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US Supreme Court: Natural dissipation of alcohol does not establish a per se exigency sufficient by itself to justify a warrantless blood draw

Missouri v. McNeely, USSC No. 11-1425, 4/17/13

United States Supreme Court decision, affirming State v. McNeely, 358 S.W.3d 65 (Mo. 2012)

In a decision that works a major change in Wisconsin law governing nonconsensual, warrantless blood draws in OWI cases, the U.S. Supreme Court holds the evanescent quality of alcohol in a suspect’s bloodstream does not in and of itself create an exigent circumstance:

The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. (Slip op. at 1).

This case arose out of  a “routine” OWI arrest in Missouri. The Missouri Supreme Court held that the warrantless blood draw in the case was unreasonable because other than the natural dissipation of blood-alcohol, there were no factors showing an exigency. It relied on Schmerber v. California, 384 U.S. 757 (1966), which it read as requiring more than mere dissipation of blood-alcohol evidence to establish exigent circumstances. (Slip op. at 3-4, 21-22). The state petitioned the Supreme Court for review, arguing for a per se rule for blood testing in drunk-driving cases–namely, that whenever an officer has probable cause to believe a person has been driving under the influence of alcohol, exigent circumstances justifying a warrantless blood draw necessarily exist because BAC evidence is inherently evanescent. (Slip op. at 8, 20-22).

A majority of the Supreme Court disagrees, concluding that the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, but does not do so categorically.  (Slip op. at 13). Starting from the well-established principles that taking blood is a search and that a warrantless search is unreasonable unless if falls within a recognized exception to the warrant requirement, the Court notes that the exigent circumstances exception has always depended on the totality of the circumstances. (Slip op. at 4-6). Like the Missouri Supreme Court, it conclude Schmerber did not establish a categorical rule allowing warrantless blood tests based solely on the dissipation of alcohol from the bloodstream. (Slip op. at 7-8). Instead, the decision in Schmerber, which involved a warrantless blood test of a defendant arrested for an OWI after having been in a car accident, “fits comfortably within our case law applying the exigent circumstances exception” because it was based on the totality of the circumstances–specifically, the fact that “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, [so] there was no time to seek out a magistrate and secure a warrant.” (Slip op. at 7-8, 9, quoting Schmerber, 384 U.S. at 770-71).

In addition to establishing that Schmerber did not create a per se rule, the Court rejects the state’s other arguments for such a rule. First, the Court rebuffs the claim that a case-by-case approach will not provide adequate guidance to police deciding whether to conduct a warrantless blood draw; case-by-case determinations are not unusual in Fourth Amendment cases, and “the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” (Slip op. at 15). The Court also flatly rejects the claim that blood testing in OWI cases implicates only minimal privacy interests because blood draws are commonplace and because motorists have diminished expectations of privacy: “We have never retreated … from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.” (Slip op. at 16-17). Finally, the Court accepts the government has an interest in combating drunk driving, but concludes those interests can be–and have been–advanced by policies other than a per se exception from the warrant requirement for blood draws in OWI cases. (Slip op. at 16-20).

In short, then:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. ... We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards [ v. Wisconsin], 520 U. S. [385], 393 [(1997)]. (Slip. op at 9-10).

The Court’s rejection of a per se rule changes Wisconsin law because State v. Bohling, 173 Wis. 2d 529, 539, 494 N.W.2d 399 (1993), adopted the per se rule the Court now repudiates. In Bohling the supreme court concluded (over a three-judge dissent) that Schmerber could be read in one of two ways: 1) as holding that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving offense; or 2) as holding that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw. Bohling held that the first reading was the “more reasonable interpretation,” but the Supreme Court now makes it clear the second reading is the correct one. Consequently, both the per se rule adopted by Bohling and the reasons it gave for adopting the rule are invalid.

And not only Bohling, but also the rulings that were premised on its per se rule. Most prominently, perhaps, is State v. Faust, 2004 WI 99, 274 Wis. 2d 183, 682 N.W.2d 371, which relied heavily on Bohling in holding that a suspect who gave a breath test could still be subjected to a warrantless blood draw because the dissipation of alcohol by itself creates an exigency. (See our post for further summary.) Given the focus on the totality of the circumstances, the preservation of BAC evidence using a breath test should mean (as the Faust dissenters argued) there is no longer an exigency. Likewise State v. Malinowski, 2010AP1084-CR (Wis. Ct. App. Nov. 30, 2010) (unpublished but citable for persuasive value), which held that the logic of Bohling covers controlled substances as well as alcohol. That extension of Bohling is now as untenable as  Bohling itself.

