By Michael J. Oh, Esq., Assistant City Attorney, Henderson Police Department, Henderson, Nevada; and member, IACP Legal Officers Section
hat? I need a search warrant to obtain a blood sample for someone who is driving drunk?!” was the common reaction from officers when the decision Missouri v. McNeely came down. It caused frustration throughout the law enforcement community. Unfortunately, like many significant cases from the U.S. Supreme Court, the decision in Missouri v. McNeely issued on April 17, 2013, leaves more questions than answers. The decision undoubtedly impacts the investigation of driving under the influence (DUI) offenses, but state and local police agencies are left to figure out how.
In McNeely, the U.S. Supreme Court ruled that a nonconsensual (forced) warrantless blood draw violates a person’s right to be free from unreasonable searches and seizures. The McNeely decision certainly has caused serious concerns to police departments throughout the United States. Some of the questions include (1) Did this decision invalidate the implied consent laws? and (2) Are search warrants required for every DUI arrest before a blood sample can be taken from a person suspected of drunk driving? Consequently, this decision left many police departments scrambling to modify their policies and procedures for investigating DUI offenses.
The purpose of this article is to discuss the impact this decision has on investigating DUI offenses. Each law enforcement agency will be impacted differently. Certainly, the extent of the impact depends on many factors such as each state’s implied consent laws and the respective courts, who will ultimately decide these issues. Nevertheless, this article discusses key points of the decision.
Facts of Missouri v. McNeely
On October 3, 2010, at 2:08 a.m., a Missouri trooper stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and cross the centerline three times. Upon making contact with the McNeely, the trooper observed McNeely to have bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. McNeely admitted to consuming “a couple of beers” at a bar.1 Based upon these observations, the trooper asked McNeely to step out of the vehicle and immediately noticed McNeely to be unsteady on his feet. McNeely performed poorly on the field sobriety tests and declined to submit to a preliminary breath test. Based upon the trooper’s observations, the trooper placed McNeely under arrest for driving under the influence of alcohol.
While en route to the jail, the Trooper asked McNeely if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely stated he would refuse to provide a breath sample. Based upon this statement, instead of taking McNeely to the jail, the trooper took McNeely to a nearby hospital to obtain a blood sample to secure evidence of intoxication.
Upon arrival at the hospital, the trooper read McNeely the implied consent and requested a blood sample. McNeely refused to voluntarily provide a blood sample. Consequently, the trooper directed a hospital lab technician to draw a blood sample. Although the trooper had obtained search warrants in previous drunk-driving cases, in this instance, the trooper did not seek a search warrant based upon a training session he attended where it was stated that a search warrant was no longer necessary due to a recent change to the “refusal” provision of the Missouri implied consent law.2 Additionally, because the stop was in the middle of the night, in the county the trooper was in, it took an average of approximately two hours to obtain a search warrant.3 The blood sample was taken from McNeely without a warrant. The blood sample showed a blood alcohol content (BAC) level of 0.154 percent.
The trial court granted McNeely’s motion to suppress the blood evidence, holding that the warrantless blood draw violated his Fourth Amendment right. The trial court held that the natural dissipation of alcohol in the bloodstream does not constitute a sufficient exigency to justify a warrantless blood draw in a routine DUI case. The U.S. Supreme Court affirmed the trial court, holding that the dissipation of alcohol in a routine DUI case does not create a per se exigency.
The Issue Decided by the U.S. Supreme Court
The issue decided by the U.S. Supreme Court was 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 blood testing in all drunk-driving cases. In addressing this issue, the U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts.”4 Nowhere in the McNeely opinion does it prevent officers from drawing blood if exigent circumstances exist. In fact, the U.S. Supreme Court affirmed the drawing of blood without a warrant or consent in Schmerber v. California, in 1966.5 Consistent with the Schmerber ruling, the McNeely decision simply requires an officer to establish the exigency by showing facts other than the alcohol is being metabolized by the human body and evidence is being destroyed as a basis for warrantless and nonconsensual blood draws. As an important side note, the Schmerber Court stated that probable cause exists with bloodshot, watery eyes, and the odor of alcohol upon the person.6
The McNeely Court pointed out that the diminishing of BAC upon the cessation of drinking is only one factor that must be considered in determining whether a warrant is required. The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. This statement clearly shows that a warrantless blood draw can still be conducted provided there are other factors articulated by the officer. Unfortunately, because Missouri argued only the issue of per se exigency, the Court did not address the factors to be taken into account in determining the reasonableness of acting without a warrant. Consequently, these factors will be developed by subsequent decisions on this issue.
