A U.S. Supreme Court decision on the admissibility of DUI blood-tests could affect important evidence in the vehicular manslaughter case of a former Stanford Graduate School of Business student.
Zachary Katz, 27, allegedly drove in the wrong direction on U.S. Highway 101 on Oct. 5, 2013, and struck a taxi head on, killing one of the passengers and seriously injuring another, both of whom were ejected from the vehicle.
A preliminary alcohol test allegedly found a screening of 0.15/0.16 percent. A blood test found a 0.13 percent alcohol reading at the hospital two hours later, according to San Mateo County District Attorney Steve Wagstaffe. The threshold for a DUI is anything above 0.08 percent.
But the Supreme Court in June ruled that police should obtain a warrant for most DUI blood tests prior to drawing the blood. Unlike a breathalyzer test, which utilizes air that a suspect would normally breathe out, a blood test is invasive and violates the Constitution's Fourth Amendment against unreasonable searches and seizures, the justices found. And unlike a breathalyzer test, a blood test gives law enforcement a sample that can be preserved and from which other personal information might be extracted, the justices wrote.
The Supreme Court's opinion in the Birchfield vs. North Dakota decision could have implications for Katz. His attorney, Geoff Carr, said he will argue on Sept. 16 to throw out the blood evidence -- this time based on the Birchfield ruling, which was delivered on June 23.
The high court's decision builds on an argument that Carr made last fall to throw out the blood test. Carr had argued that the blood-draw results were not admissible because the California Highway Patrol officer did not read Katz the implied-consent law prior to taking the blood sample.
San Mateo County Superior Court Judge Barbara Mallach concluded on Oct. 27, 2015, that the blood draw was therefore involuntary and violated Katz's Fourth Amendment rights.
The California First District Court of Appeal reversed Mallach's ruling on March 29, 2016, finding the blood evidence admissible and ordering the case to return to Superior Court for a new trial date. The California Supreme Court refused to hear the defense's appeal on June 15, just days before the federal court's ruling.
Carr said the ruling signals an interesting shift by a conservative court.
"It is a briefing that will change the scope of the inevitable discovery doctrine. There is a paradigm shift of how the law is being (interpreted), and we are in the middle of that," he said.
Carr had originally argued to toss the blood test based on a prior Supreme Court decision, Missouri vs. McNeely. In that case, the justices ruled against the argument that taking a blood sample without a warrant was imperative because the natural dissipation of alcohol from the bloodstream constitutes as a destruction of evidence, and that gathering that evidence is timely.
The Supreme Court has previously upheld warrantless searches when there is a threat to a law enforcement officer or if evidence is likely to be destroyed if not captured immediately -- so called "exigent circumstances" -- but it did not think that doctrine applied to DUI blood testing.
The McNeely case found that the metabolic reduction of alcohol in the bloodstream does not always constitute an exigent circumstance that justifies taking a blood sample without a warrant; a warrantless search by blood test must be justified on a case-by-case basis, the justices noted.
In Birchfield, the justices looked deeper into another doctrine that they had not explored in the McNeely case: a longstanding rule that a warrantless search may be conducted "incidental" to a lawful arrest. In other words, when a person is placed under arrest, the police can search for drugs or weapons on the person -- or ask for a breathalyzer test after observing that a person's driving is impaired.
The justices did not buy the argument that blood tests could be taken as incidental to an arrest, although breathalyzer tests could.
Breathalyzer tests require a suspect to breathe into a tube to measure alcohol-concentration levels. They constitute a "negligible" physical intrusion that is outweighed by the great danger posed by a drunk driver, the justices wrote.
The justices rejected the assertion that breathalyzer tests are a significant intrusion because they go beyond capturing ordinary exhalation that is routinely exposed to the public. Instead, they require a sample of deep-lung air. But the justices reasoned that since humans can't hold their breath for more than a few minutes, inevitably they would exhale even deep-lung air.
But blood tests are a different matter. They require a "piercing of the skin" and compel an invasive intrusion, they noted.
"While humans exhale air from their lungs many times per minute, humans do not continually shed blood," the justices wrote.
And significantly, a blood test, unlike a breathalyzer test, "places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC (blood alcohol concentration) reading," they said.
A breath test already offers law enforcement a tool for determining if a person is driving under the influence. Those results are admissible in court, the justices wrote. In the event that a person who is clearly impaired but has tested negative for alcohol in a breathalyzer test, nothing prevents police from seeking a warrant for a blood test to determine if other illegal substances are in the blood, the justices said.
In the Birchfield case, "there is no record ... that a breath test would have failed to satisfy the State's interests in acquiring evidence to enforce its drunk-driving laws against Birchfield," the justices wrote.
Robert Weisberg, co-faculty director of the Stanford Criminal Justice Center, said there is "no question" that the two cases will change the way law enforcement will conduct blood tests.
"Officers will have to get a warrant, a significant inconvenience. It takes time, paperwork, and there is a chance, although relatively small, of a judge refusing to grant the warrant," he said.
In many cases, Weisberg said police will figure breath tests are good enough and will forego the blood test. But there is no good data on the relative success in court of breath versus blood tests, he added.
Judges will be tough on warrantless blood-test evidence, Weisberg said. But there could be exceptions. In cases where the "jaws of life" were needed to extricate a suspected drunk driver, exigency could be argued as a cause for not getting a warrant because of the time it took to get the person out of the vehicle.
San Mateo County District Attorney Wagstaffe did not return a request for comment on the implications of the ruling.
But Carr said that breath tests are accurate and admissible forms of evidence if done correctly and by following proper protocols. But the preliminary alcohol screening device used in the Katz case was taken in a way that may not be admissible.
The combination of the McNeely and Birchfield rulings constitute a huge change in what is a legal search and what isn't, and that is due in large part to digital technology, Carr said.
For a long time police had to appear before a judge and wait for a warrant to be signed. But now law enforcement can get an electronic or telephone order from a judge on call, and they will issue one within minutes, he said.
"A lot of exceptions were based on time sensitivity, which once streamlined the law in favor of government. But there is no exigency anymore," he said.