– “Do you understand your rights as I have read them to you?”
– “Yes I do.”
– “Will you submit to a blood test?”
– “No, I’d rather not.”
Here comes the frightening question: Can the officer force me to take a blood test, even though I do not consent to one?
For years this question was up in the air. Finally, on April 17, 2013, the Supreme Court of the United States has provided some guidance, although not answering all open questions. Let’s dig in.
It all began on November 12, 1966 when Armando Schmerber was arrested under suspicion of DUI after being involved in a one-vehicle accident in Los Angeles, California. He was taken to the hospital where he refused to take a blood test. Despite Schmerber’s refusal and the officer’s lack of a search warrant, the officer ordered the attending physician to extract a blood sample from Schmerber, which showed that he was under the influence of alcohol. The result was admitted into evidence and Schmerber was convicted of DUI. He appealed his conviction arguing the the blood test was inadmissible based on violations of due process, his privilege against self-incrimination, his right to counsel, and his right not to be subjected to unreasonable searches and seizures.
The case eventually reached the United States Supreme Court, and on June 20, 1966, the Court rendered it’s stunning decision – the blood test result was admissible.
The most important part of the Schmerber decision was its impact on Fourth Amendment Jurisprudence in DUI stops. The Court reasoned that due to the disappearing nature of alcohol while in a person’s system, and “where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant,” and the court concluded that “the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Schmerber v. California, 384 U.S. 757, 770-771 (1966).
Therefore, no warrant was required and the Court essentially cited the exigent circumstances exception to the warrant requirement as controlling and sufficient to extract blood from a suspect. No warrant is required because the Court opined that it would take too long for an officer to obtain one.
47 years later, Missouri v. McNeely, 133 S.Ct. 1552 (2013) was decided. The facts of McNeely are almost identical to those of Schmerber. Tyler McNeely was arrested for DUI after he was seen speeding and crossing the center line. On the way to the station, he told the officer that he will not take a breath test, so the officer rerouted course to the nearest hospital for a blood draw. At the hospital, McNeely refused the blood test, and a lab tech, under the directive of the arresting officer, took McNeely’s blood for testing without a warrant. The results showed McNeely’s BAC at 0.154 (the legal limit being 0.08) and McNeely moved to suppress the results as violative of his Fourth Amendment rights.
In a surprising turn of events, the Supreme Court ruled in his favor. The Court clarified Schmerber with respect to warrantless searches, saying that “[i]n 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.” See Missouri v. McNeely, 133 S.Ct. 1552 (2013).
Primarily, the court noted that advances in technology now allow for quicker and easier warrant processing. “[I]n the 47 years since Schmerber was decided,  more expeditious processing of warrant applications [have become available], particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone.” As a result, the Court refused to adopt the state’s per se rule that warrantless blood searches are allowed in every DUI case and further urged that each case must be looked at and decided on it individual facts.
The law as it currently stands requires something more than mere exigency to allow for a warrantless blood draw from a DUI suspect. What might that be remains to be seen. Michael J. Oh, an Assistant City Attorney for Henderson Police Department, in Henderson, Nevada wrote in Police Chief Magazine that “[w]hen a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. However, if an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained. The officer must be able to articulate what factors were present that created an exigent circumstance. It is important to note that the exigent circumstance cannot be a result of the officer’s conduct.” Michael J. Oh, “Missouri v. McNeely: What Does This Mean for DUI Enforcement?” Chief’s Counsel, The Police Chief 80 (August 2013): 16–17.
Finally, it is important to note that Kentucky goes a step further than the McNeely decision. KRS 189A.105(2)(b) only permits officers to extract blood in cases where there is an injury or a fatality to one of the parties. Combs v. Commonwealth, 965 S.W.2d 161 (1998) clarified the statute by holding that, “[a] search warrant may be issued in the case of DUI when a person is killed or suffers physical injury as a result of the incident in which the defendant has been charged. The natural corollary of this subsection is that a search warrant may not be issued in the case of a DUI when neither death nor physical injury results.” (Emphasis added).
“The ordinarily legitimate action of obtaining a search warrant when a suspect refuses cannot be used to avoid the standard set by the General Assembly which established the requirement of death or physical injury for a blood alcohol test.” Id. Therefore, the court held that “the admission of the results of a blood test in a DUI case not involving death or physical injury is improper.” Id. However, this rule only applies in cases where the suspect refuses to submit to a blood draw; it does not apply if the suspect consents to be tested. SeeCommonwealth v. Lopez, 3 S.W.3d 351 (Ky. 1999).
Thus, the law in Kentucky is more narrow for DUI blood draws than the current National standard which would permit the officer to obtain a warrant in a non-injury, non-fatality situation.
Some questions still remain — primarily, what is the little extra that is needed to allow an exigent circumstances exception for a blood draw? What sort of fact pattern would create a scenario where SCOTUS will say that exigent circumstances plus (blank) are present and the warrantless blood draw is constitutional? To answer this question, we will have to wait and see.
Hope this blog entry clears up a few questions on whether or not an officer can force a needle into your arm.
Be safe out there, folks.
If you are charged with DUI, you need competent and experienced counsel to help you with your case. Don’t delay, call the DUI Guy today. (502) 931-6788.
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