U.S. Supreme Court Rules On Missouri DUI Blood Sample Search

On behalf of The Marks Law Firm, L.L.C. posted in DWI/DUI on Friday, April 19, 2013

This week, the U.S. Supreme Court handed down its decision in Missouri v. McNeely, deciding by a narrow vote of 5-4 that the Fourth Amendment prohibits a per se rule that whenever police have probable cause to believe an individual to have been driving under the influence that the police can procure a blood sample from that individual to determine the blood alcohol level.

McNeely caused the Court to revisit for the first time its decision in Schmerber v. California, a nearly fifty-year-old Warren Court decision that allowed for a limited exception to the warrant requirement for the taking of a blood sample from a person suspected of driving while intoxicated. In Schmerber, the Court reasoned that the risk of delay associated with securing a warrant would be the loss of an accurate reading of the blood alcohol content, because alcohol dissipates from the bloodstream over time. A several hour delay or more in securing a warrant – not unlikely in 1966 – could result in an inaccurate or effectively useless blood alcohol reading. The risk of not securing a sample close in time to the moment of arrest posed an “emergency” that justified an exception to the warrant requirement of the Fourth Amendment.

Since Schmerber, technology has all but eliminated the need for a blood draw. Police regularly use breathalyzer tests which can be administered on site and without the significant intrusion to bodily integrity that a needle blood draw represents. At the same time, a person can refuse a breathalyzer test; also, many defendants have challenged the accuracy of a breathalyzer test, from the method of administration to the quality of the machine used.

The facts of McNeely show how these technological developments have changed the landscape of DUI law and in fact returned the discussion to a need for blood draws. A Missouri Highway Patrol officer, on duty in Cape Girardeau County, stopped McNeely after observing him speeding. Believing McNeely under the influence, the officer conducted field sobriety tests, which McNeely failed. The officer arrested McNeely for DUI. We might ask at this point, what more did the State need? The testimony of the officer would suffice, correct? Yes, but…one can always challenge the observations of an officer, his experience, the conditions, etc., whereas a more scientific and less disputable form of evidence would survive impeachment and lead to more (allegedly accurate) convictions. So, the officer asked McNeely to take a breathalyzer test, and he twice refused, which he has a right to do under Missouri law, even though that refusal could be held against him at trial. Wanting that better evidence, the officer took McNeely to a hospital and forced him to submit to a blood draw from a nurse, even though McNeely had no injury that required medical attention and he was not in an accident. At trial, McNeely challenged the blood draw as a violation of the Fourth Amendment’s warrant requirement. The trial court agreed, and the State appealed to our supreme court, which affirmed the ruling of the trial court, rejecting the call for a per se rule that would always allow warrantless blood draws based upon probable cause the individual was under the influence:

Defendant’s case is unquestionably a routine DWI case. Although his body was working naturally to expunge the alcohol in his system, there were no other “special facts” of exigency in his case. There was no accident to investigate and no injuries to attend to that required the patrolman to expend time, delaying his request of Defendant to submit to blood-alcohol testing. The patrolman could not identify any exigent circumstances and made no attempt to obtain a search warrant. The nonconsensual, warrantless blood draw was taken only 25 minutes after Defendant was stopped. Time-based considerations similar to those in Schmerber were not present here. There were no “special facts” in this case, other than the natural dissipation of blood-alcohol, that indicated the arresting patrolman was faced with an emergency where the delay in obtaining a warrant would threaten the destruction of evidence. He was not justified, therefore, in failing to seek a warrant before drawing Defendant’s blood over his refusal to consent.

The State sought review from the U.S. Supreme Court, noting that some states have interpreted Schmerber to support a per se rule for warrantless blood draws. The Supreme Court granted certiorari and affirmed the judgment of the state supreme court. In an opinion written by Justice Sotomayor, and joined by Justices Scalia, Kennedy, Ginsburg and Kagan, the Court held that Schmerber clearly prefers obtaining a warrant unless the State establishes a true exigency beyond the natural dissipation of alcohol. The Court noted that the development of the warrant process had improved through the use of technology so that police officers could secure a warrant by email or phone in a matter of minutes in most jurisdictions, and by placing the burden squarely on the State, the Court gave the remaining jurisdictions the incentive to implement electronic warrants rather than use their lack of a technology as a means to secure a warrantless blood draw. Because Justice Kennedy only narrowly agreed with the Court, finding only that a per se rule would be unconstitutional, he left open in future cases the chance to revisit the position of the four dissenting justices that would have accepted an exigency version where a warrantless blood draw could occur if the time to secure a warrant would exceed the time it would take to transport the defendant to a hospital for a blood draw. Justice Kennedy did not support the dissent’s position in this case, but seemed to indicate he might consider some variation of it in a case with better facts that justified the exigency. So, McNeely may be a short-lived victory for the Fourth Amendment.

It seems odd that in an age when technology offers the ease of securing a warrant in minutes and other options besides an invasive blood draw that the Court came within one vote of finding a per se rule in favor of warrantless blood draws. At the time it was decided, Schmerber was a controversial decision because it abandoned the warrant requirement so that the State could force a needle into a suspected drunk driver – an invasion most people found beyond the pale. Years of needless deaths at the hands of drunk drivers likely has motivated the current climate that finds a blood draw a small price to pay for saving lives. Maybe from a practical standpoint that position makes sense, which would mean the warrant requirement would be an impediment to common sense law enforcement. But the point of the warrant requirement was not simply to make police work harder; it was to insure against abusive police tactics by placing a neutral magistrate between the State and the defendant. A per se rule eliminates that safeguard and minimizes the purpose of the warrant requirement. If we want practicality, perhaps we should insist that every car have a breathalyzer lock that requires a clean blow to start the automobile. Such a legislative act would survive any constitutional challenge. The rule advocated by the State in McNeely went not for true practicality but limited convenience, making it easier to convict individuals already arrested for DUI and who refuse a breathalyzer test. But expanding blood draws to all suspected drunk drivers could be a very slippery slope – relying on the judgment of police officers to establish their subjective belief in intoxication to force a needle into a suspect’s arm places many people at risk of an illegal search and seizure, an invasion that cannot be undone easily by trying to sue the State after the fact. If breathalyzers fail to protect us as a society from drunk drivers, we must use more reasonable legislative measures that truly address the problem and not just take shortcuts on our individual freedoms to make it easier to secure convictions by having an officer park himself outside a bar and begin blood testing everyone who has had a glass of wine or a beer immediately after they take the wheel.

If you have questions about blood draws and DUI, contact us – we can help.

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