Recently, April 17, 2013, to be specific, the highest court in the land upheld the 4th Amendment Right of drivers suspected of DUI. The ruling, however, is limited to cases where police are looking to draw blood, and does not affect breath test cases in the same manner. The name of the case is Missouri v. McNeely. The facts of McNeeley were as follows:
While on patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the center line. The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed “a couple of beers” at a bar. He appeared unsteady on his feet when he exited the truck. McNeely performed poorly on a battery of field sobriety tests and declined a portable breath test device. The officer placed him under arrest (for suspicion of DUI). The officer began to transport McNeely to the station house (for purposes of offering him a breath test). McNeely indicated that he would refuse to provide a breath sample. As a result the officer changed (his driving) course and took McNeely to a nearby hospital. The purpose was for securing a blood test. At no point did the officer attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. This request was done by reading from a standard implied consent form. In do this, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. McNeely nonetheless refused to voluntarily provide a sample of his blood. As a result, the officer directed a hospital lab technician to take a blood sample, involuntarily and without consent from McNeeley. The sample was secured, and subsequent laboratory testing measured McNeely’s BAC at 0.154 percent. Obviously above the legal limit of 0.08 percent. McNeely was charged with driving while intoxicated (DWI).
The holding was simple, because there were no exigent (emergency) circumstances in the DUI investigation, and law enforcement searched McNeely by way of a blood draw, so a warrant was required. According to the highest court in the land:
The question presented 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.
As a result, regardless of the nature of the possible charge, Felony (DUI accident with an injury), or DUI Misdemeanor (no injury involved), it is the circumstances regarding the need to immediately secure evidence, above and beyond the bodily assimilation and removal of alcohol, that dictate whether a search of the person’s body can be done, without a warrant, as an exception to the 4th Amendment. In McNeely, it was the lack of exigency combined with the absolute need for an “exception” to the 4th that was the meat of the Courts analyses. For over 40 years there is a clear and consistent holding on search and seizure; a warrantless search of the person is reasonable only if it falls within a recognized exception.
Related Podcast: US Supreme Court Strikes Down Warrantless DUI Blood Draws
That principle applies to the type of search at issue in this case (McNeely), that involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.
Furthermore, the Supreme Court also reminded every state and its law enforcement, and citizen’s therein, of the fact that there are exceptions to every rule and in this 4th Amendment Right, the “exception” to the warrant requirement, is exigency. The Court wrote:
We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. We explained that the importance of requiring authorization by a “‘neutral and detached magistrate’” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.
When it comes to exceptions they require an emergency, or rather an “exigent” circumstance. One well-recognized exception “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” The types of exigent circumstances, or examples if you will, that are emergent enough to justify and override a person’s 4th Amendment right were described as situations of where the reality of the situation provided no time to secure a warrant, or time is of the essence and the time it takes to secure a warrant would permit the destruction of evidence.
In a reaction to this opinion, a well known Prosecutor, Pam Loginsky, speaking on behalf of the Washington Prosecuting Attorneys Association (WAPAA), stated that a warrant should be applied for in every blood draw case, with few exceptions. Her comments can be found here.
A Judge Should Decide When to Overrule a Constitutional Right
The Supreme Court reiterated that this rule is not absolute; rather the determination of a whether a warrant is feasible should be done by examining the totality of the circumstances and, on a case by case basis. The United States Supreme Court considers this analysis as a “finely tuned approach” and is required because “police action lacks the traditional justification that a warrant provides.” In other words, it is the job of a Judge to decide when a constitutional right should be overruled, rather than the police.
The Unintentional Precedent
In issuing there ruling, the Court returned to a nearly 50 year old case where the rule of exigency was first set forth, but since then was taken to mean no warrant was needed. In Schmerber, a DUI arrest, with a blood draw at a hospital, it was found to be exigent, because at that time, under those circumstances, the Court found facts and cause to believe that the officer was “reasonably” confronted with an emergency that qualified as an exception to the 4th Amendment. Specifically, it was the facts of the DUI there, where much time had been used, and more would be used in the securing of a warrant. The facts and circumstances there were said to be “special,” and thus an exception the 4th Amendment. The authorizing of a invasive blood draw absent a warrant, in no way was meant to be a per se rule.
In fact, that was what the prosecuting authority argued for in McNeely, but in their holding the highest court in the nation specifically rejected the notion that “probable cause” is sufficient to override the 4th Amendment. In fact, the specific rule cited in McNeely is this:
“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.”
Delays Do Not Make Emergency Situations
It is specifically noted that delay is inherent in blood draw cases, but that delay does not an exigent circumstance make. It should be noted that a breath test case demands a delay in the form of an observation, or deprivation period of “at least 15 minutes” under Washington state protocol. See WAC 448-16-040 and RCW 46.61.506.
Transportation is also a regular delay in this state for every breath test case, as a person must be placed before a non-transportable state approved breath test machine. There are no such requirements for a blood draw in so far as deprivation period, and in most cases in the northwest corner of Washington State, the local hospitals are no further away than a breath test machine.
Advances in Technology Make Applying for a Warrant More Expeditious
The Supreme Court recognized the reality of “some” inherent delay, in combination with the body’s assimilation and elimination of alcohol, and held it to be an “unreasonable” excuse and certainly not “exigent.” Specifically:
Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement. The State’s proposed per se rule also 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 offered to establish probable cause is simple.
Washington is the exact state described in McNeely that “allows police officers or prosecutors to apply for a search warrant remotely through various means, including telephonic, or radio, electronic communications such as email, and video conferencing.
Also, here in Washington the necessary forms to apply for a telephonic, or email warrant are available online. It is my experience here in Washington, practicing DUI defense in Whatcom County, Skagit County, Island County, and San Juan County, that officers involved in the investigations of DUI cases routinely, and freely admit under oath, that not only have they applied for a Search Warrant, most often when there is a breath test refusal as authorized by RCW 46.20.308, but that they are aware of the template used to obtain the warrants, and also well aware and proficient in the procedures and protocols to contact a Judge for a warrant.
From the moment the officer comes to the conclusion that blood will be drawn, the delay to obtain a warrant with the ease of current procedures and technology, is likely to be faster, or just as quick as a blood draw with no warrant, and likely just as quick as breath testing procedures.
In Washington, the days of obtaining a person’s blood without a warrant are most likely over due to this ruling. Each state is bound by the rule. Every state can provide more protection to citizens under their state constitution which typically mirror the rights in the United States Constitution, but the Supreme Court sets the minimum standard of citizen protection. Absent a warrant, circumstances where the police have time to secure a warrant and do not, the blood evidence obtained, is done so illegally, and unlawfully in violation of a driver’s most basic right. This kind of evidence, is thus “fruit of the poisonous tree” and the required legal remedy for such a violation is suppression of the evidence in the form both the blood drawn, and the analyses thereof.
This is a remarkable ruling in light of the fact that traditionally, a person charged with DUI is subjected to unstated bias against them. Among DUI defense attorneys it is known as the “DUI exception to the Constitution.” However, this ruling is evidence that no matter what the crime is, the Constitution reigns supreme over law enforcement and the notion that probable cause is enough to trump basic, inalienable rights so thoughtfully set forth by the founding fathers, is unlawful.