5.6.3

• Jurisdiction: Arizona

§ 5.6.3 Evanescent Evidence – Exigency (including Blood-DUI)

See also § 5.4.2.1, “DUI – Voluntariness of Consent/Implied Consent,” and § 3.2 “Was There a Search” “Personal Characteristics, including Blood, Breath, and DUI.” See also “Medical Blood Draws,” infra.

1. Exigency – Blood (DUI). Drawing blood is a search. State v. Jones, 203 Ariz. 1, 49 P.3d 273 (2002) (in the absence of exigent circumstances, a warrant is needed to take blood samples); State v. Quinn, 218 Ariz. 66, 178 P.3d 1190 (App. 2008) (Div. 1) (because forced extraction of blood by the state constitutes an invasion of bodily integrity, the Fourth Amendment applies).

In Mitchell v. Wisconsin, 139 S. Ct. 2525, 2531 (2019), the Supreme Court discussed “the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol.” The Court stated: “We have previously addressed what officers may do in two broad categories of cases. First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.” Id. It continued:

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant. When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test. And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information. In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities—such as attending to other injured drivers or passengers and preventing further accidents—may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.

“To comply with the Fourth Amendment’s requirement that searches be reasonable, the police may obtain a suspect’s blood sample if (1) they obtain a search warrant founded on probable cause; (2) the suspect consents either expressly, or implicitly to the blood draw, A.R.S. § 28-673(F) and A.R.S. § 28-1321(C); or (3) exigent circumstances exist and the police have probable cause to believe the person violated the DUI statute. The legislature codified the third method in § 28-1388(E), which also requires that the blood be drawn by medical personnel for any medical reason. The issue here is whether § 28-1388(E) applies when the person is receiving medical treatment against his or her will. We agree with the trial court that it does not.” State v. Estrada, 209 Ariz. 287, 290, 100 P.3d 452, 455 (App. 2004) (Div. 2) (internal citations omitted) (court also affirmed the trial court’s finding that the defendant’s blood was obtained by paramedics at the urging of law enforcement, so the paramedics were converted to state agents at the time the blood was seized; based on the record, the paramedics did not seize the blood for the purpose of medical treatment); see also State v. May, 210 Ariz. 452, 112 P.3d 39 (App. 2005) (Div. 2) (blood draw conducted by deputy while defendant and deputy stood at rear of police car was not performed in unreasonable manner).

There is no blanket exception to the warrant requirement in DUI cases. State v. Flannigan, 194 Ariz. 150, 978 P.2d 127 (App. 1998) (Div. 1). While a warrant is normally required to draw a suspect’s blood, it is lawful without a warrant if police have probable cause to believe the suspect is operating a vehicle while under the influence of drugs or alcohol and there are exigent circumstances. Id...