Local judge Gerald A. Williams discusses the Arizona Supreme Court changes to how evidence can be collected in DUI cases

Search & Seizure 

Local judge Gerald A. Williams discusses the Arizona Supreme Court changes to how evidence can be collected in DUI cases.


For nearly five decades, Arizona law has allowed the police to obtain a blood sample from a DUI suspect who is unconscious. On March 9, 2017, the Arizona Supreme Court changed the law in this area. Some background is required.

The Fourth Amendment to the U.S. Constitution prohibits the government from unreasonably searching and seizing people and their property. A blood draw is often considered to be a search for Fourth Amendment purposes.

In the context of a DUI investigation, unless the suspect expressly consents, law enforcement agents can usually only obtain blood samples from a DUI suspect: (1) when they have a warrant, (2) under Arizona’s implied consent law; or (3) under the medical blood draw exception in A.R.S. § 28-1388(E).

In State v. Havatone, the defendant allegedly drove his SUV into an oncoming vehicle on Route 66 near Kingman. After the collision, the driver of the other vehicle apparently saw the defendant get out of the SUV and lie down behind it. When highway patrol troopers arrived, the defendant confirmed that he was driving the SUV.

After he was airlifted to a hospital in Las Vegas, and without getting a warrant, a trooper contacted law enforcement officials in Las Vegas and requested they obtain a blood sample. The defendant was unconscious when his blood was drawn. It came back with a BAC of .212.

The Arizona Supreme Court started its analysis by first looking at a U.S. Supreme Court case from 2013 called Missouri v. McNeely. It held that in DUI investigations, the mere fact that someone’s blood alcohol content will dissipate over time is not, by itself, enough to justify obtaining a blood sample without a warrant.

Our state supreme court went on to hold Arizona’s informed consent statute partially unconstitutional. More specifically, it held that law enforcement agents can only obtain blood samples from unconscious suspects under Arizona’s informed consent law if some type of case specific exigent circumstance is present. An exigent circumstance involves an emergency when the police have probable cause but insufficient time to get a warrant.

The defendant’s felony convictions were reversed. The case was sent back to the trial court to determine whether Arizona or Nevada law applies. If a good faith exception to the search warrant requirement does not apply to this case, then the defendant would be entitled to a new trial; but the prosecution would not be able to offer the results of the blood test as evidence.

In the future, police officers may be much more likely to request a search warrant in DUI cases before having a driver’s blood tested without consent. If every case is to be judged on case specific facts, then it may be difficult for an officer to know whether the failure to get a warrant will result in the evidence being suppressed.


What Does The Fourth Amendment Protect?

The Fourth Amendment reads in full, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Nearly every word has been the subject of litigation.

This single sentence is the foundation for the requirements for search warrants, for stop-and-frisk actions, for wiretaps, and for most privacy law. It’s the first line of defense that people have against unreasonable searches and seizures from the government.

A search is an intrusion by a government official into an area where someone has a reasonable expectation of privacy. However, there are several exceptions to the requirement to obtain a search warrant. One is police officers are allowed to make a warrantless search if they are in hot pursuit of a fleeing felon.

A seizure is the exercise of control by a government official over a person or over property. An arrest is an obvious example of a seizure.

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