Appeals Decision on Factually Incorrect Warrant Affidavits. Do Errors or Omissions Undermine a Warrant’s Validity?

By Robert Phillips 
Deputy District Attorney (ret.) 

Legal Issues and Case Citation

• Blood draw search warrants in a DUI case
• A Franks evidentiary hearing and when it’s not legally necessary
• Correcting a search warrant affidavit by adding omitted facts and retesting for probable cause

Rule: In a search warrant application for a blood draw in a felony DUI case, an officer’s failure to inform a magistrate of the arrestee’s request for a breath test does not undermine the validity of the search warrant. In such a case, a court is required to merely add the omitted, material information to the affidavit and retest it for probable cause. An evidentiary hearing pursuant to Franks v. Delaware is legally unnecessary when there are no contested evidentiary issues to be decided.

One-Minute Summary: The defendant was involved in a fatal traffic collision, in part caused by the defendant driving at 129 miles per hour. Upon determining there was probable cause to believe the defendant was under the influence of alcohol, he was read the statutorily required implied consent admonition, pursuant to Vehicle Code § 23612, and as contained in the DMV DS-367 form. The defendant declined to submit to a blood or breath test. As a search warrant asking ....