The Supreme Court has handed down its decision in Missouri v. McNeely, which is linked below. Missouri sought to establish a per se rule that blood tests were always covered by the “exigent circumstances” exception under the fourth amendment because the alcohol blood level continues to fall with time. It was another example of how some police departments seek thoughtlessly to expand exceptions when current rules allow ample room for legitimate police needs. Only Justice Thomas voted to support such a sweeping new rule. My Supreme Court class reviewed this case and voted the same with the actual court in rejecting the claim (9-1). The class also voted 9-1 in predicting this result in affirming the lower court. The majority opinion below was written by Justice Sonia Sotomayor.
The reliance on the natural metabolization of alcohol would have left citizens subject to mandatory and unconsenting to blood samples taken by police. In this case, the driver, Tyler McNeely, refused to provide a breath sample or to consent to a blood test. The officer said that he read somewhere that you don’t need consent for a blood test. He was wrong.
Sotomayor reaffirms the prior rule that the need to conduct such warrantless tests “must be determined case by case based on the totality of the circumstances.” She was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan. Notably, Sotomayor notes the availability of telephonic warrants now reduces exigency claims and that experts can easily work back from BAC levels to show what the BAC was earlier in the day while a warrant was sought. She adds however:
Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.” State v. Rodriguez, 2007 UT 15, ¶46, 156 P. 3d 771, 779.
Justice Anthony M. Kennedy agreed with most of the decision but added that there was a need for greater guidance for police in terms of procedures. Chief Justice Roberts echoed the same need for greater guidance. However his dicta worried the majority because, Sotomayor wrote, “Under the chief justice’s rule if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances.”
It is notably however that 8 out of 9 justices rejected the per se rule sought by Missouri.
Here is the opinion.