On January 9th, 2013 the U.S. Supreme Court heard arguments in Missouri v. McNeely on whether police may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
Missouri police initiated a traffic stop on McNeely’s vehicle for speeding at 2:00 a.m. During the stop the speeding infraction morphed into a DUI investigation based on the officer’s observations. McNeely performed poorly on the field sobriety test and was arrested for DUI. As McNeely was being transported to jail, the officer asked if he was going to voluntarily provide a breath sample, McNeely stated he was going to refuse. After hearing this, the officer drove to a nearby hospital. The officer read the implied consent form and after McNeely refused he directed staff to draw blood despite McNeely’s refusal. The blood test results established a BAC of 0.154, almost twice the legal limit of .08 in Missouri.
McNeely sought suppression of the blood sample and test results. The Missouri Supreme Court upheld the suppression, holding that the nonconsensual blood draw violated the Fourth Amendment, rejecting the state’s reliance on Schmerber v. California, 384 U.S. 757 (1966) which permitted a warrantless blood draw because of the emergency circumstances.
During oral arguments to the United States Supreme Court, the government asserted that dissipation of blood alcohol content (BAC), alone, is an exigent circumstance implicating Schmerber where police are not required to obtain a search warrant for the blood draw. This broad application fails to acknowledge the limited situation in which Schmerber was applied. Although the Schmerber Court found no Fourth Amendment violation, it made it clear that the judgment was reached only on the facts of that particular case.
Although the Court’s decision has yet to be published, there seemed to be a clear consensus among the Justices that the governments broad approach would not survive and granting such unbridled power to police, especially regarding the invasive intrusion of taking a persons blood in any DUI case without consent, will not be tolerated.