Justia.com Opinion Summary: Defendant Tyler McNeely refused to consent to an alcohol breath test or a blood test after he was arrested for driving while intoxicated. The arresting patrolman, without seeking a warrant from a judge, ordered a medical professional to draw Defendant's blood. The trial court sustained Defendant's motion to suppress the results of the blood test, concluding that the nonconsensual and warrantless blood draw was a violation of Defendant's Fourth Amendment rights. The Supreme Court affirmed, holding (1) the fact that blood-alcohol levels dissipate after drinking ceases is not a per se exigency pursuant to Schmerber v. California justifying an officer to order a blood test without obtaining a warrant from a neutral judge; and (2) the arresting patrolman, therefore, was not justified in failing to seek a warrant before drawing Defendant's blood over his refusal to consent.
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SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI
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Appellant,
vs.
TYLER G. MCNEELY
Respondent.
No. SC91850
APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY
The Honorable Benjamin F. Lewis, Judge
Opinion issued January 17, 2012
PER CURIAM
Tyler McNeely (Defendant) refused to consent to an alcohol breath test or a blood
test after he was arrested for driving while intoxicated. The arresting patrolman, without
seeking a warrant from a judge, ordered a medical professional to draw Defendant’s
blood. The trial court sustained Defendant’s motion to suppress the results of the blood
test as the nonconsensual and warrantless blood draw was a violation of his Fourth
Amendment rights.
1
The issue before the Court in this interlocutory appeal is: Under what “special
facts” is a nonconsensual and warrantless blood draw in a DWI case a reasonable search
and seizure under the Fourth Amendment?
This Court recognizes the two competing interests involved in answering that
question, namely, society’s interest in preventing the harms caused by drunken driving
and an individual’s Fourth Amendment right to be secure in his or her person and to be
free of unreasonable searches and seizures.
The United States Supreme Court addressed this issue in the landmark case of
Schmerber v. California, 384 U.S. 757 (1966). There, the Supreme Court provided a
limited exception to the warrant requirement for the taking of a blood sample in alcoholrelated arrests. Id. at 772. The holding, which was expressly limited to the facts of that
case, ultimately rested on certain “special facts” that might have led the officer to
reasonably believe he was faced with an emergency situation in which the delay in
obtaining a warrant would threaten the destruction of evidence. Id. at 770-71. The threat
of evidence destruction was caused by the fact that the percentage of alcohol in a
person’s blood begins to diminish shortly after drinking stops and because time had to be
taken both to investigate the accident scene and transport the defendant to the hospital. Id.
These events left no time for the officer to seek out a judge to secure a search warrant. Id.
Schmerber held that these “special facts” permitted a warrantless blood draw. Id. at 771.
The patrolman here, however, was not faced with the “special facts” of
Schmerber. Because there was no accident to investigate and there was no need to
arrange for the medical treatment of any occupants, there was no delay that would
1
threaten the destruction of evidence before a warrant could be obtained. Additionally,
there was no evidence here that the patrolman would have been unable to obtain a
warrant had he attempted to do so. The sole special fact present in this case, that bloodalcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to
Schmerber justifying an officer to order a blood test without obtaining a warrant from a
neutral judge.
The judgment of the trial court is affirmed. 1
I. Facts
A Missouri state highway patrolman, while performing his patrol, stopped
Defendant’s truck for speeding at 2:08 a.m. As the patrolman spoke with Defendant
during the routine traffic stop, he noticed that Defendant displayed the tell-tale signs of
intoxication—bloodshot eyes, slurred speech, and the smell of alcohol on his breath.
These observations changed the nature of the patrolman’s investigation from a routine
traffic stop to a DWI investigation. He asked Defendant to step out of the vehicle and to
perform standard field-sobriety tests. Defendant performed the tests poorly, and the
patrolman placed Defendant under arrest for driving while intoxicated. After securing
Defendant in the patrol car, the patrolman asked him if he would consent to a breath test.
Defendant refused.
1
Affirming the trial court’s decision granting the motion to suppress does not result in the
dismissal of the case against Defendant. Instead, the state may proceed in the prosecution of the
DWI charge against Defendant based on other evidence not gathered in violation of the
Constitution.
