Undoubtedly, one of the most important criminal law issues of recent time is squarely set before the United States Supreme Court in Missouri v. McNeely.The question before the Court is whether or not a police officer can draw your blood without your permission and without a warrant if that officer believes you are drunk driving.
In short, the government (Missouri) will argue that under the exigent circumstances exception to the Fourth Amendment warrant requirement, officers do not need a suspect's permission nor do they need a warrant to take a suspected drunk driver's blood because of how fast the alcohol dissipates in the blood stream.
The facts in this case are not unlike thousands of DWI cases filed for prosecution everyday in Texas and around the United States. This is why this is one of the most important issues before the Court in some time. While on patrol at 2 a.m., an officer stops a car for speeding. After speaking with the driver, the officer notices the alleged boiler-plate signs of a suspected drunk driver: blood shot, watery eyes; odor of intoxicants emanating from his breath; slurred speech; etc. At this point, the officer asks the driver to step out of the car and do some standard field sobriety tests (SFSTs). The driver performed the SFSTs poorly, according the officer. The officer then places the driver under arrest. The officer asks the driver to take a breath test and the driver refuses. The officer then asks the driver to submit to a blood test and the driver refuses. At this point, the officer takes the driver to the hospital and forcibly has the driver's blood drawn without a warrant. And to everyone's surprise…the driver's blood alcohol level is over the legal limit.
What distinguishes this case from standard DWI facts is the officer testified that the reason he did not get a warrant for the blood draw was because he read an article that asserted that, under Missouri law, he did not need a warrant to forcibly draw blood from a suspected drunk driver due to how fast the alcohol dissipates in the blood. The author of the article, a prosecutor, was wrong. The officer's reliance on the article was misplaced.
What the officer was talking about was based on a fundamental misunderstanding of the exigent circumstances exception to the Fourth Amendment and his perceived special facts that would allow him this warrantless blood draw. The special facts being that alcohol is eliminated from the blood stream relatively quickly. Seeking a warrant takes too much time and would not allow law enforcement to accurately test the blood alcohol level.
The infamous blood draw is one of the most feared and most intrusive procedures one can think of. Most people want to avoid the needle at all costs even if it's for their own good. Now, throw the fact that the government can force you face the needle without a warrant is problematic.
In this case, was Sheriff Buford T. Justice wrong? (Not really his name.) Well, in Wisconsin, Oregon, and Minnesota he would be right. These states have adopted the rationale that the rapid dissipation of alcohol alone constitutes a sufficient exigency to draw blood without a warrant. State v. Bohling, 173 Wis.2d 529 (1993); State v. Machuca, 347 Or. 644, 227 P.3d 729 (2010); State v. Netland, 762 N.W. 2d 202 (Minn. 2009).
But here in Texas, he would be wrong…for now. The United States Supreme Court has agreed to hear this case and hopefully we will see a result that is consistent with the right of the individual to be secure in his or her person, house, papers, and effects against unreasonable searches and seizures.