Yesterday, the Supreme Court granted certiorari in Missouri v. McNeely
(No. 11-1425) to determine whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
According to the opinion of the Missouri Supreme Court, a Missouri state highway patrolman stopped McNeely's truck for speeding at 2:08 a.m. As the patrolman spoke with McNeely he came to the conclusion that McNeely was intoxicated based on McNeely's bloodshot eyes, slurred speech, and the smell of alcohol on his breath. As a result, the patrolman asked McNeely to get out of his car and perform standard field-sobriety tests. Concluding that McNeely failed the sobriety tests, the patrolman arrested McNeely for driving while intoxicated and asked him to consent to a breath test while in the patrol car. When McNeely refused to consent, the patrolman drove McNeely to the local hospital and, directed a phlebotomist to draw McNeely's blood over McNeely's objection. At no point in the process had the patrolman attempted to seek a warrant; according to the patrolman, he thought no warrant was necessary because of a recent article he had read purportedly describing recent changes in Missouri's implied consent law.
McNeely moved to suppress the results of the blood test as a violation of his Fourth Amendment rights. The trial court sustained the motion, and the issue reached the Missouri Supreme Court on the prosecution's interlocutory appeal. In its opinion affirming the trial court's judgment, the Missouri Supreme Court distinguished the case from Schmerber v. California
, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), stating: "[t]here, the Supreme Court provided a limited exception to the warrant requirement for the taking of a blood sample in alcohol-related arrests. Id.
at 772, 86 S.Ct. 1826. The holding, which was expressly limited to the facts of that case, ultimately rested on certain 'special facts' that might have led 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. Id.
at 770-71, 86 S.Ct. 1826. 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 time had to be taken both to investigate the accident scene and transport the defendant to the hospital. Id.
These events left no time for the officer to seek out a judge to secure a search warrant. Id. Schmerber
held that these 'special facts' permitted a warrantless blood draw. Id.
, at 771, 86 S.Ct. 1826."
"The patrolman here, however, was not faced with the 'special facts' of Schmerber
. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber
justifying an officer to order a blood test without obtaining a warrant from a neutral judge. "