24-hour search warrants for blood

LIHUE — The Fifth Circuit Court on Kauai is on its way to becoming the first in the state to issue round-the-clock telephonic search warrants for blood draws in drunken driving cases.

“We want to get ahead of the curve,” said Prosecuting Attorney Justin Kollar. “I expect the other circuits will follow along quickly; we have been in close communication with them to develop procedures for police to obtain the warrants.”

Maui County Prosecuting Attorney John Kim said his office is “forming our strategy to implement telephonic search warrants in light of the current case law.”

But in Honolulu, that’s not the case, said Dave Koga, a spokesman for the Honolulu Department of the Prosecuting Attorney.

“At this time, Honolulu is not incorporating telephonic search warrants in DUI enforcement,” Koga said. “There are procedural issues specific to Honolulu — the most problematic being that police make anywhere from 10 to 20 DUI arrests per night — that would have to be worked out with District Court before the process could be implemented.”

Prosecutors on Kauai have trained the Kauai Police Department on the several steps necessary to get a warrant from an on-call district judge, Kollar said. Police will have three hours to get a warrant for blood draws, Kollar said.

In an internal memo from the Office of the Prosecuting Attorney’s Office to the KPD dated Jan. 4, prosecutors give guidance on how to obtain search warrants for mandatory blood draws and in cases where suspected drunken drivers refuse to submit to breath or blood testing.

Prosecutors tell officers in the memo that “in the interest of caution we are now formally recommending that police attempt to get search warrants for blood unless it is not possible to do so within the three-hour window referenced in HRS 291 E-3 and that exigency is documented in the police report.”

Hawaii Revised Statutes Section 291 E-3 states the impairing drug has to be detected “within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person’s blood, breath or urine” to be competent evidence.

The memo refers to several recent rulings — State v. Won, State v. McNeely and local Kauai District Court cases — that have caused prosecutors and the courts to backtrack how they look at DUI cases.

To get the search warrant for the blood, officers will have to make a call to a district court judge, and instead of the usual written affidavit, read aloud “a sworn oral statement, in person or by telephone,” according to the memo.

The statement “shall then be recorded and transcribed, and such sworn oral statement shall be deemed to be an affidavit for the purposes of this rule,” the memo reads.

That call from the officer to the judge can come from the officer’s phone to the judge’s landline or cellphone at any hour of the day, Kollar said. If the officer cannot obtain the warrant within the three-hour limit, the officer needs to document the reason, he said.

Officers can hold the suspected drunken driver at the scene of where the alleged violation took place or, in the case of an accident, can take them to get medical attention at the hospital, Kollar said.

Prosecutors in the memo tell police that unless there is an emergency, or the blood is given voluntarily, then a warrant is required.

“You now need a warrant before you can draw blood whether there was an accident or not, or consensual or not, unless there are exigent circumstances, but the mere face of time passing and blood alcohol diminishing in a suspect’s bloodstream isn’t necessarily an exigent circumstance,” prosecutors said to police in the memo.

Although “there is a judge available 24 hours a day, seven days a week,” Kollar said exigent circumstances or an emergency could be when a judge cannot be reached and the three-hour time limit is running out.

Case law, he said, allows officers to obtain the mandatory blood draw search warrant in that instance.

KPD will have a schedule and know which judge they should be calling at whatever time, Kollar said.

Once KPD officers have pulled over a suspected drunken driver, or arrive at the scene of an accident, they will have just three hours to obtain the search warrant and use one of their consent forms — long or short form — which have recently been amended to comply with a recent court ruling, State of Hawaii v. Won.

In Won, the Hawaii Supreme Court said Yong Shik Won on Oahu, a case which began in April 2011, was coerced into agreeing to a breath test because officers told him he could either submit to a breath test to check his blood alcohol content or go to jail, be convicted and be subject to 30 days of imprisonment for the crime of refusal to submit to a breath, blood or urine test, according to court records. The court said the language in the consent form was coercive and Won’s consent to a breath test was involuntary. His conviction was recently overturned.

In the OPA’s memo, KPD officers “investigating crashes where probable cause exists for a negligent homicide, negligent injury or OVUII charge” must first try to get consent for the blood or breath test “even if the person is unresponsive or semi-responsive.”

Police must still take the steps to obtain the search warrant, Kollar said.

“We just want the patrol officers to be consistent,” Kollar said. “Just read it every time and it won’t be a problem. Presumably if the officer finds the person to be unresponsive, they move on to part two.”

The next step for officers is to call the judge and read them an affidavit verbatim over the phone or in person, according to the memo.

“The officer must record the conversation and later transcribe it,” the memo reads. “The recording and the transcription must be filed with the court with the return and any other documentation relating to the warrant.”

After the time limit is up and the officer is not able to get the search warrant for the blood test, “then the officer may request the mandatory blood draw. In the officer’s report, the officer must document why the warrant could not be obtained within the three-hour window,” the memo reads.

In cases where someone under arrest refuses to consent, then the KPD officer has to implement a “no refusal” policy and seek search warrants for blood pursuant to this procedure for all motorists who refuse to submit to testing,” the memo reads.

Kollar said he his prosecutors have been training police on the procedure for weeks and it should have been implemented by the Jan. 4 date on the memo.

Sarah Blane, a spokeswoman for the county, said although the memo was sent to police in early January, KPD has its own internal policies and procedures it has to implement within the department to prepare patrol officers to obtain telephonic search warrants.

KPD patrol officers who are taking part in the prosecutor’s training are still being briefed on OPA’s recommendations, she said.

“KPD officials are in receipt of OPA’s recommendations and continue to work with OPA on developing best practices moving forward,” Blane said.

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Michelle Iracheta, cops and courts reporter, can be reached at 245-0424 or miracheta@thegardenisland.com.

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