With the rejection of the per se rule a police officer’s default procedure should be to get a warrant if he or she wants to take blood from a OWI suspect. The Court notes that should be easier to do these days, given the advances in communication technology that allow more expeditious processing of warrant applications. (Slip op. at 10-12). (On that point, note that the officer in this case testified he had been able to get blood-draw warrants quickly in other cases but hadn’t tried in this case only because he believed a warrant wasn’t necessary. (Slip op. at 21).)

But beyond that default, what should lower courts (and litigators, and police) look at in deciding whether there are exigent circumstances for a warrantless blood draw in an OWI case? Certainly the opinion in Schmerber provides an example of an application of the proper test. And, logically, the facts regarding the officer’s ability (or inability) to get a warrant quickly in the particular case should come into play. But beyond that, the opinion offers little guidance. In fact, five justices say the only issue the Court can decide is that the Fourth Amendment does not allow the police to draw blood without a warrant in all OWI cases based solely on the dissipation of alcohol:

Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. (Slip op. at 22-23).

Note, however, that Justice Kennedy, who provided the fifth vote for most of the conclusions of the lead opinion, suggests that states and local authorities should be able to adopt “rules, procedures, and protocols” to help officers meet the reasonableness requirements of the Fourth Amendment. (Concur. at 1). Three other justices (Roberts, Breyer, and Alito) agree with the majority’s rejection of a per se rule, but fashion what the plurality says (slip op, at 14) is itself categorical rule: If there is time secure a warrant before blood is drawn, the police must seek one; but if the officer reasonably concludes there was not sufficient time, of he applied for a warrant but didn’t get it before blood could be drawn, the search is still reasonable. (Concurrence/dissent at 8-9). (If you’re counting heads and wondering how the ninth justice voted, there was a sole dissent by Thomas agreeing with the state’s argument for a per se rule.)

A final point: This decision obviously applies to searches occurring after today, but what about searches that occurred before today? The answer is that the state will argue that in conducting warrantless blood draws before today, Wisconsin police relied in good faith on Bohling and that the blood test results should therefore not be suppressed. That argument is likely to prevail, just as it did a few years ago after Arizona v. Gant, 129 S. Ct. 1710 (2009), clarified (or changed) the rule about searching a car incident to the arrest of an occupant. For more on how the good faith exception to the exclusionary rule ultimately precluded retroactive application suppression of evidence obtained in violation of Gant, see Davis v. United States, 131 S. Ct. 2419 (2011) (discussed here and here), and State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97 (discussed here), and State v. Littlejohn, 2010 WI 85, 327 Wis. 2d 107, 786 N.W.2d 123.

UPDATE (8/19/13): If you are considering a challenge to police conduct that occurred before McNeely in reliance on Bohling and are looking for some guidance on whether there’s an argument that the good faith rule in Davis doesn’t apply, take a look at Orin Kerr’s recent post on the subject. Kerr, who represented Davis in the Supreme Court, gives an overview of how Davis has been applied in lower courts over the last two years.

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{ 3 comments… add one }
  • Rick Sankovitz April 18, 2013, 7:28 am

    Thanks for the very comprehensive post, and anticipating all the next steps, including retroactivity. Best analysis of the opinion I have read so far.

  • Jason April 28, 2013, 11:18 am

    Of note, I believe, is the application of NcNeely to an OWI – 1st in WI. Drawing guidance from McNeely as to the importance of a warrant in the OWI context, and under the rationale of Welsh v. Wisconsin (warrantless entry into home for OWI – 1st offense for blood evidence is unlawful because sufficient exigent circumstances do not give rise based on relative importance given to OWI – 1st by legislature), there is an argument that a warrantless blood draw in an OWI 1st case would never be lawful. Of course, both “persons” and “houses” are enumerated in the Fourth Amendment. The rationale of Welsh should apply to a warrantless entry into the body for blood evidence in OWI – 1st cases as it does to the home.

  • Steven House December 7, 2013, 7:52 pm

    On the retroactive application issue, also take a look at United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013) From FourthAmendment.com:

    http://fourthamendment.com/blog/index.php?blog=1&p=9599&more=1&c=1&tb=1&pb=1#more9599

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