Can the State Take Your Blood Without a Warrant?



Today, the Supreme Court hears argument in Missouri v. McNeely. The issue presented is whether a police officer may obtain a nonconsensual and warrantless blood sample from a driver the officer believes is drunk. The petition for certiorari can be found here. Essentially, the cops stopped McNeely late at night and McNeely did poorly on several field sobriety tests. He refused to take a breathalyzer on the side of the road and at the police station. The arresting officer then transported him to a lab and, against McNeely’s protests, had blood drawn. The sample showed a BOC of .15 percent–almost double the legal limit. Never did the officer attempt to get a warrant before taking the blood sample.

The evidence of the blood test was suppressed by the trial court and affirmed by the state’s highest court. The Missouri Supreme Court held that warrantless searches are per se unreasonable unless they fall within certain narrow exceptions. The court further noted that society’s interest in preventing drunk driving does not automatically trump a Fourth Amendment interest in freedom from unreasonable searches. It further concluded that the fact that the blood alcohol level dissipates over time does not, by itself and without regard to other factors, qualify as an exigent circumstance to the warrant requirement.

Missouri argues that the state court decision was wrong because there is always an exigent circumstance in drunk driving cases. Because alcohol dissipates from the system after a person stops imbibing, it claims that no time should be “wasted” in getting a warrant for the blood draw.

Of course, the Supreme Court has heard this issue before. In Schmerber v. California (1966), the Court held that a warrant is not necessary to get a blood sample from a person involved in car wreck when the police believe the driver was drunk at the time of the accident. The officer in Schmerber did not have time to get a warrant because the suspect had to be taken to the hospital for medical treatment and the officer had to fully investigate the accident.

So, the question in our present case is whether the Schmerber covers all drunk driving crimes, or should it be limited to the facts of an auto accident, accident investigation, etc.

My two cents: Bravo to the Missouri courts in suppressing this evidence. The forcible taking of a citizen’s blood is a significant intrusion into the body and personal privacy. The police should be required to articulate to a neutral and detached magistrate facts showing probable cause that the driver is drunk and that the evidence of a blood sample is needed in the case.

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