SHOULD OHIO POLICE BE ABLE TO DRAW BLOOD AGAINST YOUR WILL?

January 25, 2013

Trooper Mark Winder stopped Tyler McNeely for speeding and observed the usual trilogy of intoxication signs: odor of alcohol, bloodshot eyes, and slurred speech. Winder gave McNeely field sobriety tests and arrested him for driving while intoxicated. The trooper drove McNeely to a hospital and asked McNeely to give a blood sample. McNeely declined. Without obtaining or even seeking a warrant, the trooper had a lab technician take a blood sample from McNeely while McNeely was restrained. The blood sample was later analyzed, and it was determined that the concentration of alcohol in the blood was .154.

The trial court suppressed the results of the blood test, and the case made its way through the Missouri Court of Appeals and the Missouri Supreme Court to the United States Supreme Court. The question before the Supreme Court is: whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The McNeely oral argument was held earlier this month and can be heard here.

1336409_syringe.jpg The prosecution in McNeely argues that involuntary warrantless blood tests are necessary to effectively enforce D.U.I. laws. The prosecution points out that alcohol in a suspect's blood dissipates with time, so the blood alcohol evidence is destroyed if time is taken to obtain a warrant. Due to those "exigent circumstances", the prosecution states, officers should be permitted to draw blood without a warrant.


The defense in McNeely argues that warrantless blood tests are not necessary and are a significant intrusion on a person's expectation of privacy. The defense points out that obtaining a warrant can be done quickly, so the dissipating blood alcohol evidence does not constitute "exigent circumstances". Without those exigent circumstances, drawing blood without a warrant is unreasonable.

In Ohio D.U.I./O.V.I. cases, officers are authorized by statute to take blood involuntarily under certain circumstances. Ohio Revised Code section 4511.191 says that, if the suspect has two prior O.V.I. convictions in the last six years or a prior felony O.V.I. conviction, the officer may "employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma". Missouri law has a similar provision. Both states also have laws that provide for immediate administrative license suspensions for people who refuse to submit to blood or breath tests.

The impact of the McNeely decision could be huge. If the Court holds that exigent circumstances justify warrantless blood tests in all D.U.I. cases, every person arrested for D.U.I. could be subjected to forceful blood draws, even on a first offense. While it is impossible to predict with certainty how the Court will rule, it seems very unlikely the Court will carve-out a general exception to the search warrant requirement for blood tests in D.U.I. cases. It seems more likely the court will use a 'totality of the circumstances' approach on a case-by case basis.