Last month the United States Supreme Court in Missouri v. McNeely ruled to uphold a Missouri Supreme Court ruling in which the defendant, charged with DUI, moved to suppress results from a blood test obtained by the arresting officer without the defendant’s consent or a search warrant, claiming the unauthorized test violated his Fourth Amendment rights.
McNeely refused a breathalyzer and was taken to a hospital after the arrest, where a blood test was administered without his consent, showing his blood alcohol content was almost twice the legal limit. The trial court agreed with the defense, and the test results were not admitted at trial. The Missouri Supreme Court, relying on the 1966 Schmerber v. California case, upheld the court’s decision to rule the test inadmissible and ruled that the exigency exception to the warrant requirement did not apply because there was no emergency.
The court, affirming the use of a ‘totality of the circumstances’ test, relying on Schmerber, failed to define what constitutes an “emergency situation,” which would permit a blood test without a warrant. This raises a very real “destruction of evidence” concern, absent a reasonable exigency, causing the state to extrapolate blood alcohol levels due to the arrestee’s refusal to submit to a chemical test.
It is recommended that all agencies review their refusal policies and procedures with their legal advisors or local prosecuting attorneys. This ruling will require search warrants on most cases and a warrant procedure should be put into place so that this can be done in a timely fashion. The cases where a warrant is not required are going to be very fact specific and will rest on the exigency of the situation, proceeding even in a medically approved manner will likely mean that the blood result will be suppressed.
This decision will also increase the burden on the court system by incentivizing defense attorneys to bring additional suppression hearings. The case is clear in its ruling that the test results will be thrown out of court if a warrant is not obtained.
Driving is a privilege, not a right, and simple remedies are available through legislation. Many states make refusal a crime with the exact same penalties as the positive test, including treatment, monitoring, license revocation and jail, which protects public safety equally without such an invasive test. It also avoids those hypothetical suppression hearings, which would only occur if another officer violates the Constitution in the first place. Having an officer decide on his or her own that you need to be bled is clearly against our Constitution.
This is the exact reason I encourage the law enforcemet agencies to consult with their local legal advisors or prosecutors. For those jurisdictions where a refusal is the same crime, for all purposes, as a DUI/DWI then this comment is something to consider in your enforcement strategy. For those jurisdictions where it is not the same, or you need to prove the crime and the refusal is an enhanced penalty then follow the decision and Constitution and get a warrant.