the present case, applying the case-by-case approach to determine the totality of the circumstances, we conclude that exigent circumstances justified the nonconsensual warrantless blood draw: there was a traffic accident in which at least one person sustained injuries approximately 2000 feet from where the defendant finally came to a stop after blowing the tire of his semi-truck. The defendant was combative, requiring the administration of physical restraints, which delayed their investigation of the accident and prevented the officers from conducting field sobriety tests, unlike the defendant in McNeely. Defendant refused to provide officers with information, yelling profanities at them, thereby preventing the officers from determining when he had stopped drinking, also unlike the defendant in McNeely.

The time it took to subdue defendant and transport him to the CHP station, after conducting a brief investigation of the accident scene consumed approximately two hours: The original call came at 9:07 p.m., and they were back at the station with defendant in custody at 11:03 p.m. The officers wanted to get the defendant to the station as soon as possible because they were aware that the restraints were uncomfortable, but could not be removed until he was booked in the jail.

In this case, it would have been impossible to “calculate backward” to determine the defendant’s blood alcohol level at the time of the accident. The officers were prevented from discovering when the defendant ingested his last drink, the starting point for such a determination, due to the defendant’s combativeness and refusal to cooperate. Further, the time it took to conduct their investigation of the accident scene and to subdue the defendant threatened the destruction of the evidence. (McNeely, supra, 133 S.Ct. at pp. 1560-1561, citing Schmerber, 384 U.S. at pp. 770-771.)

The situation facing the officers was not one in which the sole consideration was the natural dissipation of alcohol in the blood as the sole basis for finding an exigency. Instead, the delays involved in obtaining a warrant (we can take judicial notice that the closing of branch courts in San Bernardino County impacts the time required to obtain a warrant), the unavailability of information relating to when defendant stopped drinking, in addition to the natural dissipation of alcohol in the blood, coupled with his violent resistance, established exigent circumstances.

Note the inconsistency with this case decided about the same time in Tennessee.