In 2014, Attorney Donald Gray Drewry took on a DUI case in San Jose, California for a new client. Mason made a wrong turn onto a one-way street, and immediately turned into a parking lot. Unfortunately, there was a police officer there who pulled the client over and gave Field Sobriety Tests.
The client was first asked to complete a series of exercises — walking in a straight line heel to toe, tipping the head back slowly and touching the tip of the nose with the point of his finger, and similar activities that are designed to test someone’s coordination and balance. The assumption is that when one is inebriated, one can’t keep one’s balance very well while doing these tests and may stumble and or trip. The client passed the tests. When the officer then requested him to blow into a portable breathalyzer test, the client politely refused and was promptly arrested and forced to submit to a blood test.
The street test is also known as the PAS test and is frequently administered by California police officers. While it can give a general idea of the blood alcohol content (BAC), the results are almost never reliable and can frequently overstate the BAC. The officer did not fully explain the rights of a chemical test to Mr. Drewry’s client, and an illegal blood sample was taken.
The warrantless blood draw has been debated in DUI Law for decades. It hinges on the argument between implied consent and actual consent. Officer Stromska, the arrested officer, did not properly advise her of her right to refuse the street test. The court found that he coerced her into providing a blood sample when in fact she never gave her actual consent to have a blood sample taken.
Mr. Drewry did a motion to suppress the blood in the pre-court. The motion was at first denied. Mr. Drewry appealed that ruling, and two years later, the Pre-trial decision was reversed, and the blood was suppressed; there are no other chemical tests.
Since the decision in 2016 (published in February of 2017), DUI lawyers all over the State of California are using the case that Mr. Drewry won for his client to try to help their clients. The decision by the appellate court has determined that while the court may accept warrantless breath tests, warrantless blood draws are not permitted.
“Again: implied consent is NOT actual consent. People v. Mason,” posted by Eric Ganci on April 9, 2017, http://ganciesq.com/2017/04/09/again-implied-consent-is-not-actual-consent-people-v-mason/
“PAS Test vs. Chemical Breath Test,” posted by Ted Burgess, posted on November 3, 2017, https://www.losangelesduilawyer.org/los-angeles-dui-info/pas-test-vs-chemical-breath-test/
“Birchfield v North Dakota,” The Supreme Court of the United States, June 23, 2016, https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf