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April 23, 2013

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SCOTUS Clarifies DUI Blood Draw Warrant Requirement

by WSBA
missouri v mcneely
A look at Missouri v. McNeely and its impact for practitioners in Washington state.

missouri v mcneelyLast week, the United States Supreme Court filed its opinion in Missouri v. McNeely, No. 11-1425, 2013 WL 1628934 (U.S. Apr. 17, 2013). This decision was widely publicized with headlines proclaiming that the Court now requires warrants for blood draws. Despite these headlines, that is not exactly how the Court ruled or the full significance of the Court’s ruling.

SCOTUS: Case-by-case determination for warrantless blood draws

The McNeely decision is largely a clarification of the Court’s opinion in Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, police arrested Schmerber for DUI and took his blood for testing, over Schmerber’s objection and without a warrant. The Court noted that warrants are generally required for searches of dwellings absent an emergency, and “no less could be required where intrusions into the human body are concerned.” The Court then went on to state that the officer in Schmerber’s case may have believed that an emergency existed because a delay to seek a warrant would result in destruction of evidence, given that the body eliminates alcohol from the system with every passing moment. The Court upheld the warrantless search and seizure of Schmerber’s blood.

Schmerber has been the Court’s only guidance on this matter for almost 50 years. State and lower federal courts ultimately split in their interpretation of it. Some courts (including Washington courts) interpreted the decision to mean that the evanescence of alcohol creates a per se exigency in every single DUI case. Other courts continued to apply a traditional “totality of the circumstances” exigency analysis to warrantless blood draws.

In McNeely, the Court finally put the issue to rest by ruling that there can be no per se exigency. Rather, whether law enforcement needs a warrant prior to drawing blood is a case-by-case determination, using traditional exigency analysis. What is most important to note in this decision is that it only applies to warrantless blood tests when the suspect otherwise refuses to give consent. The McNeely decision does not have any direct impact on implied consent laws, and certainly does not bar the suspect from consenting to a test of his or her blood or breath. Contrary to media headlines, law enforcement does not need a warrant each time it seeks a blood draw to test for intoxication.

McNeely’s effect in Washington state

What does this mean for Washington state? There are instances where the implied consent law does not require consent for a blood draw and does not allow the suspect to refuse. This includes cases where the suspect is unconscious, is under arrest for vehicular homicide/assault, is under arrest for DUI that resulted in accident causing another person serious bodily injury, or is under arrest for felony DUI. RCW 46.20.308(3). The McNeely decision almost certainly overrules these legislative authorizations of nonconsensual blood draws unless law enforcement receives a warrant, or later successfully makes a showing of exigency.

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