High court rejects warrantless blood draw in DWI case

Listen to this article

Police must obtain a search warrant in many cases to draw blood to get evidence of drunken driving, the U.S. Supreme Court said in a divided opinion in a case involving a Missouri man.

“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” Judge Sonia Sotomayor wrote for the majority opinion.

Tyler G. McNeely had been pulled over in Cape Girardeau County in 2010 with an alleged blood-alcohol level of 0.154.

Shortly before McNeely’s arrest, state lawmakers had amended Missouri’s driving while intoxicated statutes in a way that arguably allowed police officers to obtain nonconsensual chemical samples without a warrant. And in fact the highway patrolman who arrested McNeely testified that the only reason he didn’t seek a warrant was because an article he read in “Traffic Safety News” stated warrants no longer were needed.

On Wednesday, the U.S. Supreme Court rejected the state’s request for a per se rule permitting warrantless blood draws in all drunken driving cases. The state had argued that evidence of blood-alcohol content naturally dissipates over time, creating an exigent circumstance entitling police to gather the evidence without a warrant.

“The court rejected the per se rule that the state was advancing by an 8 to 1 vote and recognized the importance of having a judge, when possible, act as a check on unfettered discretion for the police when it comes to injecting needles in people and forcibly taking blood,” said Anthony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri.

Steven R. Shapiro, of the ACLU Foundation in New York, represented McNeely before the U.S. Supreme Court. He did not return a telephone call to the press office seeking comment.

Cape Girardeau Prosecuting Attorney Christopher K. Limbaugh did not immediately return a telephone call seeking comment. John N. “Jack” Koester Jr., an assistant prosecutor in Cape Girardeau, argued the state’s case before the Supreme Court; he also did not return a phone message seeking comment.

While Justice Clarence Thomas was the lone dissenter on the result, the other judges differed on the reasoning behind the result.

Sotomayor, joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan, said whether the destruction of evidence is an exigent circumstance that permits police officers to proceed without a search warrant must be determined on a case-by-case basis considering the totality of the circumstances.

“In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically,” Sotomayor wrote, citing Schmerber v. California, a 1966 Supreme Court decision.

The decision resolves a split among states, Rothert said.

State supreme courts in Iowa and Utah as well as the 9th U.S. Circuit Court of Appeals have all rejected the argument the prosecutors assert in McNeely’s case.

On the other hand, courts in Wisconsin, Oregon and Minnesota have come down in favor of the argument advanced by prosecutors, though Minnesota is limited to DWI-related accidents.

In a partial concurrence, Chief Justice John G. Roberts Jr. advocated giving police officers guidance on when warrantless blood draws would be OK. Under his scenario, police must seek a warrant when time exists to secure one before the blood can be drawn.

Justices Stephen G. Breyer and Samuel A. Alito Jr. concurred with Roberts’ opinion.

Justice Anthony M. Kennedy wrote a separate concurrence to say the way this case was presented to the court does not allow the court to give any such guidance.

Eric Zahnd, Platte County prosecuting attorney and president of the Missouri Association of Prosecuting Attorneys, found something positive in the opinion.

“While the court stopped short of adopting a bright-line rule that would allow police to obtain warrantless blood draws in every case, it held that the natural dissipation of alcohol in blood may support that practice,” he said.

“The question of whether a warrantless blood test of a drunk-driving suspect is reasonable will continue to be determined on a case-by-case basis. But such tests will remain an arrow in the quiver of law enforcement in appropriate circumstances,” he added.

Zahnd also said MAPA supports a bill pending in the state Legislature that would make refusing to submit to a breath or blood test a crime of tampering with evidence.

House Bill 461 only received a public hearing before the House Crime Prevention and Public Safety Committee on April 9, making it unlikely to become law this year.

But, Zahnd said, “we are hopeful that today’s decision in the McNeely case will provide a sense of urgency to pass House Bill 461.”

The opinion reverses longstanding Wisconsin precedent holding that warrantless, nonconsensual blood draws are permissible (State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993)).

The case is Missouri v. McNeely, 11-1425.