So you were charged with a DUI, invoked your right to refuse a breath test and a blood draw was obtained pursuant to a search warrant? What is the process of obtaining a warrant for my blood? How can we fight it at trial? In this column, we will address all of these issues and more.
We will first begin with the search warrant for the blood draw itself, as this is the prerequisite step in obtaining the blood draw in the first place. In order for an officer to obtain a blood draw pursuant to a DUI investigation, he must have probable cause to do so. I.C. 9-30-6-2 requires law enforcement to have probable cause to believe a person has committed an offense under I.C. 9-30-5 (Indiana’s DUI statute) before requesting they consent to a chemical test.
So what does probable cause in a DUI investigation look like?
There are many different examples of intoxication cues that an officer will look for in a typical DUI investigation based on the Nation Highway and Traffic Safety Administration (NHTSA) manual regarding DUI investigations. Beginning with the initial stop, typically in a DUI investigation the officer will look for signs of impairment while driving. These signs could be any of the following or any combination thereof: vehicular accident, swerving, crossing the center line, merging without signaling, fast start, slow start, breaking too early or too late, speeding and any other moving violation that could be caused by impairment. After pulling you over for the traffic infraction, there are many more different cues that an officer will look for when approaching your vehicle. These cues might consist of the following: failure to comply with simple directions like obtaining your driver’s license or proof of insurance, fumbling or failing to find either piece, blood shot eyes, slurred speech, smell of alcohol on your breath or person, open containers in plain view. And when you exit the car, he will look for the following: unsteady gate, leaning on the car, unsteady balance.
If the officer finds any of these cues or any combination thereof, he will probably ask you to perform field sobriety tests (SFST’s) including the Horizontal Gaze Nystagmus (HGN), the walk and turn and the one legged stand. After the conclusion of the SFST’s he will then proceed to ask you to blow in a Portable Breath Test device (PBT). At the conclusion of these tests, so long as probable cause has been found, he will then read you implied consent and ask for you to consent to a certified chemical breath test at the police department.
All of the above would be used in attempting to establish probable cause for a DUI charge. In the event that the person refuses the chemical breath test (which you have a right to do), you will have an automatic license suspension of 1 year for a first time offender, but the officer will likely then attempt to obtain a search warrant for your blood in order to test for alcohol content.
The question then becomes, what impairment cues does the officer have to reach the necessary probable cause requirement to obtain a search warrant for your blood?
The officer will use a totality of the circumstances in determining probable cause using all of the possible cues discussed above. Obviously, the more impairment cues the officer observes, the stronger the probable cause for a search warrant.
So the question then becomes, well what exactly constitutes the minimum requirements for probable cause in a DUI investigation?
In Herron v. State 44 N.E.3d 833 (Ind.App. 2015), a recent Indiana Court of Appeals case from Marion County, IN, the Court reversed a conviction for DUI due to a lack of probable cause in a blood draw DUI search warrant. The Court overturned Ms. Herron’s conviction due to the fact that the officer failed to articulate the necessary facts constituting the requisite elements of the DUI statute to meet the probable cause standard. Specifically, the officer failed to articulate the element of operation.
The Court went on to state that when a magistrate decides whether to issue a warrant based on the officers observations in a DUI investigation, they must make a practical, common sense decision whether, given all the circumstances, there is a fair probability that evidence of a crime will be found. Id. at 833.
According to the case law then, the minimum requirement for probable cause in a DUI investigation would be specific articulable facts regarding sings of intoxication creating a fair probability that all of the elements of the crime of DUI, including both intoxication and operation have been met.
Therefore, in the event that a person refused a chemical test and a search warrant was issued for your blood, if the probable cause affidavit for the search warrant lacks either articulable facts for the elements of intoxication or operation, then the search warrant should be deemed invalid in court, typically at a suppression hearing which could ultimately result in your case being dismissed.
Every DUI is different. And every DUI investigation is different. There are many circumstances where DUI investigations lack probable cause for search warrants specifically where officers lack articulable facts in probable cause affidavits that do not give rise to the requisite level of probable cause needed for a magistrate to sign off on the warrant.
If you or someone you know has been charged with a DUI resulting in a search warrant for a chemical or blood test, you need an experienced DUI trial attorney at your side. Kevin Potts, owner of Potts Law LLC is a member of the National College of DUI Defense, a former prosecutor and an aggressive and creative trial attorney. You need an attorney that will determine whether evidence of a blood draw should be suppressed based on an invalid search warrant. Call Potts Law LLC today for your free consultation: 317-951-0087 email: kevin@pottslawllc.com
