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Is a search warrant required for a blood test?

The recent US v. McNeely US Supreme Court case (133 S.Ct 1552, 2013) should be considered by every DUI defendant where a blood test was taken.  Mr. McNeely was stopped for a "routine" traffic violation and was eventually arrested following a DUI investigation.  When McNeely refused to submit to and complete chemical testing, the arresting officer told the nurse to withdraw blood sample from McNeely without his consent.  The blood sample was withdrawn and McNeely complained in court that a warrant should have been obtained to authorize the seizure of his blood in line with his rights under the 4th Amendment to the US Constitution.  And, because there was no warrant, the evidence showing his .15 BAC level should be suppressed.

In the Supreme Court, the prosecutors argued that no warrant authorizing blood withdrawal should ever be required in a DUI case since the delay necessary to obtain a warrant would mean that evidence of intoxication would be lost due to the natural elimination of alcohol from the body.  The Supreme Court did not accept this argument holding 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."

The Supreme Court therefore upheld the suppression of McNeely's blood test since there was no showing that there was any "exigency" -- meaning any emergency or urgency over and above what is involved in the typical DUI case.  Where there are other "non routine" factors (e.g. an accident investigation or injuries), there is a greater liklihood that no warrant be required. 

Practically, this case tells us that suppression motions (PC sec. 1538.5 in California) should be brought in routine DUI blood test cases where search warrants have not been sought by the police.  This case also suggests that police officers will be much more "persuasive" than previously with DUI arrestees to convince them to choose breath testing instead of blood.  Officers will want to avoid the work of obtaining a warrant whenever possible.  The courts have recognized a distinctly elevated degree of body invasion between the two types of chemical testing and accord a blood test with much more legal protection. 

It may also be to an arrestee's benefit (in a routine case) to choose the blood test option based on McNeely.

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MICHAEL SHULTZ


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