{"id":19922,"date":"2015-12-12T09:05:44","date_gmt":"2015-12-12T14:05:44","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=19922"},"modified":"2015-12-12T09:05:44","modified_gmt":"2015-12-12T14:05:44","slug":"cal-5th-schmerber-applies-pre-mcneely-and-defs-statement-he-was-withdrawing-from-meth-was-exigency-for-a-blood-draw","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=19922","title":{"rendered":"Cal.5th: Schmerber applies pre-McNeely and def’s statement he was withdrawing from meth was exigency for a blood draw"},"content":{"rendered":"

Schmerber not McNeely was the law at the time of the blood draw here, and Davis means that Schmerber applies. Here, defendant said to a nurse he was withdrawing from methamphetamine and that reasonably was exigency. People v. Jimenez<\/a>, 2015 Cal. App. LEXIS 1110 (5th Dist. Dec. 11, 2015):
\n<\/p>\n

Here, the record shows defendant, after having run over two pedestrians with his truck, informed a hospital nurse he “was withdrawing from methamphetamine.” Paglia, who was present, overheard this remark. In “objectively reasonable reliance” (Davis, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative, Paglia could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence'” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural evanescence of methamphetamine in the bloodstream. His request for a blood draw to secure evidence of defendant’s drug intoxication fell “within the parameters of the ‘good faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.) Therefore, denial of the motion to suppress was proper.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Schmerber not McNeely was the law at the time of the blood draw here, and Davis means that Schmerber applies. Here, defendant said to a nurse he was withdrawing from methamphetamine and that reasonably was exigency. People v. Jimenez, 2015 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[55,3,11],"tags":[],"class_list":["post-19922","post","type-post","status-publish","format-standard","hentry","category-drug-testing","category-emergency-exigency","category-good-faith-exception"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/19922","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=19922"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/19922\/revisions"}],"predecessor-version":[{"id":19923,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/19922\/revisions\/19923"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=19922"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=19922"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=19922"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}