U.S. Supreme Court to Tackle Nonconsensual, Warrantless Blood Draws

Written by Lindsay E. Raber, Esq.

In less than one week, the Supreme Court will officially begin its October 2012 term and has already granted review of some notable cases. One in particular, Missouri v. McNeely (11-1425), will undoubtedly have widespread implications in the criminal justice community and Fourth Amendment jurisprudence.

In the pivotal U.S. Supreme Court case Katz v. United States, the justices stated, “Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause.”[1] The compulsory administration of a blood test “plainly involves the broadly conceived reach of a search and seizure.”[2] Warrantless searches are “per se unreasonable… subject only to a few specifically established and well-delineated exceptions.”[3] One such recognized exception is exigent circumstances, which “refers to those situations in which law enforcement agents will be unable or unlikely to effectuate and arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.”[4]

McNeely involved a traffic stop turned DUI investigation, followed by the compulsory administration of a blood test against the defendant’s wishes. This scenario was previously expounded upon by the Supreme Court in Schmerber v. California, which permitted the warrantless taking of blood samples in light of “‘special facts’ that might have caused the officer to reasonably believe he was faced with an emergency situation in which the delay in obtaining a warrant would threaten the destruction of evidence.”[5] Concerning special facts in that case:

The threat of evidence destruction was caused by the fact that the percentage of alcohol in a person’s blood begins to diminish shortly after drinking stops and because there was an accident requiring time to be taken to both transport the defendant to the hospital and to investigate the scene of the accident.[6]

However, the Court in McNeely characterized the facts as “a routine DWI case” where there were “no other ‘special facts’ of exigency.”[7] As such, “[i]n routine DWI cases, in which no ‘special facts’ exist other than the natural dissipation alcohol in the blood, a warrant must be obtained before [a nonconsensual blood draw occurs].”[8] Thus, on Supreme Court review, McNeely presents the following constitutional inquiry: “police authority to take a blood sample from a driver who allegedly was drunk, when the officer has no warrant but wants to act quickly because of the chemical fact that alcohol in the blood dissipates over time.”

Indeed, only two months ago, I discussed a Superior Court of Connecticut case addressing this very scenario following a deadly automobile accident. During a motion to suppress a blood toxicology report, the State made the same argument set forth by Missouri – “evidence of the defendant’s blood alcohol level would have been lost if not obtained within a reasonable time”[9] – and equally failed because “the record [did] not contain any information that supports the finding that an exigency actually existed.”[10] How the Supreme Court decides on this question will undoubtedly have a widespread impact on police investigations involving intoxicated drivers.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] United States v. Katz, 389 U.S. 347, 357 (1967).

[2] Schmerber v. California, 384 U.S. 757, 767 (1966).

[3] State v. Aviles, 277 Conn. 281, 293 (2006).

[4] Id.

[5] Schmerber v. California, 384 U.S. 757, 770-71 (1966).

[6] Id.

[7] State  v. McNeely, 358 S.W.3d 65, 74 (Mo. 2012).

[8] Id.

[9] State v. D’Andrea, 2006 Conn. Super. LEXIS 3381  (2006).

[10] Id.