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 ....