2
The patrolman testified that, in his more than 17 years of experience, he had
obtained warrants when he needed to test the blood of DWI suspects. This time,
however, he was influenced by an article he previously had read, written by a traffic
safety resource prosecutor, in “Traffic Safety News.” He testified that the article asserted
officers no longer needed to obtain a warrant before requiring DWI suspects to submit to
nonconsensual blood tests because of recent changes in Missouri’s implied consent law. 2
Based on this understanding, the patrolman did not seek a warrant and drove Defendant
to the local hospital to test his blood to secure evidence of his intoxication. There,
Defendant refused to consent to a blood draw. Over Defendant’s refusal, the patrolman
directed a phlebotomist to draw Defendant’s blood for alcohol testing at 2:33 a.m. The
blood sample was analyzed, and the results revealed that Defendant’s blood-alcohol
content was well above the legal limit.
Defendant moved to suppress the results of the blood test as a violation of his
Fourth Amendment rights. The trial court sustained the motion. The State brings this
interlocutory appeal. 3
2
The article, Warrantless Blood Draws: Are They Now Authorized in Missouri?, acknowledged
that the former version of section 577.041.1 stated that if a person refused both the breathanalyzer and the blood draw test, then “none shall be given.” Section 577.041.1, RSMo Supp.
2008. However, that section was amended prior to Defendant’s arrest by the deletion of the
phrase “and none shall be given.” Section 577.041.1, RSMo. Supp. 2010. With the removal of
that phrase, the prosecutor asserted that police officers now may “rely on the well settled
principle that obtaining blood from an arrestee on probable cause without a warrant and without
actual consent does not offend constitutional guarantees.” The prosecutor’s assertion rests on a
fundamental misreading of Schmerber.
3
This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution.
3
II. Standard of Review
A trial court’s ruling on a motion to suppress will be reversed only if it is clearly
erroneous. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). This Court defers to the
trial court’s factual findings and credibility determinations and considers all evidence and
reasonable inferences in the light most favorable to the trial court’s ruling. Id. Whether
conduct violates the Fourth Amendment is a question of law, which is reviewed de novo.
Id.
III. Analysis
The issue before this Court is whether the natural dissipation of blood-alcohol
evidence is alone a sufficient exigency to dispense with the warrant requirement under
the Fourth Amendment.
The Fourth Amendment to the United States Constitution ensures “[t]he right of
the people to be secure in their person … against unreasonable searches and seizures.”
The United States Supreme Court has repeatedly held that “searches conducted outside
the judicial process, without prior approval by judge or magistrate are per se
unreasonable under the Fourth Amendment—subject to only a few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357
(1967).
An exception to the general rule requiring a search warrant is when exigent
circumstances are present. United States v. Cisneros-Gutirrez, 598 F.3d 997, 1004 (8th
Cir. 2010). Exigent circumstances exist if the time needed to obtain a warrant would
endanger life, allow a suspect to escape, or risk the destruction of evidence. Id.
4
Every Fourth Amendment analysis requires the balancing of two competing
interests: (1) the right of the individual to be secure in his or her person, house, papers,
and effects against unreasonable searches and seizures and (2) society’s interest in
discovering and eliminating criminal activity. Schmerber recognized this essential and
inevitable struggle of the Fourth Amendment:
Search warrants are ordinarily required for searches of dwellings, and
absent an emergency, no less could be required where intrusions into the
human body are concerned. The requirement that a warrant be obtained is a
requirement that the inferences to support the search “be drawn by a neutral
and detached magistrate instead of being judged by the officer engaged in
the often competitive enterprise of ferreting out crime.” The importance of
informed, detached and deliberate determinations of the issue whether or
not to invade another’s body in search of evidence of guilt is indisputable
and great.
384 U.S. at 770 (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948)) (internal
citations omitted).
A. Schmerber v. California
Schmerber provides the backdrop to this Court’s analysis in the case at hand. In
Schmerber, the defendant was driving a vehicle that skidded off the road. Id. at 758 n.2.
He and his passenger were injured and taken to the hospital for treatment. Id. At the
hospital, the defendant was arrested and, without his consent or a warrant, an officer
directed a physician to take a sample of the defendant’s blood. Id. at 758. Analysis of the
blood sample revealed that the defendant was intoxicated. Id. at 759. The defendant
objected to the trial court’s receipt of the blood sample evidence, contending that the
5
warrantless blood draw violated his Fourth Amendment right to be free from
unreasonable searches and seizures. Id.
