The Supreme Court Says No To Warrantless, Non-Consensual Blood Draws

Supreme Court Cases You Can Actually Use:

Missouri v. McNeely, 133 S.Ct. 1552 (2013)

The U.S. Supreme Court has unequivocally ruled that when a person is stopped on suspicion of drunk driving, the police may not take a blood sample without either the suspect’s consent, or a search warrant permitting the blood draw.

    The Court explicitly rejected the prosecution argument that because  alcohol may metabolize and vanish from a suspect’s body before a warrant is obtained, there is always an exigent circumstance that eliminates the need for a warrant.  Instead, any prosecution claim that there was no need for a warrant must be considered on a case-by-case basis, and it will be very hard for the State to succeed.

    This holding does three things for the defense bar:

1. It gives us great legal authority to fight warrantless blood draws.
2. It requires us to make a motion to suppress the results of any blood draw that is done without consent and without a warrant.
3. It provides us with a blueprint for how to litigate the suppression hearing

The Facts of McNeely

    McNeely was the most routine of drunk driving cases.  Police saw McNeely speeding and weaving.  When they pulled him over, they noted the trinity of slurred speech, odor of alcohol, and bloodshot eyes.  He refused to take a breathalyzer test.  Naturally, the police did not try to get a warrant to draw his blood.  Instead, they took him to a hospital and had blood taken forcibly without a warrant.    

The Legal Issue

    In the U.S. Supreme Court, the prosecution argued for a bright line test – The natural metabolization of alcohol in the bloodstream creates a per se exigent circumstance that permits a warrantless non-consensual blood draw in all drunk driving cases.

    As a backup position, the prosecution argued that a warrantless blood draw is permissible if the police could not get a warrant in the time it would take to get the suspect to the hospital.

The Holding

    The Supreme Court explicitly rejected both of the State‘s claims.  There is no per se exigent circumstance in drunk driving cases that creates an exception to the warrant requirement for drawing blood.  It doesn’t matter how much other evidence the police have that the suspect is drunk.    Also, the fact that the police could not get a warrant quickly enough to be ready when they arrived with the suspect at the hospital is also irrelevant.  The Court specifically noted that whether or not the police obtain a warrant, there will always be some delay in taking a suspect to a hospital and drawing blood.  Thus, expected delay is no excuse for ignoring the warrant requirement.

    The Court held that as long as the police can reasonably get a warrant, they must do so.  This ruling might have left considerable wiggle room for a suppression court to latch on to the work “reasonably,” and say that in any particular case, it just wasn’t “reasonable” for the police to get a warrant.  But the Supreme Court also slammed the door on this excuse, noting that changes in technology and law, such as telephone warrant applications and grants, electronic communication, e-mail, cell phones, radio communication, and video conferencing all make obtaining a warrant much easier and quicker than ever before.  The use of form warrants and the ubiquity of on-call judges for issuing warrants in virtually every jurisdiction in the country have also streamlined the warrant process, so that it will be very rare that the police could not reasonably get one.

How Can We Use This Case?

    Make sure that when you move to suppress and at the suppression hearing, you gather and introduce the following evidence to show that it was very reasonable for the police to get a warrant:
 

• The technology available to your police department for making warrant applications
• The telephone, e-mail, video conferencing, and other electronic procedures that have been set up that make it easy for the police in your jurisdiction to apply for and get a warrant
• The fact that there was a judge or magistrate on-call to take warrant applications when your client was arrested
• That your jurisdiction has established protocols that make it easy to get a warrant at any time
• That your jurisdiction has statutes and regulations that make it easy to get a warrant at any time
• That your jurisdiction has standard form that the police always use to apply for warrants in drunk driving cases

    Finally, it is important to remember that by rejecting any per se exception to the warrant requirement in DUI cases, McNeely held that each case must be decided on its own particular facts.  It is therefore essential that we litigate these suppression motions factually.  Don’t just recite a laundry list of things that in theory might make it reasonable for the police to get a warrant.  Investigate, discover and introduce all of the things – electronic, technical, administrative, and legal – that your police actually had that made it easy for them to get a warrant.  By fitting your facts into the legal framework of McNeely, you will win a lot more suppression motions in DUI cases.