Supreme Court Reverses Warrantless Blood Draws in DUI Cases

Finally, the United States Supreme Court has ruled on an issue that has boggled the minds of criminal defense lawyers for decades: warrantless blood draws from people arrested on suspicion of driving under the influence (or DUI). See this blog April 5, 2013 and January 25, 2013. Under the implied consent laws of California, and most other states, an operator of a motor vehicle is subject to a blood draw (even forcibly) without a warrant, if a peace officer has reasonable suspicion to believe that the motorist is under the influence of alcohol or a drug. Apparently the state legislatures across the country have little constitutional concern about a government agent, with the authority of the state, sticking a syringe into a person's body and extracting blood, without permission and without a warrant.

California, along with the other states, has justified this intrusion (and it is a gross and deliberate intrusion) based on the legal concept of "exigent circumstances." In other words, where there is an emergency situation, such as destruction or loss of evidence which would result in the time it takes to obtain a warrant, police may act and search without one. Cupp v. Murphy (1973) 412 U. S. 291, 296. The theory in DUI cases is that alcohol in the blood dissipates quickly; so quickly in fact that if police wait for a warrant they will be unable to obtain a blood sample reflecting an alcohol level close to the time of driving.

In Missouri v. McNeely (2013) 569 U.S. --- [No. 11-1425, April 17, 2013], the court found otherwise: "The question presented before here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances."

The court here is saying that if warrants are generally required to search a home or car, absent a well-recognized emergency, nothing less can or should be required for an intrusion into the human body. Thus, like all other search and seizure cases, an epidermal invasion into the human body necessitates a Fourth Amendment analysis (it took four decades to come to this conclusion?). For those of you unfamiliar with the warrant-obtaining process, permission from a magistrate can often be done over the phone.

The court did however, refuse to announce a bright-line rule, falling back on the traditional "totality of the circumstances" analysis typical of Fourth Amendment cases. This means that if the arresting officer has a reasonable belief that an emergency situation exists and that calling in for a warrant will lead to destruction of evidence, he may still obtain a blood sample without permission (so the court seems to suggest). Nevertheless, the fact pattern in Missouri v. McNeely, which was before the Supreme Court is the typical scenario: the motorist is stopped for speeding or other vehicle code infraction (assuming there was probable cause for the stop) and detained. The officer observes "the objective symptoms of being under the influence," and asks the motorist to perform certain field sobriety tests, which a tea-totler after church on Sunday could not pass. The motorist is given a PAS test, arrested, brought to the station and then a blood, breath or urine sample is taken. In this scenario, the police are now required to obtain a warrant if the motorist refuses to give up a sample of blood, breath or urine.

(In drug cases the police will be even more hard-pressed to find exigent circumstances, because of the slower metabolization into the blood stream.)

With this new change in the law, the answer to the question posed in the article dated April 5, 2013, this blog (see below) is ostensibly yes, because without permission, the police must first obtain a warrant before forcibly taking blood. It will be interesting to see how the Department of Motor Vehicles responds to the Supreme Court, for as it stood before this case, refusing to submit to a chemical test could result in a loss of driving privileges for one year, on a first time offense (sometimes merely on a casual suggestion that the motorist "refused.") See Vehicle Code section 133353.