The Supreme Court reasoned that drawing an individual’s blood for evidentiary
purposes is a search that implicates the Fourth Amendment. Id. at 769-70. Ordinarily a
search warrant would be required to perform a blood draw when a person does not
consent. Id. at 770. The circumstances in Schmerber, however, led the Supreme Court to
carve out a very limited exception to the warrant requirement for a blood draw in alcoholrelated cases. Id. at 772. The limited exception of Schmerber ultimately rested on certain
“special facts” that might have caused the officer to reasonably believe he was faced with
an emergency situation in which the delay in obtaining a warrant would threaten the
destruction of evidence. Id. at 770-71. The threat of evidence destruction was caused by
the fact that the percentage of alcohol in a person’s blood begins to diminish shortly after
drinking stops and because there was an accident requiring time to be taken to both
transport the defendant to the hospital and to investigate the scene of the accident. Id.
Given those “special facts” the Supreme Court concluded that the warrantless search was
valid incident to the defendant’s arrest. Id. at 771. Although Schmerber couched its
limited exception to the warrant requirement in terms of a search incident to arrest, it has
since been read as an application of the exigent circumstances exception to the warrant
requirement. United States v. Berry, 866 F.2d 887, 891 (6th Cir. 1989).
The State urges that Schmerber gives officers the broad authority to direct medical
professionals to conduct warrantless and nonconsensual blood draws on DWI defendants
on mere probable cause of intoxication. The State asserts that the dissipating nature of
6
blood-alcohol evidence alone constitutes a sufficient exigency to dispense with the
warrant requirement in alcohol-related cases.
Schmerber, however, requires more than the mere fact that alcohol naturally
dissipates in the blood stream. Instead, it requires a showing of “special facts” to provide
an exigency to conduct a warrantless bodily intrusion. Schmerber, 384 U.S. at 770-71.
The “special facts” present in Schmerber included the time delay created by the
investigation of the accident as well as the transportation of the defendant to the hospital.
Id. These “special facts” might have caused the officer to reasonably believe he was
faced with an emergency situation in which the further delay in obtaining a warrant
would threaten the destruction of evidence. Id. Under this limited fact situation,
Schmerber held a nonconsensual, warrantless blood draw was permissible under the
Fourth Amendment. Id. at 772. This interpretation of Schmerber is supported by other
jurisdictions that have addressed this issue.
B. Other Jurisdictions That Have Addressed Schmerber Have Held That “Special Facts”
Beyond the Natural Dissipation of Blood-Alcohol Are Required
Since Schmerber, several courts have addressed whether Schmerber’s holding
allows for nonconsensual, warrantless blood draws in routine DWI cases. The Supreme
Court of Utah held that the dissipating nature of blood-alcohol evidence alone is not a per
se exigency justifying a warrantless search. State v. Rodriguez, 156 P.3d 771, 772 (Utah
2007). In Rodriguez, the defendant was critically injured in a serious automobile
accident and was rushed to the hospital. Id. An officer went to the hospital where the
defendant was being treated and observed the odor of alcohol on her breath, slurred
7
speech, red eyes, and belligerent behavior. Id. Blood was drawn from the defendant
through an IV line that the hospital staff had previously inserted in her arm. Id. The
analysis of her blood revealed that her blood-alcohol level was five times the legal limit
in Utah. Id. At trial, the defendant moved to suppress the evidence obtained from the
warrantless blood draw. Id.
Rodriguez, in analyzing Schmerber, stated: “The evanescence of blood-alcohol
was never special enough to create an exigent circumstance by itself.” Id. at 776. Instead,
the Utah court reasoned, Schmerber’s exigent circumstances exception to the warrant
requirement rested on all of the “special facts” of Schmerber, and the natural dissipation
of blood-alcohol was only one of those “special facts.” Id. Rodriguez adopted a totality
of the circumstances test for the determination of whether there exists a sufficient
exigency justifying a warrantless blood draw. Id. at 782. Rodriguez reasoned that the
seriousness of the accident in the case, coupled with the compelling evidence of the
defendant’s alcohol impairment, was “sufficient to establish that the interests of law
enforcement outweighed, in this instance, [the defendant’s] privacy interests.” Id. at 781.
The Supreme Court of Utah held that, given the totality of the circumstances, probable
cause and exigent circumstances justified a warrantless blood draw in the case before it.
Id. at 782.
Similarly, the Supreme Court of Iowa noted that Schmerber rejected the notion
that the natural dissipation of blood-alcohol constituted a per se exigency justifying a
warrantless blood draw. State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008). In
Johnson, the defendant was involved in a car accident that caused serious injury to the
8
driver of another car. Id. at 341. After the accident, the defendant fled the scene on foot,
but the police tracked him down not far from the scene. Id. He was arrested and taken to
the police station, where he refused a breath test. Id. Subsequently, he was taken to the
hospital, and a blood sample was drawn without a warrant and without his consent. Id.
