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By Jeff Burke, Attorney - Wednesday, April 24, 2013

 

In a brand new decision, issued April 17, 2013, the United States Supreme Court agreed that the results of a blood test, taken over the Defendant’s objection, were properly suppressed at the Defendant’s DUI trial because its draw without a warrant violated the Fourth Amendment of the United States Constitution. Missouri v. McNeely, 2013 WL 1628934.

            The Defendant was stopped by a Missouri police officer for speeding and crossing the center line.  The officer believed the Defendant was intoxicated, and requested that he take a breath test to measure his BAC.  The Defendant refused.  The officer then arrested the Defendant and transported him to a nearby hospital.  There, he asked the Defendant to submit to a blood test to determine his BAC.  Again, the Defendant refused.  The officer directed a lab technician to take a sample of the Defendant’s blood.  He did not attempt to first obtain a warrant. 

            The results showed that the Defendant’s BAC was far above the legal limit, and he was charged with driving while intoxicated.  He moved to suppress the results of the blood test at his criminal trial, arguing that taking his blood without a warrant violated his rights under the Fourth Amendment[1]—which prohibits “searches and seizures” without a warrant and probable cause. 

            The Judge presiding at the Defendant’s trial agreed with his motion, and suppressed the evidence against him.  The State appealed.  The Missouri Supreme Court also agreed that the Defendant’s blood test violated his constitutional rights, and that it was properly suppressed.  It concluded that there was no “exigent circumstance”—emergency—that necessitated taking the Defendant’s blood without a warrant.  The State appealed to the U.S. Supreme Court. 

            This is not the Court’s first look at the question of whether warrantless blood tests to obtain evidence in support of a DUI charge violate the U.S. Constitution.  As far back as 1957, the U.S. Supreme Court decided Breithaupt v. Abram, 352 U.S. 432 (1957), a case that involved a vehicle operator who was in a suspected DUI crash that killed three people in another car.  The driver in that case was himself knocked unconscious in the accident.  When police arrived, they found a mostly empty bottle of whiskey in his glove compartment.  They transported him to a local hospital.  There, they reported that the smell of liquor was evident on his breath.  A state police officer asked an attending physician to take a sample of the driver’s blood.  Subsequent laboratory analysis showed it to contain about .17% alcohol.  The driver was charged with involuntary manslaughter, and later convicted. 

            He challenged his imprisonment by filing a writ of habeas corpus in federal court.  He argued that taking his blood while he was unconscious, and unable to consent or contest its draw, violated his right to be protected from an unreasonable search and seizure.  The U.S. Supreme Court disagreed. It held that there was “nothing brutal or offensive in the taking of a sample of blood when done . . . under the protective eye of a physician . . . We therefore conclude that a blood test taken by a skilled technician is not such conduct that shocks the conscience, nor such a method of obtaining evidence that it offends a sense of justice.” 352 U.S. at 435-437.

            Later, after the Court had decided a string of search and seizure cases, including the notable Mapp v. Ohio, 367 U.S. 643 (1961), which made all evidence seized unconstitutionally inadmissible in a defendant’s trial, the U.S. Supreme Court decided Schmerber v. California, 384 U.S. 757 (1966).  There, like in Breithaupt, the defendant was charged with DUI after being involved in a vehicle crash.  At the hospital, the defendant refused to have his blood drawn.  A police officer, without attempting to obtain a warrant, directed a physician to take a sample of the defendant’s blood, which revealed a BAC in excess of the state’s allowed limit.  The results of this test were admitted at trial, and the defendant was convicted. 

            Following his conviction, the defendant contended that the withdrawal of his blood and its admission violated his Fourth Amendment rights.  Without much explanation, the Court concluded that it did not have any reason to overrule Breithaupt.

            The Supreme Court’s new decision in McNeely, however, indicates a modification of its position, if not an outright change of direction. The Court wrote that “[w]hen officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” 2013 WL 1628934.  The State of Missouri had argued that all such warrantless seizures were permissible under the Court’s prior decisions.  In response, the Court noted that warrants were procedurally easier to obtain than they were years ago: “The State’s rule fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple.” Id.

The Court also rejected the possibility that “exigent circumstances”—an emergency—existed that precluded the State from having sufficient time to obtain a warrant for the blood test: “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an emergency in every case sufficient to justify conducting a blood test without a warrant.” Id.  It concluded, however, that because the constitutionality of a search and seizure must be determined on a “case by case” basis, “the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.”    

Given the evident change in opinion of what the constitution requires when obtaining blood from a DUI suspect without their consent, and given the long standing doctrine against admission of evidence obtained in violation of the Fourth Amendment, prudence dictates obtaining a warrant before compelling a blood draw, whenever possible.  If it is not possible, law enforcement officers should at least document their efforts to obtain a warrant, and be able to show why the circumstances compelled the blood draw without one. 

 

[1] The text of the Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

 

About the Author:  Jeffery Burke has been an attorney with the FOP Labor Council since 2004.  He received his Bachelor’s Degree from the University of Massachusetts in 1992 and his law degree from Chicago-Kent College of Law in 1996.  Jeff has a long history working within the organized labor movement, working with the Chicago labor firm of Katz, Friedman, Schur & Eagle from 1994 to 1996, representing the United Auto Workers Union, Service Employees International Union, and others. He worked in house for Local 714 of the International Brotherhood of Teamsters from 1996 to 1998, then Local 705 of the International Brotherhood of Teamsters from 1998 to 2004.