Exigent Circumstances for Warrantless OUI Blood Draws Not Automatic.
In Missouri v. McNeely, 569 U.S. __ (April 17, 2013), the United States Supreme Court rejected the State of Missouri’s argument that blood samples may always be drawn, in routine drunk driving cases, over a suspects objection and without the need for a search warrant, as long as probable cause exists to believe the person has driven under the influence. The Court’s precise holding was as follows: “We hold that 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.” Missouri v. McNeely, Slip opinion at 23.
As a general proposition, Supreme Court case law holds that a search warrant is required for the search of a person to be reasonable” under the 4th Amendment to the U.S. Constitution. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court declared specifically that a search warrant is ordinarily required for the non-consensual taking of a person’s blood sample, given the level of intrusion involved in piercing a person’s veins to obtain evidence against him. But like any search or seizure that ordinarily requires a search warrant, the taking of a blood sample in a given circumstance might be justified by one of the recognized exceptions to the search warrant requirement. One such exception is the “exigent circumstances” exception. The idea is that a warrantless search might be reasonable if the time it would take to obtain a search warrant would likely result in the disappearance or destruction of evidence. In Schmerber, the Supreme Court found that a warrantless blood draw from an OUI suspect was reasonable because the defendant had been injured in a car crash and had been taken to a hospital before the officer caught up to him. In these circumstances, the Court found that the officer (who had hospital personnel perform the blood draw for him) might reasonably have believed he was confronted with an emergency, in the sense that valuable blood alcohol evidence would have been destroyed in the additional time it would have taken to obtain a search warrant. The Schmerber Court pointed out that the percentage of alcohol in a person’s blood always starts dropping shortly after the person stops drinking.
In Missouri v. McNeely, police and prosecutors in Missouri, leaping from Schmerber, took the position that the natural bodily process of metabolizing alcohol creates an exigent circumstance, built into all drunk driving cases, that justifies a warrantless search anytime there is probable cause to believe the crime has been committed. The Supreme Court rejected this argument, instead holding that the question whether exigent circumstances justify a warrantless search in a given OUI case requires an examination of the particular circumstances of that particular case. In some cases, it may be true that exigencies justify a warrantless blood draw, but in other cases a warrant might be obtained relatively quickly and it would then be unreasonable to conduct a warrantless search to obtain a blood sample. What I find interesting in McNeely is the emphasis placed on the conditions under which McNeely’s blood sample was taken. As with the sample take from Schmerber, McNeeley’s blood sample was taken at a hospital, by medical personnel. Where and how a blood sample is obtained is important, because of the overriding 4th Amendment requirement that a search be “reasonable.” The way in which a search is carried out is a factor in the reasonableness analysis. In Schmerber, the Supreme Court pointed out the importance that it placed on the circumstances under which Schmerber’s blood was taken, in the following passage:
“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse.” Schmerber v. California, 384 U.S. 757, 771-772 (1966).
In his concurrence in Missouri v. McNeely, Chief Justice Roberts argued that the Court’s majority opinion should have provided guidance for police as to circumstances that were likely to justify a warrantless blood draw based on exigent circumstances. At the risk that I might be leaving out some of the nuance, he essentially suggested that police must seek a search warrant anytime doing so would not appreciably delay the acquisition of a blood sample, and he suggested that there is always some delay involved in securing a blood sample because such samples are ordinarily taken at a hospital or other medical facility. In this connection, Justice Roberts quoted the passage from Schmerber quoted above, and had this to say about it:
“A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns [emphasis added].” Missouri v. McNeely, Slip opinion (concurrence) p. 7, n. 2.
On this point, the majority in McNeeley answered Roberts, suggesting that roadside blood draws by police officers are in fact problematic and should not be encouraged, while pointing out that Roberts’ suggested approach would make roadside blood draws more attractive to police, given that this process will almost always result in a blood sample being acquired much sooner than a process that involves applying for a search warrant. McNeely, 596 U.S. __, Slip opinion at p.p. 15-16. Why do I find these discussions of blood draws performed by medical personnel at a hospital vs. those performed by police officers at the roadside or police station interesting? Because more and more these days, OUI blood draws in Maine are performed by police officers at police stations. In fact, in other states it has become quite common for blood draws to be done by police officers at the roadside. Maine law states that a person is qualified to draw a blood sample to determine a defendant’s alcohol level or drug concentration if that person’s “training allows that person to draw blood samples.” 29-A M.R.S. §2524(1). You might ask the question: A person whose training allows that person to draw blood samples according to whom? Without an answer to that question, this is a pretty empty qualification. And yet, although the DHHS, Health and Environmental Testing Laboratory used to certify people as qualified to draw a blood sample for alcohol and drug analyses, they stopped doing so under the theory that all they were doing was certifying those who were already qualified by occupational license or training anyway. So now we have a circular, empty qualification standard that is void of any substance or meaning, but I digress, because my main point is that police officers often become licensed as EMT’s at a level of training that qualifies them, under EMT rules, to draw blood samples. And when someone comes into the police station in an OUI case in which a blood sample is to be taken, quite often these days it’s one of those EMT-trained police officers who takes the person’s blood sample. That’s exactly the sort of thing the Schmerber and McNeeley Courts suggested might raise serious 4th Amendment concerns– police officers taking blood samples at the station house. So maybe this practice isn’t so legitimate after all, because it appears there are people in black robes (at the national level anyway) who perceive that the creepiness index is markedly increased when a cop sticks a needle in your arm at the police station, instead of a phlebotomist, nurse or doctor in a more medically-themed environment.