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Evolution of Search and Seizure Law: Blood Draws in DUI (Part 1)

search and seizure - blood drawsAny warrantless search or seizure is presumed unlawful aside from a few jealously guarded exceptions. Traditional exceptions include but are not limited to (1) consent; (2) incident to arrest; (3) hot pursuit; and (4) exigent circumstances.

Exigent circumstances concern situations where there is an emergency where obtaining a warrant is impossible or impracticable. Exigent circumstances may exist where there is a risk of immediate destruction of evidence or imminent danger of substantial injury where police must act quickly and have no time to get a warrant.

One classic example of exigent circumstances is where the police know that a person is about to flush drugs down the toilet–obtaining a warrant is unrealistic and police must react quickly to prevent the destruction of evidence.

For decades courts in Washington believed that the natural dissipation of alcohol or drugs in the human body constituted an exigent circumstance that permitted law enforcement to subject individuals to nonconsensual warrantless blood draws in the DUI context. This belief was incorrect. Unfortunately a major flaw in legal reasoning became embedded into Washington state case law for decades.

Schmerber v. California–1966

It all began with the Schmerber v. California opinion issued in 1966. In Schmerber, the United States Supreme Court held a nonconsensual warrantless blood draw did not violate a defendant’s Fifth Amendment rights because he was not compelled to give testimonial or communicative evidence. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826 (1966). The court also held there had been no violation of the petitioner’s Fourth Amendment right to be free from unreasonable searches and seizures. Schmerber, 384 U.S. at 772. The court reasoned:

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,’. 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 the petitioner’s arrest.

Id. at 770-771 (citations omitted). The language in the block quote above was viewed differently by courts across the nation.

Split Authorities and Washington Case Law

Schmerber caused a split of authority. Lower courts differed on the question of whether Schmerber held the natural dissipation of alcohol in the bloodstream alone establishes an exigency that suffices to justify an exception to the warrant requirement for blood testing in DUI investigations. Missouri v. McNeely, — U.S. –, 133 S.Ct. 1552, 1558 (2013).

Some courts believed Schmerber meant the state could force nonconsensual warrantless blood testing incident to all DUI arrests. See, e.g., Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449-1450 (9th Cir. 1986) (claiming Schmerber rejected warrant requirement and permits search incident to arrest); State v. Machuca, 347 Or. 644, 657, 227 P.3d 729 (Or. 2010) (evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw); State v. Shriner, 751 N.W.2d 538, 545 (Minn. 2008) (holding dissipation of alcohol in defendant’s blood creates single-factor exigent circumstances justifying warrantless nonconsensual blood draw); State v. Bohling, 173 Wis.2d 529, 533, 494 N.W.2d 399 (Wis. 1993) (same); State v. Woolery, 116 Idaho 368, 370-371, 775 P.2d 1210 (Idaho 1989) (same). Washington case law is permeated with this view of Schmerber. See, e.g., City of Seattle v. Stalsbroten, 138 Wash.2d 227, 235-236, 978 P.2d 1059 (1999) (“[T]here is no constitutional right not to take the blood test. According to the Court, blood alcohol tests are so “safe, painless, and commonplace,” that the State could legitimately require suspects to take the test. [citing South Dakota v. Neville and Schmerber]. Given that the State could require suspects to take the test, the State can also legitimately offer suspects the option of refusing the test, with attendant penalties.”); State v. Bostrom, 127 Wash.2d 580, 590, 902 P.2d 157 (1995) (“Both the United States Supreme Court and this court have held that the State can constitutionally force a defendant to submit to a blood alcohol or breathalyzer test. [citing Schmerber and State v. Moore, infra]”); State v. Judge, 100 Wash.2d 706, 711-712, 675 P.2d 219, 222-223 (1984) (“Furthermore, the Schmerber court rejected defendant’s contention that a warrant must be obtained before blood samples may be taken.”); State v. Zwicker, 105 Wash.2d 228, 239 n.2, 713 P.2d 1101 (1986) (In Schmerber the Court held that withdrawal of blood to determine blood alcohol content and its admission in evidence did not abridge the federal constitutional guaranties of…the right to be free from unreasonable searches and seizures.”); State v. Wetherell, 82 Wash.2d 865, 869-870, 514 P.2d 1069 (1973) (“[Schmerber] held that the extraction of the blood sample from the defendant was tantamount to a search for and seizure of real or physical evidence which was governed by the fourth amendment to the United States Constitution. The warrantless nature of the designated search was justified upon the grounds that it was incident to a lawful arrest coupled with a reasonable emergency I.e., the progressive diminution of the blood-alcohol level during the time interval incident to obtaining a search warrant.”); State v. Baldwin, 109 Wash.App. 516, 523, 37 P.3d 1220 (Wash. Ct. App. 2001) (“Schmerber held that a blood test can be taken without consent to determine alcohol intoxication because the delay necessary to obtain a warrant threatens the destruction of the evidence. Alcohol dissipates quickly after drinking stops, and there may be little time to seek out a magistrate and secure a warrant.” (internal citations omitted)); Baldwin, 109 Wash.App. at 525 (“Without knowing what drugs have been ingested or how long a particular drug stays in the system of a particular person, the arresting officer faces an emergency situation when the facts and circumstances indicate that a suspect has been driving under the influence of drugs or drugs and alcohol.”).

