DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Missouri v. McNeely

 Posted on October 03, 2013 in DUI

The U.S. Supreme Court Decision belows underscores why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.
MISSOURI V. MCNEELY

THIS U.S. SUPREME COURT DECISION OVERRULES SEVERAL CALIFORNIA COURT OF APPEAL CASES THAT ERRONEOUSLY HELD POLICE MAY FORCIBLY TAKE A BLOOD SAMPLE FROM A DUI SUSPECT WITHOUT A WARRANT BASED SOLELY ON A LAWFUL ARREST AND MEDICALLY APPROVED MANNER OF DRAWING BLOOD.

WHAT DOES IT MEAN AND HOW IS IT PLAYING OUT?

The Facts in McNeely : DUI suspect refused both breath and blood testing and was subjected to a forced blood draw at a hospital. The State did not argue that exigent circumstances existed which excused a warrant, and the arresting officer did not identify in his testimony any circumstances suggesting that he faced an emergency or unusual delay in trying to obtain a warrant. The blood-alcohol evidence was ordered suppressed by the trial court based on a violation of the Fourth Amendment. The Supreme Court of Missouri affirmed.

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

The McNeely Holding:

Parts I, II–A, II–B, and IV - “[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber [car accident investigation and unconscious DUI suspect in hospital], it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Judgment affirmed.

“When officers in a drunk driving investigation can reasonably obtain a warrant without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so (citing McDonald v. United States , 335 U.S. 451, 456)."

“[T]echnological developments that enable officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.

Part II-C: Rejects Justice Robert’s bright-line rule that an exigency exists if there is insufficient opportunity to obtain a warrant between the time of arrest and the time it takes to subject the motorist to a blood draw. (Kennedy did not join this portion of the opinion, expressing the view that states could possibly formulate a bright line rule based on the totality of circumstances).

Part III: “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 [citing license suspensions and admissibility of chemical test refusal in criminal prosecutions]." (Kennedy did not join this portion of the opinion, but expressed no disagreement with this statement in his separate concurring opinion)

ROBERTS, J., joined by BREYER and ALITO, JJ., (concurring in part and dissenting in part):

Officers need guidance. Agrees with majority that dissipation of alcohol in the human body does not create a per se exigency justifying warrantless blood draws in all DUI cases. However, if a warrant cannot reasonably be obtained within the time it takes the officer to have the blood drawn, than there is an exigency.

Footnote 2 : A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police [so they could argue there was no time to get a warrant], but such a procedure would pose practical difficulties and, as the Court noted in Schmerber , would raise additional and serious Fourth Amendment concerns.

THOMAS, J., dissenting: “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment."

The McNeely decision presents a number of issues that California trial courts are now forced to address:

I. Totality of the Circumstances

Look for the California District Attorney’s Association and law enforcement agencies to seize upon the concurring opinion of Kennedy, the concurring/dissenting opinion of Roberts (joined by Breyer, and Alito), and the dissenting opinion of Thomas, to push California courts to establish bright line rules for permitting warrantless blood draws. Some reasonably predictable ones will be:

• Motor vehicle accident
• Passenger(s) needing assistance
• Necessity for medical attention
• Time of day and availability of magistrate
• Number of officers in police department

In the interim, trial courts are considering these and other circumstances.

II. Good Faith Exception

Where a warrantless blood draw without lawful consent is found to have occurred, the exclusion of the blood-alcohol analysis will not necessarily be excluded if a “good faith" exception to the exclusionary rule is established and found applicable. California’s trial courts and Superior Court Appellate Departments appear to be almost uniformly recognizing a “good faith" exception where the warrantless blood draw occurred prior to the McNeely decision. They shouldn’t be though, because the case they are relying upon is Davis v. United States , 131 S. Ct. 2419 (2011) (“…searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."), and the Davis finding of “objective good faith" was limited to binding appellate precedent from federal appellate courts and state courts of last resort. McNeely did not announce a new rule (it reaffirmed its 1966 decision in Schmerber ) and the California Supreme Court (the state court of last resort in California) never held that a warrant was excused based solely upon probable cause to arrest and a medically approved blood draw.

III. Retroactivity

Some trial courts are reportedly ruling that the McNeely holding is not retroactive - that it only applies to blood draws conducted after issuance of the decision. This too is not true, as the decision did not announce a new rule, and even if it did it still applies to all pending cases.

IV. Threat of Force Followed By Passive Submission

If the police threaten a DUI suspect with physical force and the suspect then submits to the blood draw without physical force being used, the consent is not lawful consent and the blood-alcohol or blood-drug evidence is still subject to suppression. See Bumper v. North Carolina .