Blood Draws May Require a Warrant in Some Suspected Drunk Driving Cases

By: Brent Scott

If you are of the opinion that our government is already too invasive (think PRISM – the clandestine mass electronic surveillance data mining program launched by the NSA back in 2007), you may not want to read any further.  Did you know that by merely obtaining a driver’s license you are also consenting to a blood test? 

Michigan’s implied consent law provides that a person operating a motor vehicle is considered to imply his consent to have chemical tests of his blood, breath, or urine to determine the amount of alcohol or a controlled substance if the person is suspected of operating while intoxicated.

Now, courtesy of a recent SCOTUS decision, the pendulum may be swinging in the other direction.  In a 5-4 decision, authored by Judge Sonya Sotomayor, the Supreme Court agreed with Tyler McNeely’s defense counsel that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment.  

A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.  However, as our SCOTUS likes to do, it opened the door for an "exigent circumstances" exception in some drunk-driving situations where a warrant would not be required.

Specifically, in McNeely, the Defendant was stopped for speeding.  McNeely was asked to submit to an alcohol breath and blood test, both of which he refused.  When the hospital staff took a blood sample without the arrested driver’s consent, the result was that McNeely's blood-alcohol levels were above the legal limit; he was charged with driving while intoxicated. 

McNeely’s defense lawyer moved to suppress the test arguing the blood draw constituted a search and the officer needed to obtain a warrant.  After all, the officer testified at the suppression hearing that he had time to obtain a warrant, but simply chose not to.   

So where does this leave us?  It appears that prosecutors are barred from arguing that implied consent searches are “per se” valid and constitutional because a blood draw is a "search".

Justice Sotomayor’s decision states:

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant…. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

However, as the loony Lee Corso likes to say, “not so fast my friend.”  The Court also reiterated that police are not required to get a warrant if there is some true exigency:

 We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect…” and …"exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.

Well that certainly clears it up for me…   

From a practical standpoint, it is tough to tell how the McNeely ruling will play out on the highways and byways of America.  On one hand, metabolism does not automatically create an exigency thus, a warrant is called for.  On the other hand, since a warrant takes time that creates a delay where alcohol will be metabolized and eliminated from the suspect’s blood stream, minute by minute by minute. 

While time seems to be the key element in the evidence preservation equation, the High Court did not elaborate on what the exigent circumstances might be to trigger an application of the exception.

Perhaps law enforcement will be able to streamline the warrant process in drunk driving cases – I’m sure the district court judges will love being woken up at 2:00 a.m. to make probable cause determinations. 

Bottom line: the explicit recognition that some chemical tests require a warrant is certainly a good thing for defense attorneys and for the rights of the accused.  As always, it takes good lawyering to figure out how to best use the McNeely case. 

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