As a Massachusetts DUI attorney, the issue of police officers unlawfully obtaining blood samples for persons suspected of driving intoxicated often comes up during defense. The act of not obtaining a warrant prior to obtaining a blood sample in routine DUI stops is a direct violation of the 4th amendment.

This issue was recently brought to the Missouri Supreme Court in the case of Missouri v McNeely. During last week’s hour long hearing for this pending case, the Justices weighed the potential outcomes for ruling on this controversial issue. If there is any indication of how this case will prevail based on the hearing discussions, it is that the United States Supreme Court will most likely conclude that police across the nation are not allowed to order, on their own authority, the taking of blood samples from those suspected of drunk driving. They will need to obtain a search warrant, with few exceptions.

In McNeely, a Missouri driver was pulled over for allegedly driving while intoxicated. After failing all field sobriety tests and refusing a Breathalyzer, the police officer drove him to the local hospital. The driver verbally refused a blood sample, but the officer told the lab technician to proceed. In court, the officer stated he did not think he needed a warrant because he read that Missouri law allows an officer to obtain a blood sample if consent is merely “implied”. However, when the trial court judge ruled in favor of the defendant, Missouri officials took the case to the Supreme Court, arguing that there is a split between state and federal courts on the issue of when officers may obtain blood samples without a warrant.

The issue of obtaining search warrants for blood samples is not new. Typically, courts have viewed this act as intrusive and a direct violation of the 4th amendment. The 4th amendment requires that proper search and seizures can only be performed with warrants supported by probable cause. However, in 1966, in the case of Schmerber v California, the court ruled that in “exigent circumstances” it did not violate the 4th amendment. Specifically, “exigent circumstances” defined in this case pertained to car accidents/emergency situations in which a driver was suspected to be intoxicated. It was concluded that police did not have time to get a warrant because they had to take the suspect to the hospital for injuries and they needed to investigate the scene of the accident.

However, the courts have often used the ruling in Schmerber to further define “exigent circumstances.” For example, police have long argued that there is little time to obtain a warrant because blood alcohol levels drop dramatically as time progresses. Therefore, police miss the opportunity to obtain true blood alcohol levels. They further argue that often, these cases arise in the middle of the night, making it difficult to get a warrant in the allotted time necessary. Many states have therefore ruled that because alcohol levels quickly dissipate, that this fact is an “exigent circumstance” that justifies getting a blood sample without a warrant.

However, at the oral argument, the Justices pointed out that the Schmerber case provides a strict exception that is limited to accident/emergency situations only, and not to the quick dissipation of blood levels. The Supreme Court further stated that the Schmerber ruling was not a general relaxation of warrant requirements.

Based on this hearing, it appears evident that the United States Supreme Court strongly feels that obtaining a warrant is the preferred approach and I would expect the Court to affirm the decision of the Missouri Supreme Court.