Warrantless Blood Draws and the Fourth Amendment (Again)

A recent en banc decision from the Supreme Court of Missouri adds to the growing divide among state appellate courts regarding whether the exigency created by the dissipation of blood-alcohol levels is sufficient, by itself, to render a nonconsensual, warrantless blood draw from a person arrested for impaired driving a reasonable search and seizure under the Fourth Amendment.  The Missouri high court in State v. McNeely, 2012 WL 135417, __ S.W.3d. __  (January 17, 2012), rejected the State’s argument, premised on Schmerber v. California, 384 U.S. 757 (1966), that the natural dissipation of blood-alcohol evidence is alone a sufficient exigency to dispense with the Fourth Amendment’s warrant requirement.  McNeely viewed Schmerber as requiring special facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception.  In Schmerber , those additional facts included the time delay created by the investigation of the accident and the transportation of the defendant to the hospital.

The defendant in McNeely was stopped for speeding.  When the officer noticed signs of intoxication, the routine traffic stop transformed into a DWI investigation.  After the defendant performed poorly on field sobriety tests, he was arrested.  Once the defendant was secured in the patrol car, the officer asked him if he would submit to a breath test.  The defendant refused.  The officer then drove directly to the hospital to obtain a sample of defendant’s blood for analysis.  The defendant refused to voluntarily provide a sample.  Nevertheless, twenty-five minutes after the defendant was stopped, a phlebotomist at the hospital withdrew the defendant’s blood.

The McNeely Court found no special facts of exigency beyond the dissipation of alcohol. Thus, the court determined that the nonconsensual, warrantless blood draw violated the defendant’s Fourth Amendment rights.

McNeely cites appellate court opinions from jurisdictions sharing its view that the exigency exception to the warrant requirement carved out in Schmerber requires a showing of exigencies beyond the evanescence of alcohol, see United States v. Chapel, 55 F.3d 1416 (9^th Cir. 1995); State v. Johnson, 744 N.W.2d 340 (Iowa 2008); State v. Rodriguez, 156 P.3d 771 (Utah 2007), as well as opinions from courts considering the rapid dissipation of alcohol by itself a sufficient exigency, see State v. Machuca, 227 P.3d 729, 736 (Or. 2010); State v. Netland, 762 N.W.2d 202 (Minn. 2009); State v. Bohling, 494 N.W.2d 399 (Wis. 1993).

North Carolina appears to fall on the dissipation-plus side of the interpretive divide. In State v. Fletcher, 202 N.C. App. 107 (2010) (discussed here), the court found “the exigency surrounding obtaining a blood sample when blood alcohol level is at issue . . . and the evidence of a probability of significant delay if a warrant were obtained,” to constitute sufficient evidence of exigent circumstances.  The court’s consideration of the officer’s testimony about the distance to the magistrate’s office and the potential wait there as well as at the hospital indicates that dissipation alone may not establish an exigency sufficient to excuse the warrant requirement.  The Fletcher court also upheld as constitutional G.S. 20-139.1(d1), which provides that if a person charged with an implied consent offense refuses testing, “any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine,” characterizing this provision as the state legislature’s “codif[ication] of what constitutes exigent circumstances with respect to DWI’s [sic].” The “under the circumstances” clause in G.S. 20-139.1 appears to reflect the view that dissipation may not, in all circumstances, amount to an exigency.