Do police need to get a warrant before they draw blood in a DUI case?

What if police ask for consent for a blood test and you say no? Can they hold you down and forcibly puncture your arm with a needle to take your blood?

Over 50 years ago, the US Supreme Court said in Schmerber v. California that the natural dissipation of alcohol in the system creates an “exigent circumstance” (emergency) that justifies an exception to the Fourth Amendment’s warrant requirement. If there’s a car wreck and a suspected DUI, police don’t have to get a warrant before drawing your blood, even if you refuse.

In 2012, the US Supreme Court said in Missouri v. McNeely that times have changed since Schmerber. Advances in technology and the available procedures for obtaining warrants since Schmerber now allow law enforcement to apply for and receive a search warrant without excessive delay, and one officer can get the warrant while another officer or officers conduct the accident investigation and transport the suspect to the hospital for a blood draw.

This week, the SC Supreme Court, ignoring Missouri v. McNeely, said, in State v. McCall, that, in South Carolina, the dissipation of alcohol justifies an exception to the warrant requirement when there is an accident, and police do not need to even attempt to seek a search warrant…

Schmerber: No Warrant Needed to Draw Blood in a DUI Case

In Schmerber v. California, decided in 1966, the US Supreme Court held that the dissipation of alcohol in the bloodstream creates an exigent circumstance that justifies a forcible blood draw over a DUI suspect’s refusal to consent:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” Preston v. United States, 376 U. S. 364, 376 U. S. 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood alcohol content in this case was an appropriate incident to petitioner’s arrest.

The defendant in Schmerber was in an automobile accident. The responding officer believed he was intoxicated and so transported him to the hospital where a doctor took a blood sample over his objections.

In 1966, it made sense because it would have been very difficult, if not impossible, for the officer to find a magistrate and get a search warrant signed within a reasonable time – if he was going to force a blood draw, it needed to happen without a magistrate’s pre-approval.

1) It took time to transport the defendant to the hospital, 2) it took time to investigate the accident, and, therefore, 3) there was no time to find a magistrate and get a warrant before the alcohol dissipated.

Does that still make sense today?

McNeely: A Warrant is Needed to Draw Blood in a DUI Case

In Missouri v. McNeely, in 2012, the US Supreme Court revisited the issue and squarely rejected the government’s request to create a “per se” rule that the dissipation of alcohol creates an exigent circumstance that justifies a warrantless blood draw.

Why?

1) The defendant is going to be transported to the hospital whether or not the officer gets a search warrant.

Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.

2) A DUI arrest, and especially a felony DUI case where there were an accident and injuries, doesn’t involve just one officer. While one or more officers are investigating the accident scene, another can transport the defendant to the hospital, and another officer can get the search warrant without delay.

Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.

3) Schmerber was decided over 50 years ago – procedures are in place now that allow officers to seek a warrant by telephone and computer, and, in most cases, excessive delay in obtaining a warrant is just not a thing anymore

The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk driving investigations.

Schmerber authorized warrantless blood draws in any case where there is an accident and a suspected DUI. McNeely overruled Schmerber to the extent that it limited warrantless blood draws to cases where an officer legitimately cannot obtain a warrant within a reasonable time. If there are procedures in place for the officer to obtain a warrant and the officer does not attempt to get a warrant or to send another officer to get the warrant, it is a Fourth Amendment violation.

McCall: SC Doesn’t Care What the US Supreme Court Said in McNeely. We Like Schmerber Better…

In State v. McCall, decided this week, the SC Supreme Court held that an officer does not even need to attempt to get a warrant in a felony DUI case.

There was an accident and the officers suspected DUI. In McCall, there were procedures in place for the officer to get a warrant. The officer testified it would take about 90 minutes for him to get the warrant after 5 pm. It took the officer two hours to get to the hospital for the blood draw (120-90 = 30 minutes to spare).

There were at least ten officers at the crime scene. None of them made any attempt to get a search warrant.

Relying on Schmerber and ignoring the language in McNeely that in effect overturned Schmerber, at least to the extent that it held no warrant is needed when there is an accident and a suspected DUI, the SC Supreme Court held that, if there is a serious accident, the dissipation of alcohol (or drugs) in the system creates exigent circumstances that justify a warrantless blood draw.

The SC Supreme Court has decided to follow the US Supreme Court’s guidance in Schmerber, rolling us back to 1966, while ignoring the US Supreme Court’s 2012 decision in McNeely…

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