Finally, a line is drawn on the ‘DUI exception’

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In the April 17 decision Missouri v. McNeely, the U.S. Supreme Court held that as far as the non-consensual drawing of blood from DUI suspects is concerned, there is no “per se” exception to the warrant requirements of the 4th Amendment. This decision had been anxiously awaited by both the DUI defense bar and prosecutors.

While the opinion is somewhat splintered, the vote was 8-1 (with only Justice Clarence Thomas dissenting) in favor of the idea that there is no general “special DUI exception” which allows cops to take blood samples by force and without a warrant.

Non-consensual or forced blood draws are currently in vogue in California, South Dakota, Nevada, Idaho and in the federal parks. Additionally, many states, led by Texas, currently champion “no refusal weekends” during which search warrants are routinely issued by magistrates in DUI cases. In these states, magistrates are brought in for the specific purpose of simply issuing a boilerplate search warrant before the non-consensual blood test is performed.

South Carolina currently allows for warrantless and compelled blood draws in felony DUI cases and in all DUI cases in which the driver is unconscious or incapable of refusing to provide a sample. North Carolina allows for warrantless and compelled blood draws in all DUI cases in which the driver is unconscious or otherwise in a condition which makes him or her incapable of refusing.

The decision in McNeely correctly hews to the 4th Amendment’s prohibition against “unreasonable search and seizures” in DUI cases. Critical to the decision is the fact that Missouri argued for the creation of a blanket exception to the 4th Amendment in regards to DUI cases.  Missouri’s position was that the natural dissipation of blood alcohol in a driver was the only factor needed to justify creating a permanent constitutional exception for DUI cases.

Missouri argued that whenever a police officer has probable cause to believe an individual has been driving under the influence, those “exigent circumstances” will always exist because blood alcohol evidence is “inherently evanescent.”

In rejecting this argument, Justice Sonia Sotomayor correctly distinguished McNeely from the previous Supreme Court decision in Schmerber v. California.  In that case, the court upheld a warrantless blood test of an individual arrested for DUI because the officer “might reasonably believe 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 McNeely, the court appropriately concluded that “exigent circumstances” must be determined on a case by case basis.  The sole factor that alcohol naturally dissipates in the bloodstream does not establish a “per se” exigency that on its own justifies a blanket exception to the warrant requirement for non-consensual blood testing.  The majority opinion stressed that the type of search at issue is highly intrusive.  As the court correctly noted, “Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep rooted expectations of privacy.’”

In support of its holding, the court said that 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 4th Amendment mandates that they do so.”  While some circumstances may be present that will make obtaining a warrant impractical, that is precisely why each case must be decided on its own facts.

As the court pointed out, in most drunk driving cases there is a delay between the time of arrest and the time of the blood or breath test. In circumstances where an officer can take steps to secure a warrant while the suspect is being transported to a medical facility, usually by another officer, there is no plausible justification for an exception to the warrant requirement.

The court specifically noted that many technological advances have occurred in the 47 years since Schmerber was decided.  Most states “now allow police officers to apply for search warrants remotely through various means, including telephonic or radio communication, email and video conferencing,” the decision said.

Technological advances allow law enforcement easier and quicker communication to judges and magistrates to seek search warrants in cases such as these; and the 4th Amendment demands it.

Steve Sumner is a practicing attorney in Greenville, S.C. and a member of the National Association of Criminal Defense Lawyers