Apex Law Service: DUI Blood Draw.

Hi, James Polk here with Apex Law Service. is our website and we do outsourced paralegal work in the criminal defense arena for Attorneys who hire us to find Clients who need to defend themselves against criminal charges.  If you’re a Client and you need to hire an Attorney you can hire us first and then what we do is we do paralegal hours at a lower rate than most Law Firms.  We charge $150 an hour whereas most Law Firms charge up to $280 dollars an hour.  The Attorneys charge $300 to $350 an hour depending on if it’s the main Attorney or an Associate Attorney.

A new Supreme Court Case was published at the very start of June 2019.  Mitchell v. Wisconsin (2019) (Oyez) was taken up by the United States Supreme Court so they could issue an opinion on whether it was a violation of the 4th Amendment in an Implied Consent State for a Law Enforcement Officer to order a Medical Professional to administer a Warrantless Blood Draw to an Unconscious Suspect.  The issue was not directly tackled in the sense that the implied consent element was only briefly touched upon.  The ruling came down that it is not a violation of the 4th Amendment to take a warrantless blood draw of an unconscious suspect if the proper exigencies were present given the totality of the circumstances.

Let me break this case down to it’s core elements and also summarize the 3 main cases that lead up to this case.  First the main cases that have similar topics: Schmerber (1966) (Oyez), McNeely (2012) (Oyez) and Birchfield (2016) (Oyez).  The core elements of Mitchell v. Wisconsin revolve around the idea that a warrantless search is not a violation of the 4th Amendment when the law enforcement officials have a compelling need to complete other tasks and obtaining a warrant will get in the way of completing those tasks.

The plurality opinion in Mitchell v. Wisconson (2019) (Full Supreme Court Opinion) (which is basically the majority opinion, but because of a concurring opinion and a non-opinion type of dissent in addition to the 3 dissenters, the 3 justices giving the plurality opinion are not considered to be giving the majority opinion, though their opinion is the main take away) states that there are 3 reasons for this compelling need: 1. Safety on the roadway is what is called a “vital public interest”, 2. Setting legislative boundaries for Blood Alcohol Content facilitate safety on the roadway, and 3. Enforcing the BAC limits requires accurate testing so that tests will be accepted in court.  I am not going to cover the concurring opinion or the main dissent.  I will mention that Justice Gorsuch did not opine other than to  say that the case was taken up to rule on implied consent  and since exigencies are what were argued, he would have waited for a case more appropriate for a discussion of exigencies.

The previous cases which dealt with the exigencies exception to the 4th Amendment requirement of a warrant for a blood draw built on each other.  Schmerber v.  California (1966) (Full Supreme Court Opinion) basically says that the fact that alcohol is metabolized and evidence of it’s presence in the blood stream dissipating quickly creates an exigency for a Law Enforcement Officer to order a blood draw of a DUI or Drug suspect.  Missouri v. McNeely (2012) (Full Supreme Court Opinion) basically says that though the dissipation of  the alcohol or drug amount in the blood is a real scientific issue, it does not create a categorical exigency apart from a “totality of circumstances”.  This usually includes an accident or injury.  Birchfield v. North Dakota (2016) (Full Supreme Court Opinion) basically says that the State cannot impose criminal penalties for refusing a warrantless blood draw (do not confuse this with the DMV requirement to take a blood draw or loose one’s license, the DMV is an administrative organization and not a court).  Other cases to look at are: New York v. Belton (1981), South Dakota v. Neville (1983), Griffith v. Kentucky (1987), State v. Bohling (Wis.1993)State v. Shriner (Minn. 2008), Arizona v. Gant (2009) and Davis v. United States (2011).

A Motion to Exclude Blood Evidence Obtained in Violation of a Defendant’s 4th Amendment Rights relies heavily on proving that the Law Enforcement Officer Willfully and Knowingly violated the 4th Amendment Right of the Defendant.  The exclusion of the evidence is only done as a preventative measure to keep Law Enforcement Officers from continually violating the 4th Amendment Rights of people they suspect of crimes and not as a redress for the wrong of having violated their 4th Amendment rights.

Redress can be sought for the violation of one’s 4th Amendment Rights via what is called a Constitutional Tort Action against the Law Enforcement Officer based on 42 U.S.C. 1983.  The code basically says that the Tort has been committed and the Agent of the State is liable for the Constitutional Tort if they have, under color of law, deprived a Citizen of their Constitutional Rights.  If you have a warrantless blood draw excluded from a DUI or Drug case you have a good chance of then suing the Law Enforcement Officer for damages based on 42 U.S.C. 1983 and/or the Law Enforcement Agency based on 5 U.S.C. 702 which is in many ways the organizational level of the Constitutional Tort.

A lot of the work we do is DUI work.  San Diego County has a lot of microbreweries and a lot of cool little places.  We have just like a really unique culture in that sense.  Because of this, people get pulled over and charged with DUI charges, but the people are not always guilty, and so hiring us and saving yourself money is the thing to do.  We really believe in the access to justice element of our business structure.  We know the Attorneys who we have as clients are just top-notch Criminal Defense Attorneys.

We look forward to helping you go through this very touchy situation and we look forward to getting you all the way through and helping you move on with your life out and past this situation.  Thank you for tuning in to


James F. Polk

Senior Administrative Coordinating Paralegal for Apex Law Service


oh, p.s. Watch this funny stand-up comedian talk about DUI Lawyer Commercials.