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US high court’s warrantless blood test ruling gives defense bar new ammo

US high court’s warrantless blood test ruling gives defense bar new ammo

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The effect of the recent U.S. Supreme Court ruling rejecting a per se rule allowing warrantless blood testing in suspected drunken driving cases will be felt far beyond DUI cases, defense attorneys said.

Text from the opinion authored by Justice Sonia M. Sotomayor in Missouri v. McNeely will be used by members of the defense bar to bolster their arguments that evidence from warrantless searches in other circumstances should be excluded when a warrant could have been quickly and easily obtained, despite police officers’ claims of exigency.

“Exigency is the type of analysis that police are required to make all the time,” said Daniel J. Koewler, a criminal defense attorney at Ramsay Law Firm PLLC in Minneapolis.

As technologies advance and warrants are easier to get in drunken driving and other cases, police and prosecutors’ burden of proving exigency will become increasingly tough, Koewler said. “I don’t know that there is ever going to be a bright-line rule for police to rely upon,” he added.

Prosecutors downplayed the ruling, pointing out that it did not set a blanket rule barring warrantless blood tests and stressing that law enforcement officials and prosecuting attorneys will continue to seek and defend the practice when situations demand it.

“Such tests will remain an arrow in the quiver of law enforcement in appropriate circumstances,” said Platte County, Mo., prosecutor Eric Zahnd, president of the Missouri Association of Prosecuting Attorneys. “Drunk driving suspects who refuse to provide a breath or blood sample are tampering with evidence of their crime.”

The case resolved a split among the states as to whether the slow dissipation of alcohol in a driver’s bloodstream is enough of an emergency to preclude a warrant requirement for a blood test. Missouri asked the Supreme Court to overturn a state court ruling that loss of blood alcohol evidence is merely one factor to consider in deciding whether a warrant is necessary. That court relied on the Supreme Court’s decision in Schmerber v. California (384 U. S. 757), which focused on whether the “delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Such a rationale offered no support for a per se rule, but rather a case-by-case determination, the court below held.

Missouri asked the Supreme Court to endorse a per se rule allowing warrantless blood testing, arguing that several other states (including Minnesota, Oregon and Wisconsin), have also adopted an automatic exception to the warrant requirement rule in cases of suspected drunken drivers. Prosecuting attorneys’ associations from a number of states, including Arizona, Idaho, Louisiana Michigan, Minnesota, Missouri, North Carolina, Oklahoma and Virginia, backed the state’s position.

But the justices declined, holding instead that “exigency in this context must be determined case by case based on the totality of the circumstances.”

Soon ‘there may be an app for that’

Sotomayor, writing for the majority, pointed to the advancement in technology that makes obtaining a warrant easier and faster than ever. The mere fact that blood-alcohol evidence is slowly dissipating is not enough, in itself, to qualify as an exigency, the opinion concluded.

“Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing,” Sotomayor wrote. “And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk­driving investigations.”

“I think it’s a vitally important point,” said Jeffrey T. Green, a partner in the Washington office of Sidley Austin LLP and author of an amicus brief filed in the case on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers. “At the end of the day we are only talking about getting a warrant. It is much easier and quicker to get a warrant today than it was when Schmerber was decided.”

Koewler agreed, pointing out that in several years “there may be an app for that.”

Missouri’s fatal mistake in the case was pressing the court to set a bright-line rule in its favor, Green said.

“They didn’t have a fall-back position,” said Green. “They wanted all or nothing.”

Justice Clarence Thomas dissented from the ruling, and Chief Justice John G. Roberts Jr. wrote a concurring opinion, joined by Justices Stephen G. Breyer and Samuel A. Alito Jr., endorsing a rule that gives law enforcement a little more leeway.

“The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence,” Roberts wrote. In his view, “[t]hat would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies.”

But Green said the real force of the opinion is in what the court did not allow.

“What is really significant about the decision is what we avoided,” Green said. “We avoided a world in which police officers feel free to draw blood based solely upon their individual assessment. We avoided giving officers complete discretion.”

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