McNeely Does Not Deem States Implied Consent Laws Unconstitutional
All 50 states have adopted implied consent laws. These laws establish that by accepting a driver’s license, a driver agrees to submit to a chemical test if detained on suspicion of drunk-driving. In some states, if a person refuses to voluntarily submit to a chemical test to determine the blood-alcohol content, the person’s driver’s license is immediately suspended or revoked. In most states, the refusal to take a Blood Alcohol Content (BAC) test can be used as evidence against the person in the criminal prosecution.
The U.S. Supreme Court decision does not invalidate existing implied consent laws. Instead, it simply requires that if a person revokes their “implied” consent, a warrant must be obtained. In the McNeely Court’s opinion, a positive note of the implied consent statutes was made asserting that states have a broad range of legal tools to enforce their drunk-driving laws. The U.S. Supreme Court also highlighted that all 50 states have adopted implied consent laws. The Court concluded only that a reasonable expectation of privacy against involuntary blood draws exists, granting individual’s nonconsensual (forced) blood draws protection under the Fourth Amendment. Consequently, if a mandatory nonconsensual blood draw is necessary; a search warrant should be obtained unless exigent circumstances can be articulated.
What Should Police Agencies Do?
When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. However, if an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained. The officer must be able to articulate what factors were present that created an exigent circumstance. It is important to note that the exigent circumstance cannot be a result of the officer’s conduct.
Law enforcement agencies should work closely with the prosecutors within their jurisdictions. Prosecutors can assist by providing protocols on how to show due diligence in obtaining search warrants. Once protocols have been created, training the new process to officers is imperative. Officers should be trained on which magistrates to call, what needs to be said in order to secure a warrant by telephone, which forms to use, and what the procedures are for finalizing the warrant. If a policy is not created, the police agency should adopt a written policy outlining the steps an officer must take to obtain a warrant.
Immediately upon receiving the decision, the Henderson Police Department together with the Las Vegas Metropolitan Police Department and the District Attorney’s Office worked to modify the Nevada Implied Consent language. A script was developed to initially guide officers as to what needed to be said in order to obtain a search warrant by telephone, and every squad was briefed individually to explain the process for obtaining such a search warrant. Additionally, a mock DUI investigation was done in order to ascertain the timing of obtaining a search warrant and to evaluate the process. Through a collaborative effort, this process was developed in less than 24 hours after the decision was received. Currently, many of the law enforcement agencies throughout the state of Nevada are continuing to work together and share information as issues arise. This will be invaluable as it creates consistency throughout the state and will give some control of the issues that will continue to be litigated.
As the U.S. Supreme Court noted in its conclusion, there will be increased litigation defining the factors that justify an exigent circumstance. Until then, it is advisable that officers articulate in great detail the reasons that justify a warrantless blood draw when the person revokes consent. ♦
1Missouri v. McNeely, 569 U.S. ___ (2013).
2Prior to the amendment, the Missouri implied consent law provided that if a person refused a chemical test, then “none shall be given.” Effective August 8, 2010, the phrase “none shall be given” was deleted from the statute. Based upon the change in the law, the trooper’s understanding was that a search warrant was not required based upon an article he read during a training session he attended.
3The rate of elimination of alcohol in the bloodstream is generally somewhere between .015 and .020 percent per hour.
4Per se means by itself; in itself; taken alone. The U.S. Supreme Court noted the state argued for a per se exigency due to the fact that alcohol is naturally metabolized by the human body and that this dissipation of alcohol creates an exigency for every single DUI arrest.
5In Schmerber v. California, 384 U.S. 757 (1966), the driver who was suspected of drunk-driving suffered injuries in an automobile accident and was taken to the hospital. The officer arrested the driver for driving under the influence of alcohol and ordered a blood test over the objection of the driver. The Court held that a warrantless blood test was permissible because the officer “might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’”
6A warrant can still be obtained when a driver refuses Field Sobriety Tests if the driver has bloodshot, watery, and glassy eyes and an odor of alcohol upon him or her.
Please cite as:
Michael J. Oh, "Missouri v. McNeely: What Does This Mean for DUI Enforcement?" Chief’s Counsel, The Police Chief 80 (August 2013): 16–17.