Analysis of his blood revealed that his blood-alcohol concentration was well above the
legal limit in Iowa. Id. The defendant moved to suppress the results of the blood test. Id.
Johnson analyzed the admissibility of a warrantless blood draw performed in
accordance with an Iowa statute authorizing such draws. Id. 4 The defendant argued that
the officer was not faced with an “emergency” under the Iowa statue. Id. The Iowa court
found that there were Schmerber-like time-based considerations present in the case
before it because the officer had to take time to investigate the scene, track down the
fleeing defendant, administer sobriety tests, and transport him to the police station and
hospital. Id. at 344. Two and a half hours after the accident, officers were finally able to
draw the defendant’s blood. Id. Johnson held that the warrantless blood draw was
permissible because the officer, in investigating a serious injury accident, “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
4
The Iowa statute in question closely tracked the rationales of Schmerber, allowing a
nonconsensual, warrantless blood draw when the operator of a motor vehicle is arrested for an
“accident that causes a death or personal injury reasonably likely to cause death” when three
additional elements are present: (1) the officer reasonably believes the blood drawn will produce
evidence of intoxication; (2) the blood is drawn by a medical personnel; and (3) the officer
reasonably believes that he or she is confronted with an emergency situation in which the delay
necessary to obtain a warrant threatens the destruction of the evidence. Id. at 342 (quoting Iowa
Code section 321J.9 (2005)).
9
evidence.” Id. at 342-43 (quoting Schmerber, 384 U.S. at 770). The Supreme Court of
Iowa rejected the idea that Schmerber created a per se exigency based on the nature of
blood-alcohol alone. Id. at 344. Instead, it noted that “there was more underlying the
seizure of blood in Schmerber than the mere phenomenon of alcohol dissipation.” Id.
Finally, the Sixth Circuit held that an arrest is not a constitutional prerequisite to a
warrantless blood draw in United States v. Chapel, 55 F.3d 1416, 1420 (9th Cir. 1995).
In so holding, the court discussed the constitutionality of nonconsensual, warrantless
blood draws. It reasoned that although a nonconsensual, warrantless blood draw may be
based upon probable cause instead of requiring an arrest, Schmerber requires more:
In addition to probable cause, the other Schmerber requirements remain in
place. The officer must still reasonably believe that an emergency exists in
which the delay necessary to obtain a warrant would threaten the loss or
destruction of evidence. The procedures used to extract the sample must
still be reasonable and in accordance with accepted medical practices.
Id. at 1419.
Chapel’s interpretation of Schmerber is consistent with this Court’s holding today.
The DWI defendant in Chapel had been severely injured in a motorcycle accident;
therefore, the officer was faced with an emergency situation that—taken with the natural
dissipation of blood-alcohol, the accident investigation, and the hospital transportation
time delay—constituted exigent circumstances justifying a nonconsensual, warrantless
blood draw. See id. at 1417-20.
Contrary to the State’s assertion, no case in Missouri supports a per se rule that the
natural dissipation of blood-alcohol is alone sufficient to constitute exigent circumstances
10
that would permit officers in every DWI case to take blood from a suspect without
consent or a search warrant. 5 The State argues that State v. LeRette supports its position.
858 S.W.2d 816 (Mo. App. 1993). In LeRette, the defendant was the driver of an
automobile involved a serious-injury accident. Id. at 817. When the officer arrived at the
scene, emergency personnel were loading the defendant into an ambulance. Id. While
investigating the accident, the officer found several beer cans among the wreckage debris,
including a half-empty can. Id. Later, at the hospital, the officer found the defendant with
a tube down his throat and unable to communicate. Id. The officer directed a hospital
employee to take a blood sample from the defendant for the purpose of determining his
blood-alcohol content. Id. LeRette justified the warrantless blood draw based on the facts
that the percentage of alcohol in the bloodstream diminishes with time and that the delay
caused by having to obtain a warrant might result in the destruction of evidence. The
court stated that “both prongs of the exigent circumstances exception were established—
probable cause that incriminating evidence would be found and exigent circumstances
justifying the search.” Id. at 819. While the court in Lerette did not specifically identify
5
The State cites State v. Ikerman and State v. Setter to support its position that
warrantless blood draws are permissible in DWI cases, but both of these cases applied
Schmerber in terms of a search incident to arrest. Setter, 721 S.W.2d 11, 16 (Mo. App.
