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    The Lawletter Blog

    CRIMINAL LAW: Search Warrant Requirement—Drunk Driving—No Per Se Exigency for Exception to Warrant Requirement

    Posted by Gale Burns on Mon, Jul 15, 2013 @ 16:07 PM

    The Lawletter Vol 38 No 4

    Mark Rieber, Senior Attorney, National Legal Research Group

    In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing in all drunk-driving cases.  Rather, in this context, such exigency must be determined case by case based on the totality of the circumstances.  In McNeely, after the defendant had been arrested for driving while intoxicated and had refused a Breathalyzer test, the highway patrol officer took him to a hospital for blood testing.  The defendant refused to consent to a blood test, but the officer directed a laboratory technician to take a sample.  The officer did not attempt to secure a search warrant before the sample was taken, because he believed it was not legally necessary to obtain a warrant. 

    The Supreme Court's decision resolved a split of authority on the question.  Id. at 1558 n.2 (citing cases).  While recognizing that exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process, the Court observed that adopting the State's per se approach would improperly ignore the current and future technological developments in warrant procedures and might well diminish the incentives for jurisdictions to pursue progressive approaches to warrant acquisition that preserve the protection afforded by the warrant while meeting the legitimate interests of law enforcement.

    Because the case before the Court was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and record did not provide the Court with an analytical 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," according to the Court,

    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.

    Id. at 1568.  The Court stated, however, that the inquiry "ought not to be pursued here where the question is not properly before this Court."  Id.

    Topics: legal research, warrant requirement, nonconsensual blood testing, breathalyzer refusal, blood test refusal, Missouri v. McNeely, drunk driving no per se exigency for warrantless b, The Lawletter Vol 38 No 4, U.S. Supreme court, criminal, Mark Rieber

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