Warrantless Blood Draws and the Fourth Amendment (Again)

A recent en banc decision from the Supreme Court of Missouri adds to the growing divide among state appellate courts regarding whether the exigency created by the dissipation of blood-alcohol levels is sufficient, by itself, to render a nonconsensual, warrantless blood draw from a person arrested for impaired driving a reasonable search and seizure under the Fourth Amendment.  The Missouri high court in State v. McNeely, 2012 WL 135417, __ S.W.3d. __  (January 17, 2012), rejected the State’s argument, premised on Schmerber v. California, 384 U.S. 757 (1966), that the natural dissipation of blood-alcohol evidence is alone a sufficient exigency to dispense with the Fourth Amendment’s warrant requirement.  McNeely viewed Schmerber as requiring special facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception.  In Schmerber , those additional facts included the time delay created by the investigation of the accident and the transportation of the defendant to the hospital. The defendant in McNeely was stopped for speeding.  When the officer noticed signs of intoxication, the routine traffic stop transformed into a DWI investigation.  After the defendant performed poorly on field sobriety tests, he was arrested.  Once the defendant was secured in the patrol car, the officer asked him if he would submit to a breath test.  The defendant refused.  The officer then drove directly to the hospital to obtain a sample of defendant’s blood for analysis.  The defendant refused to voluntarily provide a sample.  Nevertheless, twenty-five minutes after the defendant [...]