Hello, readers! I understand that the Internet is abuzz with dissections of and discussions about President Obama’s State of the Union Address (and the subsequent responses from both the Republican Party and, surprisingly, the Tea Party); however, I think it’s time we take a step back and reminisce about the good old days of this past January. In particular, we should be reminiscing about January 9, 2013, when the case Missouri v. McNeely was heard. “But Lena,” you might be thinking, “it’s the middle of February! We’ve got a case about Section 5 of the VRA in twelve days and two—count them, two—same-sex marriage cases coming up! What could possibly as important as those topics?” Two words, dear readers: blood samples.
On October 3, 2010, Missouri resident Tyler McNeely was caught driving above the speed limit and was stopped by a police officer. When McNeely was pulled over by police officer Mark Wilder, he showed physical signs of intoxication and “performed poorly” on four sobriety tests. McNeely refused to give a breath test, so Winder took McNeely to the hospital to obtain a blood sample. After Wilder read McNeely the “Missouri Implied Consent” statement, McNeely refused to give a sample, and yet one was taken anyway. The sample proved that his blood alcohol level was above the legal limit, and McNeely was charged with driving while intoxicated. He “moved to suppress the evidence” of his blood sample, though, because it was taken without a warrant from Wilder. The trial court granted McNeely’s motion, but Missouri appealed because the “risk of McNeely’s blood alcohol level decreasing over time” was an “exigent circumstance” (an exception to the Fourth Amendment warrant requirement) that necessitated the immediate draw of McNeely’s blood. The Missouri Court of Appeals and the Missouri Supreme Court both held that the trial court was wrong in suppressing the blood sample, and the Supreme Court has now heard the case. (For more information, see here or here.)
This case is tricky, because, on the one hand, the Fourth Amendment guarantees that searches and seizures must be reasonable, and that to carry out these searches and seizures a warrant cannot be issued unless probable cause is established and the specifics of the search are outlined. McNeely’s blood sample was taken without consent and admitted as evidence in a court of law even though it was obtained without a warrant—that action was a clear violation of the Fourth Amendment. On the other hand, though, McNeely was visibly intoxicated and posed a danger to himself and others by driving in such a state; the charge of driving while intoxicated was appropriate. Also, the exigent circumstances exception has been widely recognized by courts for some time, so Missouri’s appeal on that basis was valid. Therefore, the question at hand on January 9 was whether a blood sample can be taken without consent or a warrant under the exigent circumstances exception to the Fourth Amendment.
As the FBI explains, the exigent circumstances exception was first outlined in the case United States v. Rengifo, heard by the Court of Appeals for the First Circuit in 1988. Rengifo defined exigent circumstances as occurring “when a reasonable officer could believe that to delay acting to obtain a warrant would… permanently frustrate an important police objective, such as to prevent the destruction of evidence relating to criminal activity or to secure an arrest before a suspect can commit further serious harm” (858 F.2d 800, 805 (1st Cir. 1988)). Twenty-three years later, the Supreme Court heard Kentucky v. King and provided a clearer set of guidelines for the exception: it applies “as long as the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment” (see the FBI article). It seems, from the facts of McNeely, that Officer Wilder did not violate the Fourth Amendment or threaten to do so, and thus Missouri’s appeal under the exigent circumstances exception was appropriate and constitutional.
Except, in this situation, it wasn’t. It’s one thing to break into a house because of exigent circumstances, but it’s another issue entirely when the excuse of “exigent circumstances” is used to justify the forcible drawing of blood from a man who had refused to consent to the procedure. Drawing blood is an invasive procedure involving needles, not just a search through a house, which changes the scope of the question. And on January 9, the Supreme Court agreed with this line of thinking—during oral arguments, the liberals and conservatives seemed to be in agreement that the exigent circumstances exception held no weight in McNeely. According to a SCOTUSBlog analysis of the oral argument, “Two impressions were dominant throughout the argument: the Justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the Fourth Amendment warrant requirement should not be cast aside for all cases of drunk driving when officers decide to order a blood draw.”
Therefore, when opinions are released, the exigent circumstances exception will probably be modified to say that police will need to attempt to obtain a warrant before taking blood samples from individuals suspected of driving while intoxicated. As is usually the case when the Supreme Court tries to define various exceptions to the constitution, there will still be room for vagaries; however, at least for the time being, you can rest assured that your blood can’t be taken from you… at least, not without a warrant.