Supreme Court Rules Against Per Se Blood Testing Rule For DUI Suspects

The U.S. Supreme Court
The U.S. Supreme Court

Official Portrait of Justice Sonia SotomayorThe 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.

40 thoughts on “Supreme Court Rules Against Per Se Blood Testing Rule For DUI Suspects”

  1. “No love for Nino?” I’d like to know why he told J. Thomas to dissent.

  2. bill, Sounds like you’re taking DUI arrests very personally. Your statement is ludicrous.

  3. No love for Nino? He’s been making rulings you all like. Come on..give him a little love, even though he is a “racist.”

    With the legalization of cannabis there is going to be some very difficult lawmaking. Cannabis stays in a persons system MUCH longer than alcohol, or other RX or street drugs. Finding a quick and convenient test and then setting a specific level of impairment is going to be quite challenging. I predict it will make all these alcohol rulings look like a piece o’ cake.

  4. Next the igPays will want to stick a needle in your arm to test for Aids because you used the urinal at the public courthouse.

  5. The Missouri Supreme Court ruled the correct way in this case and was affirmed. Sometimes that court is Unreconstructed as in their refusal to acknowledge the 14th Amendment right to liberty, due process, a fair trial and hence an implementation of the federal “circumstantial evidence rule” by trial courts and appellate courts in crminal cases. The U.S. Supreme Court cases of U.S. v. Leary and v. Virginia are ignored by the Missouri Supreme Court. I previously did a rant about this and the Samuel Freeman case and the Doc Nash case from the MoSupCt.

    Unreconstructed Courts, those that set up their own constitutional rubric and ignore the federal constittutional prohibitions and guarantees, need to be a topic on this blog.

  6. Unless there is bodily injury or property damage, LEO should not have he right to arrest anyone for DUI or DWI.

    In a free society, it should be illegal to do so. In a police state, it isn’t surprising that LEO can do such things in order to get more people into the
    SYSTEM and help keep special interests in power longer, and help maintain their COLAs.

  7. AY:

    No. A DOJ lawyer would toss the phrase “national security” into a brief and the justices would trip over their judicial robes accommodating the government.

  8. Mike,

    I agree with you… Now, if it had been an FBI agent, DOT or some other Federal Officer….. Do you think with the same facts that the court would have rendered the same decision….. Just my skepticism of the Feds….

  9. This is actually a significant decision because it reminds us that the entire justice system is built upon a foundation of due process that is not subject to the whims of an arresting officer.

  10. rafflaw 1, April 18, 2013 at 10:39 am

    Good decision. Is there any doubt that Justice Thomas is unfit for his job as a Supreme Court justice?
    No doubt in my mind either.

  11. mespo – how can I, a citizen of a different state, consent to a ‘search’ by simply showing up in that state? I have no contract with VA simply by driving down FEDERAL highway 95?

    this seems wrong outside of the legality of the rest of the stuff.

  12. I’ve been reading up lately on the vast scope of ordinary crimes that can be investigated and prosecuted under the provisions of the Patriot Act, in other words….lies, theft, even profanity, can be labeled terrorism and prosecuted with great secrecy and little evidence; and yet drunk driving requires a warrant to verify intoxication? I wonder how they missed that one while using anti-terror laws to create a virtually Constitutionally un-protected way of prosecuting crime?

  13. Here in Virginia, we have an “implied consent law” which requires either the blood or breath test as a condition of the “privilege” of operating a motor vehicle. Failure to comply results in civil loss of license for one year for the first offense.

    § 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood.

    A. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.

    B. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.

    C. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs.

  14. Michael

    You beat me to it. This is a good ruling, but now they’ll just have to go through the actions of getting an almost sure-thing, rubber stamped warrant. Better than empowering the cops though, for sure.

  15. Seems like a good decision. I have been told by criminal defense counsel, however, that getting a warrant to draw blood is mostly a formality/rubberstamp in most locals. The police know and say the correct magic words and the judge signs the warrant. But, I suppose a rubberstamp is better than no stamp at all.

  16. Rafflaw, he is also impeachable if anyone would give it due consideration.

  17. This was a correct ruling. I barely drink these days and certainly don’t drink and drive. However, with the assistance of groups like MADD the emphasis on policing DUI has degraded our society towards a police state.

  18. Good decision. Is there any doubt that Justice Thomas is unfit for his job as a Supreme Court justice?

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