Q: Can CHP be liable for not conducting blood test in fatal accident?

A: I’m very sorry for your loss, but No. Generally speaking the police are immune from lawsuits for being bad/lazy/incompetent at their investigative jobs.

Perhaps the driver’s employer could have liability or the state for the condition of the road.

Under no circumstances should you settle a wrongful death case without legal representation. Reach out to any lawyer on here that seems reputable if that’s what you are in the middle of doing.

A: WHY IS THE REPORT TAKING SO LONG?

Accident reports involving injury are often completed by the end of the work shift. But it's common for accident reports involving fatal accidents to take 4-months or more to complete. In fact, some reports (involving unknown drivers) may never be completed! The reason for the delay is because investigators need to determine your husband's cause of death. It's not as simple as saying another vehicle struck your husbands car and killed him (i.e. blunt force trauma). Police have to consider "primary AND secondary" factors that may have contributed to the cause of death. So, CHP must wait for the final Coroner's Report before they (CHP) can finalize their investigation. Add into the mix a non-cooperative witness who refuses to speak to the police (for a multitude of reasons) and you end up with massive delays.

IT'S THE CONSTITUTION

People have a 4th amendment right against unreasonable search and seizure. Police cannot take a blood sample without probable cause that the suspect has committed a crime while under the influence of blood and/or alcohol. Taking blood from a suspect constitutes a seizure. Therefore, police cannot legally seize a driver's blood... just because they were involved in a fatal accident. I learned this lesson when I was a new lawyer (about 36 years ago). I have a very similar case. I told the investigating CHP officer that they (CHP) should obtain blood sample's from everyone/anyone who is involved in a fatal collision. I was reminded that citizens have constitutional rights that protect them from seizures without probable cause. Therefore, the question herein is... did CHP have probable cause to believe the driver was under the influence of drugs and/or alcohol? If no... then CHP was correct in not taking a blood test.

In fatal accidents involving no probable cause... I proposed CHP adopt a statewide policy that requires them to simply ask if the driver will "consent" to providing a sample of their blood. I was told NO. Such a policy would create additional legal problems.

ALCOHOL OR DRUGS HAS NO BEARING ON CIVIL LIABILITY

Police investigate accidents to determine if a crime has been committed. Right? Police are only involved for purposes of a criminal investigation. But for purposes of a civil claim, California courts look to actual cause of the accident. So, for purposes of determining liability in a civil lawsuit, it doesn't really matter if the driver fell asleep, was DUI, driving with no hands or watching a video on their cell phone. They caused the accident so they would be liable for compensating you for all your financial (and pecuniary) losses. Period. The above issues only come into play when determining the amount of damages... not liability.

WILL THE DRIVER BE CHARGED WITH A CRIME?

It depends upon how egregious the criminal conduct is. It's been my experience that investigations in rural areas are more likely to result in criminal referrals, while investigations in densely populated areas, will require a greater degree of egregious conduct to justify a criminal referral.

NO JAIL TIME

Assuming the driver merely fell asleep... CHP will probably refer the matter to the district attorney's office to determine if the driver should be charged with a crime. Even if the driver is charged/convicted of vehicular manslaughter, I doubt he/she will see the inside of a cell. Most likely they will be sentenced to unsupervised probation.

CHP LIABILITY

A lawsuit against CHP won't survive day one. You have not stated a single fact to establish probable cause to conduct a blood test. Without probable cause... police have NO legal basis to take blood.

FYI

Run an asset check on the driver before signing anything. Read the terms of your policy. If you have "uninsured" motorist coverage and your policy is greater than the driver's policy, then you may be able to recover under the "underinsured" motorist provision in your policy.

A: First, I want to express my deepest condolences for the loss of your husband in such tragic circumstances. Losing a loved one in an accident is devastating, and the frustration you feel about the lack of a finalized report and potential evidence gathering is completely understandable.

Regarding CHP liability, it's generally very difficult to hold law enforcement agencies liable for discretionary decisions made during investigations. Police have broad immunity for how they conduct investigations, including whether to perform blood tests. The courts typically defer to officer judgment unless there was a clear statutory requirement that was willfully ignored. You would need to prove both that CHP had an absolute duty to conduct a blood test and that their failure directly contributed to your damages beyond what the accident itself caused.

Your most productive path forward may be to focus on the wrongful death claim against the driver, possibly exploring whether his prior accident constitutes a pattern of negligence. You might want to consult with an attorney who handles governmental liability claims to evaluate your specific situation, as they can advise on the California Tort Claims Act requirements and strict filing deadlines. Remember that claims against government entities have additional procedural hurdles and tighter timelines than ordinary lawsuits, so prompt legal guidance is crucial.