This past April, the United States Supreme Court ruled on Missouri v. McNeely and held that law enforcement must (in most cases) get a warrant before taking a non-consensual blood sample to test a driver’s blood alcohol level.  Of course, like most anything in law there are exceptions.

In McNeely, the defendant was stopped early in the morning by a highway patrolman for speeding and swerving.  The defendant failed several field sobriety tests, and was asked to submit to an alcohol breath test at the scene, which he refused.  The defendant was then arrested and transported to a local hospital.  The defendant again refused to consent to a blood test.  Rather than seeking a ‘readily available’ warrant, the police officer instead directed the lab technician to take the defendant’s blood sample.  The test results indicated a blood alcohol level about twice Missouri’s legal limit and the defendant was charged with driving while intoxicated.

At issue in this case was whether the natural metabolization of alcohol in the bloodstream (i.e. the body’s ability to metabolize and destroy evidence) presented a per se exigency that justified an exception to the Fourth Amendment warrant requirement for non-consensual blood testing in all drunk-driving cases.  The Court held that it did not.  The Court noted that its precedent demanded a case-by-case analysis when lower courts determine whether exigent circumstances justified a warrantless search.  Although the State argued that exigency necessarily exists in any alcohol-related blood test given that blood-alcohol content rapidly diminishes with time, the Court found no reason to adopt a blanket per se rule.  The Court agreed that significantly delaying a blood test to obtain a warrant would, “negatively affect the probative value of the results.”  But it reasoned that when the State has time to obtain a warrant, the Fourth Amendment requires it to do so.  When obtaining a warrant is impractical, the blood testing may very well merit an exigency exception.

To illustrate this rationale, lets apply it to a couple of scenarios.  In large metropolitan areas like Los Angeles there are judges that are available during nightshifts to issue warrants.  So if the LAPD want to conduct a non-consensual blood draw on a suspect, they can seek a telephone warrant quickly so it doesn’t violate the suspect’s 4th Amendment rights while preserving any potential evidence in the suspect’s body.  So when the police have time to obtain a warrant, and in this case it only takes a few seconds to make that phone call, the Fourth Amendment requires the warrant to be obtained.

Now where this becomes more interesting is if the traffic stop takes place at night in a rural area.  In some cases, small towns do not have the resources to have judges on call for telephone warrants.  As a result, there might be an unavoidable delay in getting judicial authorization.  So the emergency here is that due to the delay in obtaining a warrant, the police cannot wait for the warrant to issue, because if they did, the suspects body will have likely destroyed the evidence.  Therefore, under these circumstances since obtaining a warrant is impractical, a non-consensual blood test may very well merit an exigency exception.

Author’s Note: Damian Siwek is a Los Angeles based criminal defense attorney and managing partner at DCS Defense – The Law Office of Damian Siwek. To contact Mr. Siwek for a free case evaluation, please use the links below.
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