BB&K Police Chief Bulletin: DUI Blood Test - Alcohol Dissipation Does Not Justify Warrantless Blood Test for Drunk Driving

by Best Best & Krieger LLP

Overview: The U.S. Supreme Court recently ruled that the natural dissipation of alcohol in the bloodstream did not necessarily create an exigent circumstance justifying a warrantless blood test in all DUI cases. Missouri police forced a driver to take a blood test following a suspected DUI stop. The driver moved to suppress the blood test results, claiming that the warrantless physical intrusion violated his Fourth Amendment rights to be free from unreasonable searches. The Supreme Court agreed, finding that declining blood alcohol levels alone did not create exigent circumstances “so compelling” as to make a warrantless blood draw reasonable in this case. The Court declined to adopt a blanket rule of exigency that would have permitted warrantless blood draws in all DUI cases, regardless of the circumstances. Instead, the Court stated that in DUI investigations, if officers could reasonably obtain a warrant before taking a blood sample, they were required to do so.

Training Points: This ruling will likely require a shift in the collection of blood evidence during DUI investigations. In most situations, officers will need to obtain a search warrant prior to obtaining a blood sample if the suspect does not give consent. The previous argument of exigency due to the natural absorption and elimination of alcohol in the blood is not sufficient by itself. Additional “special facts” must be articulated to show that obtaining a warrant is impractical under the circumstances.

For California agencies, a potential issue exists in the form of Penal Code section 1524, which does not provide for the issuance of a search warrant for misdemeanor DUI investigations. A legislative fix for this potential issue will be necessary.

In the meantime, agencies should consider developing a streamlined protocol for search warrant applications to secure blood evidence in DUI cases. Such a protocol should consider coordination with the local prosecutor and development of template warrant applications that can be quickly revised with specific facts from an investigation. It may not be practical to obtain a search warrant for all refusal cases, but for routine DUI stops, using template warrant applications can save time. Agencies should also consider other driving offenses that do not require a blood draw, and the utility of breath tests. Of course, it remains critically important to document probable cause in detail, setting forth the objective symptoms of intoxication and other elements of all suspected crimes. In order to assist in securing convictions, agencies should consider discussing the impact of this decision with the local prosecutors, and agencies should consult with legal counsel prior to implementing revised policies, procedures and practices.

Summary Analysis: In Missouri v. McNeely, a Missouri police officer stopped a seemingly intoxicated Tyler McNeely for speeding and crossing the centerline. He failed a field sobriety test and refused to take a breath test. The officer took him to the hospital and ordered a lab technician to draw a blood sample without McNeely’s consent or a search warrant. McNeely’s BAC tested above the legal limit. McNeely moved to suppress the results, claiming that taking his blood without a warrant violated his rights. Missouri contended that the “inherently evanescent” nature of BAC evidence in all drunk-driving cases created exigent circumstances, making the warrantless search reasonable. The Supreme Court disagreed, finding that, unlike other cases involving the destruction of evidence, the gradual and “predictable” loss of BAC evidence was “inevitable” between the time of the arrest and blood test, even if police had a warrant. Based on these facts, the Court concluded that the dissipation of alcohol alone was not sufficient to create an exigency justifying the physical intrusion without a warrant.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

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