In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.
In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: “The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.”
The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect’s bodily integrity that implicates the most personal expectations of privacy. A warrantless search of a person’s body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is ‘exigent circumstances’, times when “there is a compelling need for official action and no time to secure a warrant”. One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates ‘exigent circumstances’.
Whether circumstances are exigent and justify a warrantless search is determined by the totality of the circumstances on a case-by-case basis. In the previous case of Schmerber v. California, the Court held that there were exigent circumstances to justify the warrantless blood draw. In that case, the Court concluded that the officer “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.'” In that case, the police spent time investigating the accident scene and transporting the suspect to the hospital, so there was not time to secure a warrant.
In McNeely, the prosecution was seeking a bright line rule that warrantless blood draws are always permissible in drunk driving cases. The Court declined to create that bright line rule and instead held: “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” The Court maintained the ‘totality of the circumstances’ approach and concluded the circumstances of the McNeely case did not justify the warrantless blood draw. The Court, stated, however, “some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test”. Justice Thomas, in dissent, said he would use the bright-line rule, and Chief Justice Roberts (dissent, joined by Justices Alito and Breyer) would modify the bright-line rule so an officer must seek a warrant unless the officer could reasonably conclude there is not time to do obtain a warrant.
The holding in McNeely will likely impact O.V.I. cases in Ohio. Ohio Revised Code section 4511.191 permits officers to use “whatever reasonable means are necessary” to ensure that a repeat offender gives a blood sample. The statute has been interpreted to mean officers may obtain involuntary blood samples without a search warrant. If an officer does so now, there is a significant risk that the blood test will be thrown out due to the McNeely decision. In addition, officers warn repeat offenders that the officers are permitted to use “whatever reasonable means are necessary” to get a blood sample. If a suspect then consents to a blood test, the blood test may be thrown out because the consent was coerced rather than given voluntarily. Officers’ continued reliance on the statute for repeat offenders may also lead to those suspects successfully appealing their Administrative License Suspensions. It will be interesting to see how the McNeely holding plays out in Ohio O.V.I. cases.