DUI Blood Draws and Implied vs. Express Consent, a Complex Issue

• Implied vs. express consent to a DUI blood draw 
• Veh. Code § 23612(a)(5), DUI blood draws, and exigent circumstances 
• Good faith 

• Blood draws from a DUI suspect may be performed only after obtaining either a search warrant, a valid express consent, or under exigent circumstances with probable cause.
• The Vehicle Code’s implied consent provisions under V.C. § 23612(a)(5) do not constitute an express consent.
• A DUI suspect being unconscious, by itself, does not necessarily provide an exigent circumstance allowing for a warrantless blood draw.

Defendant was involved in a fatal car crash on March 25, 2018, at around 11:30 p.m.  Responding officers found a Dodge Charger upside down in the roadway just north of the intersection of Ash Street and El Norte Parkway in Escondido.  (Irrelevant fact #1:  This is about two miles from where I lived for some 20 years of my 28-year tenure as a San Diego Deputy D.A.)  Defendant—apparently “uninjured but shaken”—admitted to officers that he had been the driver of the Charger.  A damaged second vehicle—a Ford Mustang—was in the front yard of a residence immediately adjacent to the intersection.  In the Mustang were two individuals; one deceased and the other—a 15-year-old boy—seriously injured.  The investigating officer contacted defendant at the scene and although not detecting any overt signs or symptoms that he might be under the influence of alcohol or drugs, he administered a so-called “horizontal gaze nystagmus field sobriety test.”  The officer noted a “just a faint jerking in (the defendant’s) eyes, at the extremes.” (Per footnote 4: “Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotary. . . . An inability of the eyes to maintain visual fixation as they are turned from side to side [in other words, jerking or bouncing] is known as . . . HGN. . . . Some investigators believe alcohol intoxication increases the frequency and ....