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Drunk Driving Blood Cases Become More Involved

Thursday, February 4, 2016

By Larry E. Holtz, Esq.

Source: Holtz Learning Centers

Recently, in Missouri v. McNeeley, 133 S.Ct. 1552 (2013), the United States Supreme Court held 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 nonconsensual blood test without a warrant. According to the Court, under the Fourth Amendment, “exigency in this context must be determined case by case based on the totality of the circumstances.”
THE CASE: In the early morning hours, a Missouri police officer stopped Tyler McNeely’s truck for speeding and repeatedly crossing the centerline. “The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed ‘a couple of beers’ at a bar, and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest.”

“The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test.” McNeely refused. “The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m.” McNeely’s blood-alcohol concentration was .154%, well above the legal limit of 0.08 percent. As a result, he was charged with driving while intoxicated (DWI).

McNeely moved to suppress the results of the blood test, “arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment.” The trial court agreed, as did the Missouri Supreme Court and, ultimately, the United States Supreme Court.

THE LAW: In the landmark case of Schmerber v. California, 86 S.Ct. 1826 (1966), the United States Supreme Court found that exigent circumstances justified a warrantless blood test of an individual arrested for drunk driving. Here, in McNeely, the question was “whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” Concluding that it does not, the Court held, “consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”
Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” In this regard, “exigency depends heavily on the existence of additional ‘special facts,’ such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber.” The exigencies of the situation must “make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment[;]” naturally, this includes law enforcement’s need to “prevent the imminent destruction of evidence.”
“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances.” For example, in Schmerber, the defendant had suffered injuries in an automobile accident and was taken to the hospital. “While he was there receiving treatment, a police officer arrested [Schmerber] for driving while under the influence of alcohol and ordered a blood test over his objection. After explaining that the warrant requirement applied generally to searches that intrude into the human body, [the Court] concluded that the warrantless blood test * * * was nonetheless permissible because the officer ‘might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.’ ”
In support of that conclusion, the Court “observed that evidence could have been lost because ‘the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.’ * * * [The Schmerber Court] added that ‘[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.’ * * * ‘Given these special facts,’ [the Court] found that it was appropriate for the police to act without a warrant.”
Here, in McNeely, the State asked the Court to adopt “a per se rule for blood testing in drunk-driving cases. The State contend[ed] that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claim[ed] that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.” Id. The United States Supreme Court declined to adopt the State’s per se rule.
While it is true that “as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated,” that does not generate a sufficient exigency by itself. “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.” Naturally, there will be “some circumstances [that] 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 [was done] in Schmerber[.]”
“The context of blood testing is different in critical respects from other destruction-of- evidence cases * * *. BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.” This reality undercuts the State’s argument that this Court should recognize a “categorical exception to the warrant requirement because BAC evidence ‘is actively being destroyed with every minute that passes.’ ” “Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.”
“The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. * * * Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.”
Nonetheless, such improvements in communications technology do not guarantee that a judge will be available when an officer needs a warrant after making a late-night arrest. “For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.” The relevant factors in determining whether a warrantless search is reasonable, “including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case. * * * It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed.”
“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 a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”
Accordingly, “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.” Id. at 1568.

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