1986); Ikerman, 698 S.W.2d 902, 904-05 (Mo. App. 1985). The State acknowledges,
however, that “[w]hile Schmerber casts its decision in terms of the ‘search incident to
arrest’ exception to the warrant requirement, it has since been read as an application of
the ‘exigent circumstance’ exception.” Appellant’s Substitute Brief at 17; See also Berry,
866 F.2d at 891; Rodriguez, 156 P.3d at 776; Johnson, 744 N.W.2d at 342; State v.
Shriner, 751 N.W.2d 538, 543 (Minn. 2008); Chapel, 55 F.3d at 1418; State v. Bohling, 494
N.W.2d 399, 402 (Wis. 1993). To the extent that Ikerman and Setter interpret Schmerber to
allow a nonconsensual warrantless blood draw incident to arrest in DWI cases without
other exigent circumstances, they are no longer to be followed.
11
the exigent circumstances, it is significant to note that there was some passage in time for
the officer to remain at the scene to do investigatory work while the defendant was taken
to the hospital. See id. at 817. Further, when the officer later arrived at the hospital, he
was confronted with an individual with whom he could not communicate. Id. at 817.
The factual circumstances in LeRette are significantly different from the case
here, as notably LeRette involved an accident that required investigation and a further
time delay when the driver was taken to a hospital for treatment, unlike the routine DWI
stop in this case. LeRette embodied a straight forward application of the “special facts”
of emergency contemplated by Schmerber, in that the DWI suspect in LeRette—just as
the defendant was in Schmerber—was involved in a serious-injury accident that caused a
time delay in both the investigation of the accident and the transportation of the defendant
to the hospital. Id. at 819. 6
C. This Court Disagrees with Jurisdictions That Have Adopted
a Per Se Exigency Analysis
In contrast to the forgoing, Wisconsin, Oregon, and Minnesota have adopted the
rationale that the rapid dissipation of alcohol alone constitutes a sufficient exigency to
draw blood without a warrant. State v. Bohling, 494 N.W.2d 399, 406 (Wis. 1993); State
v. Machuca, 227 P.3d 729, 736 (Or. 2010); State v. Netland, 762 N.W.2d 202, 212-13
(Minn. 2009). In a 4-3 decision, the Supreme Court of Wisconsin stated:
Schmerber can be read in either of two ways: (a) that the rapid dissipation
of alcohol in the bloodstream alone constitutes a sufficient exigency for a
6
To the extent that Lerette could be read as permitting a warrantless blood draw based on the
mere fact that alcohol diminishes in the blood stream over time, it is no longer to be followed.
12
warrantless blood draw to obtain evidence of intoxication following a
lawful arrest for a drunk driving related violation or crime-as opposed to
taking a blood sample for other reasons, such as to determine blood type; or
(b) that the rapid dissipation of alcohol in the bloodstream, coupled with an
accident, hospitalization, and the lapse of two hours until arrest, constitute
exigent circumstances for such a blood draw.
Bohling, 494 N.W.2d at 402. The Wisconsin court believed that that the more reasonable
interpretation of Schmerber was the former. Id. It reasoned that the exigency in
Schmerber was caused “solely” by the fact that alcohol dissipates in a person’s blood
stream over time. Id. Bohling held that a warrantless blood draw is permitted when a
person is lawfully arrested for a drunken-driving related crime and there is a clear
indication that the evidence obtained will produce evidence of intoxication. Id. at 406. 7
Similarly, the Supreme Court of Oregon held that the natural dissipation of a
defendant’s blood-alcohol is an exigent circumstance that will “ordinarily permit a
warrantless blood draw.” Machuca, 227 P.3d at 736 (relying on its prior interpretation of
Schmerber in State v. Milligan, which stated “the evanescent nature of the evidence
sought … constitutionally justifies [a warrantless blood draw].” 748 P.2d 130, 136
(1988)).
Finally, a divided Supreme Court of Minnesota held that the natural dissipation of
alcohol in the blood creates “single-factor exigent circumstances” that justify a
warrantless, nonconsensual blood draw. Netland, 762 N.W.2d at 212-213 (citing State v.
Shriner, 751 N.W.2d 538, 549-50 (Minn. 2008)). Shriner interpreted the Schmerber
7
In a subsequent 4-3 decision, the Supreme Court of Wisconsin extended its holding in Bohling
to permit nonconsensual, warrantless blood draws even when the defendant has consented and
submitted to a breath test. State v. Faust, 682 N.W.2d 371, 379 (Wis. 2004).
