Will Police Officers Need A Warrant To Take Nonconsensual Blood Samples in DUI Cases?

by appealattorneylaw

Florida’s DUI defense attorneys should know that the United States Supreme Court heard oral argument in a DUI blood case on January 9, 2013.  In Missouri v. McNeely, SC 11-1425, the question presented is: 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.

Although the Palm Beach Post published a brief report on the arguments, a more thorough discussion of the oral argument can be found at SCOTUSblog.  After reading the SCOTUSblog discussion, it seems that the Justices may be leaning towards requiring a warrant before a blood draw can be taken, except in exigent circumstances.  Here’s a few paragraphs from SCOTUSblog:

Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court.  Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.

A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail.  “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?”  That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion.   And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.

Koester [also] learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument.   Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon.   “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.

Given the tenor of the Justices’ questions at oral argument, this case has potentially huge implications for Florida’s Implied Consent law.  Florida’s DUI defense and criminal appeals attorneys should stay tuned.  To read a transcript of the oral arguments, click here.  The audio recording should be available at the end of the week, on Friday, January 11, 2013.  The general page for links to the US Supreme Court audio recordings can be found by clicking here.