DUI: Blood samples and the need for search warrants

Those of us who handle DUI cases watched this case (Missouri v. McNeely) closely for the potential effects on how DUI cases are investigated. The Supreme Court of the United States (SCOTUS), in an opinion written by Justice Sotomayor, has ruled in this case on the need for a warrant when the officer wishes to obtain a blood sample and the suspect refuses to give one. Before I give away the ending, lets talk about this case.
In Missouri, a police officer (I believe it was a trooper) stopped the defendant a little after 2 a.m. because he was speeding and crossed the centerline several times (a big no-no). McNeely admitted to having a couple of beers, and the officer noted “blood shot eyes, slurred speech, and the smell of alcohol on his breath.” The officer had him do field sobriety tests, which he did poorly on, and asked him to blow into a portable breath-test device, which he declined to use. McNeely was arrested and while on the way to the station, he told the officer he was going to refuse to use the breath-testing device at the station as well. The officer then detoured and took McNeely to the nearest hospital for a blood test. The officer read a standard consent form to McNeely, who refused again. Without attempting to get a warrant, the officer instructed hospital personnel to obtain the sample. Lab testing showed McNeely’s BAC to be .154 %, which is well over the .08% legal limit.
This case hinges on this important point: the officer did not attempt to get a warrant before having the sample taken, and he admitted in court he could have gotten a warrant, and that a system was in place to help him get a warrant as quickly as possible. Missouri argued that the fact that alcohol is metabolized out of the bloodstream at a steady rate almost as soon as a person stops drinking (it decreases by about .015 to .02 % per hour once alcohol is fully absorbed) was enough of an emergency (or exigent circumstance in legal speak) for the officer to be justified to get the sample without taking the time to get the warrant. They further argue that there should be a per se exception to the necessity for a warrant for obtaining blood samples in DUI cases, because metabolism in effect destroys the evidence. That means, basically, they wanted a legal rule that in DUI cases, officers don’t need warrants to get a blood sample because it is being destroyed while the warrant is being sought.
Okay, here it is, what we all were waiting for: the SCOTUS ruled that there is no emergency in a run of the mill DUI such that the officer can’t get a warrant in time. However, they also did not say that officers must always get a warrant in these cases. It has been settled law in Schmerber v. California, 384 U.S. 757 (1966) that officers may in some circumstances obtain a blood sample without a warrant in a DUI investigation if “he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of the evidence.” Id., at 770. Pointedly, the Court says that if there is a car accident, the officer must attend to the investigation of the wreck too, and that it is too much of a burden to make the officer get a warrant in a case like that. The official ruling then, in this case, is that the Court must look at the totality of the circumstances to decide if an officer should have gotten a warrant. The Court found that in today’s age with cell phones, email and standard forms, it should not take much time to get a warrant in many cases, so the evidence will still be relatively intact. In other cases, where the officer is out in the country, far from a judge or paperwork to get a warrant quickly, the warrant is not as necessary. “In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”
So there it is, the state did not get a per se exception in warrants for blood samples in DUI investigations, but it was not told that it had to get a warrant in every case, either.

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