Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely the United States Supreme Court held that police must normally get a warrant before taking a non-consensual blood sample to test a driver's blood alcohol level. The decision could have a major impact on the way that police obtain blood samples. It could also create problems for implied consent laws which are essential to drunk driving prosecution in all 50 states.

The Old Law, Schmerber v. California

47 years ago, the Supreme Court decided Schmerber v. California, 384 US 757 (1966). Schmerber crashed his car, he was arrested and his blood was taken without his consent or a warrant. He was charged with Operating Under the Influence and moved to exclude the warrantless test. The Supreme Court sided with the prosecution and allowed the test. The majority reasoned that getting a warrant was impractical and unnecessary since the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." p. 770.

Such emergencies are known as exigent circumstances and when they exist, like when the suspect is about the flush the drugs, officers are allowed to skip the warrant and just seize the evidence. Of course, the "destruction of evidence" at issue here, is the body's metabolism, which reduces the blood alcohol content (BAC) by about .02 per hour. For the last few decades Schmerber has been taken to mean that human metabolism creates an exigency permitting warrantless blood testing if police chose.

The New Law, Missouri v. McNeely

In this case, the court considered very similar facts and came to the opposite conclusion. McNeely was pulled over for speeding and erratic operation and after a brief roadside investigation, he was arrested for Drunk Driving. In the cruiser, he told the officer that he would refuse a breath test. McNeely was taken directly to the hospital where he was informed of his duty to take an alcohol test under Missouri's "implied consent law." He refused to consent and the officer directed a hospital worker to draw blood anyway. The test was used to charge Operating Under the Influence and the defense attorney moved to suppress the test arguing that the police should have got a warrant. Here, there was no crash or other delay and the officer testified at suppression that he could have sought a warrant but simply chose not to. Slip p. 2. Justice Sotomayor wrote the opinion of the 5-4 majority siding with the defense and suppressing the test. The holding boils down to three points:

1. No Automatic Exigency:

The ephemeral nature of intoxication does not create an automatic exigency permitting warrantless blood draws in every case. The court rejected the prosecution's argument for a per-se rule endorsing the same:

• "We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." Slip p. 23.

2. Police Must Get Warrants:

A blood draw is a "search" and so police must get a warrant unless the defendant consents or there is some true exigency.

• "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." Slip p. 9

3. Exigent Circumstances Still Justify Warrantless Blood Draws:

The court must consider the "totality of the circumstances" to determine whether a warrantless blood draw was ok.

• "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." Slip p. 10.
• And then this: "exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process." Slip p. 13

In practice, the ruling might be a bunch of legal posturing that often renders the same result: Since metabolism does not automatically create an exigency, a warrant is needed; since a warrant takes time, that creates a delay where alcohol will be metabolized and BAC can drop; that delay creates an exigency permitting a warrantless test. Still, McNeely is definitely a good thing for the defense, at least warrants should be the norm.

Broader Impact: Implied Consent and Refusal

The holding might force some changes to the implied consent laws that all 50 states rely on in order to compel "consent" to chemical tests. This issue did not seem to register for Justice Sotomayor. She mentioned implied consent laws in the opinion, but only to show that states have lots of tools in the "making convictions easier" toolbox, and taking away automatic, warrantless blood draws will not handicap the prosecution:

States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense...Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. Slip p. 18.

So there you go: people have the right to keep police out of their veins without a warrant, but every state has a law that forces people to consent to these tests by punishing those who insist on a warrant. The problem is that threatening someone to force them to do something is called "duress" and consent given under duress is no consent at all.

Here are some ideas on how McNeely might impact implied consent and refusal law.

1. Implied consent laws, like Maine's, might be susceptible to constitutional challenges as applied since they punish people simply for exercising their constitutional right to refuse a search not authorized by warrant.
2. Mandatory test laws, like Maine's, which require a chemical test in every driving case where death has occurred or likely will occur, may be unconstitutional. Maine's law does not require probable cause or a warrant.
3. People who do not consent to a blood draw that is later approved by a warrant have a pretty good argument that they should not be punished more harshly for exercising their right to withhold consent for the search.
4. People who consent to a blood draw might have a shot at suppressing the test arguing that their consent was not valid since it was not given voluntarily.
5. Perhaps there is an argument that people who consent to breath testing did not do so voluntarily since they only gave consent under pressure from illegal implied consent laws. This one might be a tough sell.
6. When the driver refuses and no test is obtained, maybe there's an argument that the prosecution should not be allowed to mention the refusal since the defendant is only exercising his constitutional right to demand a warrant.

McNeely is not an earth shattering decision, arguably, it does not make any new law but just better articulates the rule of Schmerber. Still the explicit recognition that some operating under the influence chemical tests do require a warrant is a pretty major step forward and it's hard to predict all the consequences. It is going to be up to good criminal defense lawyers to figure out how to best use the case.