Last month, the Supreme Court of the United States ruled on forced blood draws in the context of DUI investigations. Prior to that ruling, some police jurisdictions were forcing people that were suspected of driving under the influence to give blood by literally jamming a needle under their skin when they refused to give a breath test. Law enforcement in Indian River County, on Florida’s Treasure Coast has done this on several occasions. In the McNeely case, the State of Missouri sought a bright line rule stating that in a DUI, blood may always be taken without a warrant because of the immediate threat that evidence would be destroyed as the body naturally goes through its process of eliminating alcohol from the blood stream.
In that case, McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his rights under the 4th Amendment to the United States Constitution (bar against unreasonable searches and seizures).
JUSTICE SOTOMAYOR delivered the opinion of the Court with respect to these issues, concluding 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. However, Justice Sotomayor did not say that warrantless blood draws would be improper in all cases. The opinion of the Court was that there should NOT be a bright line rule in either direction, and that exigency (the exception to the warrant requirement) must be considered on a case by case basis.
Interestingly, McNeely speaks to DUI cases in general. One question that it potentially raises and must be litigated is whether Florida’s long standing law of taking blood in ALL cases with an accident involving death or serious bodily injury is unconstitutional under the McNeely ruling. According to McNeely, these cases may also need to be considered on a case by case basis, without the bright line rule set forth by the Florida Legislature.
While many on the defense bar are considering the McNeely case a huge win, it may have set a precedent for some jurisdictions to seek a warrant in EVERY DUI case to take blood from a suspect. The Court correctly points out that with new technology, the delay in obtaining a warrant is much less than it ever was before. After all, an officer could conduct a roadside investigation, type or speak his report and warrant application into an ipad or other tablet, email it to a judge for review and electronic signature and potentially have a signed warrant by the time the suspect gets to the hospital for the blood removal process. With the Intoxilyzer 8000’s known issues that are currently being litigated in Florida, and the back drop of a decades long fight between defense attorneys, the State of Florida and the Intoxilyzer makers for the source code to replicate the machine’s process (which the makers claim is proprietary), it seems more likely than not that the breath testing machine may become a thing of the past, and the blood draw the waive of the future. The only real question remaining is how do you (the public) feel about that?