13
exigency to rest only on the fact 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.” Shriner, 751 N.W.2d at 545 (quoting Schmerber, 384 U.S. at 770; internal
quotation marks omitted).
This Court cannot agree with these interpretations of Schmerber. In Schmerber,
the Supreme Court rejected a per se exigency and explicitly warned against such
expansive interpretations:
It bears repeating, however, that we reach this judgment only on the facts of
the present record. The integrity of an individual’s person is a cherished
value of our society. That we today hold that the Constitution does not
forbid the States minor intrusions into an individual’s body under
stringently limited conditions in no way indicates that it permits …
intrusions under other conditions.
Schmerber, 384 U.S. at 772. Schmerber requires some exigency beyond the mere natural
dissipation of blood-alcohol evidence. It explicitly found that the time delay that resulted
from both the investigation of the accident and the transportation of the defendant to the
hospital were “special facts” that authorized a warrantless blood draw under the Fourth
Amendment. Id. at 770-71. To allow a warrantless blood draw in the absence of such
“special facts” would be to ignore the Supreme Court’s statement in Schmerber that the
Constitution in no way permits warrantless blood draws “under other conditions.” Id. at
772.
IV. Conclusion
Schmerber reaffirms that warrantless intrusions of the body are not to be
undertaken lightly and that exigency is to be determined by the unique facts and
14
circumstances of each case. Schmerber directs lower courts to engage in a totality of the
circumstances analysis when determining whether exigency permits a nonconsensual,
warrantless blood draw. It requires more than the mere dissipation of blood-alcohol
evidence to support a warrantless blood draw in an alcohol-related case. Schmerber, 384
U.S. at 770-71. Officers must reasonably believe that they are confronted with an
emergency where the delay in obtaining a warrant would threaten the destruction of
evidence. Id. at 770. The question of whether an emergency exists sufficient to trigger
the exigent circumstances exception to the warrant requirement heavily depends on the
existence of “special facts” and must be determined on a case-by-case basis. In routine
DWI cases, in which no “special facts” exist other than the natural dissipation alcohol in
the blood, a warrant must be obtained before such evidence is gathered. This requirement
ensures that the inferences to support the blood draw be made by a neutral and detached
judge “instead of being judged by the officer engaged in the often competitive enterprise
of ferreting out crime.” Johnson, 333 U.S. at 13-14. The warrant requirement is
especially important when the issue is “whether or not to invade another’s body in search
of evidence of guilt.” Schmerber, 384 U.S. at 770.
Defendant’s case is unquestionably a routine DWI case. Although his body was
working naturally to expunge the alcohol in his system, there were no other “special
facts” of exigency in his case. There was no accident to investigate and no injuries to
attend to that required the patrolman to expend time, delaying his request of Defendant to
submit to blood-alcohol testing. The patrolman could not identify any exigent
circumstances and made no attempt to obtain a search warrant. The nonconsensual,
15
warrantless blood draw was taken only 25 minutes after Defendant was stopped. Timebased considerations similar to those in Schmerber were not present here. 8 There were
no “special facts” in this case, other than the natural dissipation of blood-alcohol, that
indicated the arresting patrolman was faced with an emergency where the delay in
obtaining a warrant would threaten the destruction of evidence. He was not justified,
therefore, in failing to seek a warrant before drawing Defendant’s blood over his refusal
to consent. 9
Defendant’s Fourth Amendment right to be free from unreasonable searches of his
person was violated, and the trial court’s judgment sustaining Defendant’s motion to
suppress is affirmed. The State may go forward in the prosecution of the DWI charge
against Defendant based on evidence gathered in conformity with the Constitution. The
case is remanded.
Teitelman, C.J., Russell,
Breckenridge, Fischer, Stith,
and Price, JJ., and Asel, Sp, J.
concur. Draper, J. not participating.
8
For example, in Johnson, more than two and a half hours had passed between the accident and
the warrantless blood draw. Johnson, 744 N.W.2d at 344. In Schmerber, the exact time that had
elapsed was not reflected in the opinion, but the investigation of the accident and the
transportation of the defendant to the hospital caused a time delay. Schmerber, 384 U.S. at 77071.
9
Because the warrantless blood draw in this case was a violation of Defendant’s Fourth
Amendment right to be free from unreasonable searches, there is no need to address the State’s
arguments based on Missouri’s implied consent law.
16
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