US Supreme Court to Decide in McNeely if DWI Blood Draws Require a Warrant

Every state in the union has laws prohibiting drunk driving. In association with driving while impaired statutes, states generally have implied consent laws in place which mandate that drivers who fail a DWI test, or refuse a test, automatically lose their driver’s license before they have even been convicted, subject to the right to appeal the DL Revocation by filing an Implied Consent Petition. Individual states may differ on some elements of what may constitute DWI and the scope of what type and the procedures involved in alcohol testing under implied consent laws may also differ. In Minnesota, the implied consent law allows officers to request a breath, blood or urine test as evidence for a DWI charge.

States differ significantly on whether a blood draw is an unreasonable intrusion in the absence of a warrant. Minnesota’s implied consent law essentially avoids the warrant requirement in blood draw cases. But Minnesota also gives drivers the “opportunity” to refuse a blood test or other DWI test (Datamaster breath test or a urine test) and thereby get the “privilege” of being charged with a Gross Misdemeanor crime of Test Refusal, which *may* be a worse crime than would they would have been charged with had they taken and failed the DWI test.

The law “implies” or assumes consent when a person chooses to drive. Minnesota law places certain procedures in place that must be followed, including requirements on who may draw blood in a DWI investigation, that a driver is given a proper implied consent advisory (and many other requirements) that DWI defense attorneys generally scrutinize carefully. But law enforcement can generally proceed with an implied consent blood draw without a warrant under current Minnesota law.

The United States Supreme Court has agreed to hear argument in a Missouri case called McNeely on whether a warrantless forced blood draw in a “routine” (meaning no accident or injuries) drunk driving case violates the Fourth Amendment protection against unreasonable searches and seizures. The case that has reached the nation’s highest court did not arise in Minnesota, but the constitutional issue is of national concern.

The issue involves a question about a legal concept known as “exigent circumstances.” “Special facts” may also be involved based upon prior U.S. Supreme Court precedent. The issue of exigency has often arisen in various aspects of Minnesota DWI court decisions, due to the dissipation of alcohol in the bloodstream. Courts across the country have split on whether the dissipation of alcohol in the blood creates sufficient urgency to justify a forced blood draw without a warrant.

But a Missouri high court ruling found that no special facts or exigent circumstances justified a DWI blood draw. That ruling will be heard in the U.S. Supreme Court during the next term. Prosecutors claim that the state court ruling misinterpreted a 1966 U.S. Supreme Court (Schmerber v. Calif. ruling regarding a blood draw after a car accident.

That high court ruling found “special facts” in the case to constitutionally justify the search. The U.S. Supreme Court agreed to revisit the blood draw question for the first time since 1966 in what may be a more routine DWI case in which the blood draw was taken roughly 25 minutes after the driver was pulled over, and no accident or injuries were involved.

Source: Reuters, “REFILE-WRAPUP 1-US Supreme Court to address blood testing for drunk driving,” Terry Baynes and Jonathan Stempel, Sep. 26, 2012

He has won jury trial cases in misdemeanor and felony cases and in DWI’s and non-DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. He is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

What to Do If You Have Been Charged with a Criminal Offense

People facing criminal charges in Minnesota often ask, “Can you defend yourself in court?” You can represent yourself in court when charged with a crime. Self-representation, however, is not typically in the accused's best interests, even if courts allow it.
Parents whose children have been arrested or accused of committing a heinous crime might wonder, “Can a minor be charged with a felony?” A minor aged 14 years or older but below 18 years may face felony charges in Minnesota.
People accused of or under investigation for assault might ask, “What are the charges for assault?” Minnesota has five levels of assault charges. First-degree assault is the most serious offense, and a conviction often results in the most severe penalties, like long prison time and hefty fines.