Question: Does the natural dissipation of alcohol in a drunk driver’s bloodstream
always create circumstances that allow officers to require a blood draw without a warrant or consent?
Quick Answer: No. The mere fact that alcohol dissipates from the bloodstream does not automatically justify a warrantless blood draw.
Facts: An officer patrolling the highway stopped Tyler McNeely for speeding and repeated lane violations. The officer observed that McNeely had red eyes, slurred speech, and an odor of alcohol on his breath. McNeely admitted to consuming alcohol earlier that evening. The officer had him step out of the vehicle to perform field sobriety tests (FSTs). McNeely had an unsteady gait as he stepped out of his car, and he performed poorly on the FSTs, so the officer asked him to take a preliminary breath test. When McNeely refused, the officer arrested McNeely for drunk driving. En route to the police station, McNeely again told the officer that he refused to take any breath test, so the officer changed his mind and took McNeely to the hospital to get blood drawn.
When they arrived at the hospital, the officer asked McNeely for consent to take a blood sample, and McNeely refused, even after the officer read McNeely the state’s implied consent law that could prompt a one-year license suspension. The officer directed a lab technician to draw blood, and McNeely’s blood alcohol concentration (BAC) measured at .154 percent, well above the legal limit. McNeely was charged with driving while intoxicated, and he moved to suppress the blood test results based on the warrantless blood draw.
Why this case is important: The Supreme Court held that it would not create a categorical rule that exigent circumstances
always exist in drunk driving investigations. Instead, the court said it depends on the totality of the circumstances in each case.
In routine drunk driving investigations, the natural dissipation of alcohol in the bloodstream alone isn’t enough to be considered an “exigent circumstance.” Plus, destruction of evidence of a person’s BAC is different than other destruction-of-evidence cases, such as those involving drugs, because a person’s BAC isn’t easily disposable. It metabolizes in the bloodstream in a gradual and somewhat predictable way. Also, because it takes time to transport a typical OVI suspect to a medical professional, regardless of whether a warrant is obtained, it is difficult to argue that there is an exigent circumstance that prevents an officer from getting a warrant.
In 1966, the Supreme Court held in
California v. Schmerber that a warrantless blood draw was constitutional based on exigent circumstances, but
Schmerber was very fact-specific. And the facts in that case are different than what happened here. In
Schmerber, the suspect had been injured in a car crash and rushed to the hospital. Officers stayed at the crash scene to investigate and later traveled to the hospital. Because so much time had passed at that point, exigent circumstances supported the decision to take the suspect’s blood without a warrant or consent. Those circumstances didn’t exist in
Missouri v. McNeely. The officer was conducting a routine drunk driving investigation in which no injuries or crash scene processing would have significantly delayed the officer from obtaining a warrant. Plus, in the 47 years since
Schmerber was decided, officers are able to obtain warrants quicker.
Keep in mind: During a drunk driving investigation, whether you can take a blood sample from the suspect is going to depend on the facts and circumstances of your case. The Supreme Court says it loud and clear: There’s no
per se rule permitting law enforcement to draw blood without a warrant or consent during a drunk driving investigation. You need additional facts to exist, such as in
Schmerber, that would justify the warrantless draw. Therefore, when you are able, you should get a warrant for the blood sample.
Visit the
U.S. Supreme Court’s website to view the entire opinion.