Other courts read Schmerber as requiring “special facts” beyond mere natural dissipation of alcohol for an exigency to exist to justify a nonconsensual warrantless blood draw. See, e.g., State v. McNeely, 358 S.W. 65 (Mo. banc 2012); United States v. Chapel, 55 F.3d 1415, 1419 (9th Cir. 1995) (holding arrest is not a constitutional prerequisite, but officer must (1) have probable cause to believe suspect committed offense, (2) must reasonably believe an emergency exists in which delay necessary to obtain warrant would threaten loss of destruction of evidence, and (3) procedure to extract sample must be reasonable); State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008) (officer reasonably believed he was confronted with emergency situation in which the delay necessary to obtain search warrant threatened destruction of evidence of intoxication under circumstances where driver caused an accident resulting in serious injuries, left scene of accident on foot, was later located several blocks away, failed field sobriety tests, was arrested, refused breath test, was transported to hospital where he had his blood drawn more than two and one-half hours after the accident); State v. Rodriquez, 156 P.3d 771, 772-773 (Utah 2007); id. at 780-781 (Under totality of circumstances analysis, probable cause and exigent circumstances justified warrantless blood draw from defendant who driver in automobile collision; vodka bottle was found at the scene, officer noted defendant’s slurred speech, bloodshot eyes, and odor of alcohol when he encountered her at the hospital, and the collision was of a serious nature, as driver’s passenger was expected so succumb to her injuries); see also United States v. Berry, 866 F.2d 887, 891 (8th Cir. 1989) (reading Schmerber as an application of the exigent circumstances to the warrant requirement although “Schmerber cast its decision in terms of a ‘search incident to arrest’ exception to the warrant requirement.”).

In short, some jurisdictions adopted the view that the mere natural dissipation of alcohol or drugs in the human body alone presents a sufficient exigent circumstance which permits a lawful nonconsensual warrantless blood draw incident to arrest in all DUI type cases. Others jurisdictions adopted the view that the Fourth Amendment holding in Schmerber was fact specific–i.e. there was an emergency in Schmerber that presented an exigent circumstances under the particular facts of the case which made it impracticable for the officer to obtain a warrant under the circumstances and therefore the nonconsensual warrantless blood draw was legal. This split in authorities was not resolved until 2013.

Missouri v. McNeely Resolves The Split Of Authorities–2013

In McNeely, Tyler McNeely was stopped for speeding and repeatedly crossing the centerline. McNeely, 133 S.Ct. at 1556. McNeely was arrested after performing poorly on SFSTs and declining a portable breath test. Id. at 1556-1557. McNeely then told the officer he would refuse to provide a breath sample at the station. The officer did not attempt to secure a warrant. The officer drove McNeely to a hospital:

Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample…. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent….

McNeely, 133 S.Ct. at 1557 (citations omitted). The United States Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing. Id. at 1556. The court affirmed suppression of McNeely’s blood draw results. Id. at 1558. The United States Supreme Court clarified that “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561. The United States Supreme Court also rejected assumptions that have been embedded in Washington case law for decades:

Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.

Id. at 1568; compare Stalsbroten, 138 Wash.2d at 235-236; Bostrom, 127 Wash.2d at 590; Judge, 100 Wash.2d at 711-712; Zwicker, 105 Wash.2d at 239; Wetherell, 82 Wash.2d at 869-870; Baldwin, 109 Wash.App. at 523; id. at 525; et al. The United States Supreme Court reaffirmed the warrant requirement:

Noting [in Schmerber] that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. We explained that the importance of requiring authorization by a ” ‘neutral and detached magistrate’ ” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.”

Id. at 1558. The United States Supreme Court also clarified the proper reading of Schmerber. See id. at 1559-1560. It explained the Fourth Amendment holding in Schmerber was indeed fact specific and narrow. Id. at 1559-1560.

Today, in light of McNeely, we know that a fairly significant line of Washington jurisprudence is bad law. McNeely has also led to recent and significant evolution in search and seizure law concerning blood draws in the DUI context. For example, we have seen this evolution most recently in the July 21, 2014 Division One Court of Appeals case State v. Martinez. There, Division One held that the state may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes the testing and specifies the types of evidence for which the sample may be tested. State v. Martinez has had a major impact on DUI type cases in Washington in recent months including those handled by our office. State v. Martinez will be discussed further in later blogs.

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