Missouri Supreme Court to Weigh Warrantless Blood Draws for DUIs

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If you're on the roadways, you may have no right to refuse a blood test, the Missouri Court of Appeals suggested in a ruling today.
Do law enforcement officers in Missouri have the right to order a blood draw if they suspect a driver is drunk -- even if they haven't gotten a judge to issue a warrant?

The Missouri Court of Appeals believes the answer is yes. In an opinion issued today, the court indicated it would be inclined to overturn the long-held precedent in Missouri saying that a judge's warrant is needed. They're now forwarding the case to the state supreme court to get a definitive answer.

This could be very bad news for drunks. And, yes, the Fourth Amendment -- which guarantees citizens the right to be free from unreasonable searches and seizures.

At issue is a case involving a Cape Girardeau man, Tyler McNeely, who was pulled over after speeding and weaving in October 2010. McNeely refused to give a breath sample or a blood sample -- which is more accurate than a Breathalyzer and increasingly used in DUI cases across the nation.

But the officer who'd pulled over McNeely wouldn't take no for an answer. With a lab technician's help, he ordered the blood draw anyway. And when it showed McNeely's blood-alcohol level was well over the legal limit (0.154, which is almost twice the limit of .08), he ordered him taken to jail.

McNeely was charged with DUI, but his lawyers argued the blood test results should be thrown out -- and the trial court judge agreed. After all, precedent in Missouri has long held that you can only withdraw blood without consent if you have a warrant signed by a judge or "exigent circumstances." (Circumstances, for example, such as a delay between a car accident and being taken to the hospital -- at that point, if they don't draw blood quickly, the evidence can be lost as the driver sobers up.)

But prosecutors argued that should no longer be the standard -- and the appeals court suggested in its opinion today that it was likely to agree. They pointed out that Missouri has enacted an "implied consent" statute -- basically saying that using public streets is a privilege, not a right. By having a driver's license, a motorist "impliedly consents" to having their blood analyzed if they're suspected of driving drunk.

Now, state law had long contained an out to that implied consent. If a person refuses any such blood test, the law held, "then none shall be given." But, as the appellate court notes, the Legislature has removed that important clause from the statute. And that could change everything.

"No Missouri case has dealt directly with the import of the removal of the words 'none shall be given,'" the justices write.

While the justices believe the removal of "none shall be given" would allow warrantless searches in Missouri, they acknowledge such searches would be a "significant departure from current case law." So they decided to kick the Cape Girardeau case to the state's highest court in light of "the general interest and importance of the issues involved."

So, here's the score: Tyler McNeely gets to be the test case for intoxicated drivers everywhere in the Show-Me State. And unless the Missouri Supreme Court disagrees with the conclusions of the appellate court, you may have literally no right to refuse to a blood test if you're at the wheel of a car.

The Founding Fathers have got to be rolling over in their graves right now -- or at least the ones who enjoyed a good frosty beverage or two. The teetotalers always seem to be OK with this kind of stuff.

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13 comments
Danieljoeoconnor
Danieljoeoconnor

if the supreme court agrees it means that anyone with a drivers license [which is required for identity proof] will be vulnerable to being stopped by a police officer for any reason [ p. o. can simply claim suspicion of being drunk or drugged] and order that person to be restrained and his blood forcibly drawn. the police can then charge that person  with possession of whatever is alleged to have been found in his blood.  man, talk about a funking police state and the NW[law and] ORDER !! DAMN !!!!

Mike N.
Mike N.

How this be federally legal?  Won't this go to the US Supreme court?

Auntwiese
Auntwiese

If there is an accident where there are injuries then I believe consent doesn't need to be given but otherwise no way!

Your Momma
Your Momma

"But the officer who'd pulled over McNeely wouldn't take no for an answer. With a lab technician's help, he ordered the blood draw anyway. And when it showed McNeely's blood-alcohol level was well over the legal limit (0.154, which is almost twice the limit of .08), he ordered him taken to jail. 

McNeely was charged with DUI, but his lawyers argued the blood test results should be thrown out -- and the trial court judge agreed. After all, precedent in Missouri has long held that you can only withdraw blood without consent if you have a warrant signed by a judge or "exigent circumstances."So why weren't this officer and Lab Tech charged with assault? 

What is the issue with getting a warrant? If you have reasonable cause you should have nothing to fear, get the judge, get the warrant. Simple. Unless that is, the real issue is you know you don't have the cause to begin with, so you want to run roughshod over peoples rights... 

guest
guest

this article is just stupid. when the fourth amendment was written, people drove around in horse drawn vehicles. even drunk, there's a limit to how much damage you can do in one of those. 18th century documents have to be viewed in an 18th century context. I'm fairly certain that the founders would agree that the existence of two ton vehicles that go 120 miles per hour changes things a bit.

Handsome Jimmy
Handsome Jimmy

Question: when the cops draw the blood does the lab only check for alcohol at that point or does the blood test run the full scope of drug tests as well?  Slippery slope and all if you catch my drift.

Barton S.
Barton S.

the US Supreme Court already ruled that it was constitutional to draw blood from a DWI suspect without either a warrant or consent -- Schmerber v. California (1966).  This has pretty consistently been the law throughout the country ever since, although there was an issue with the wording of Missouri's "implied consent" law that was addressed in the new case.

guest
guest

In the US, you can't charge police officers, prosecutors, lab techs, etc. with a crime that derives from their official duties. They have immunity. What you can do is throw the evidence out. That's supposed to deter officials from violating the law in pursuit of a conviction, without taking us to a place where we have to put a cop on trial every time he makes a mistake.

Your Momma
Your Momma

YA! Totally agreed. 

And there wasn't the internet either. So called 'Free Speech', a 1A issue, is no longer valid either! The founding fathers did not, nor could not, foresee such an infectious and instantaneous means of communication available to the lowliest of people. 

Time to change that as well..... 

Sarah_Fenske
Sarah_Fenske

I don't know about Missouri, but in Arizona, where I used to write about this stuff, they would OFTEN order toxicology screenings to search for other drugs -- I saw people getting charged for having smoked up, or taken a prescription drug, even when they were under the legal limit for alcohol and had showed no signs of drug use.

So, yeah, I catch your drift, and I think you're right to be scared!

Your Momma
Your Momma

It seems to me, that case only addressed the 5th. 

There was a previous one that had decided upon the 4th, so they didn't have to consider it at that time. However, that case, the one that decided on the 4th in these circumstances was since overturned?? 

Seems like there could still be a legit challenge to this - and there should. I disagree that this is any reason to search someone's blood without a warrant. One could, perhaps, make the arguement it should be seized under certain circumstances to preserve physical evidence where there is reasonable suspicion *AND* exigent circumstance of the evidence would disappear if seizure was delayed for a warrant. 

However, the search itself should only be done after a warrant is obtained. 

Your Momma
Your Momma

"without taking us to a place where we have to put a cop on trial every time he makes a mistake."Which is a problem. When citizens make 'mistakes' they can be taken to trial, but when police do... ah... we can't be prosecuting police for assault, that's barbaric. 

I hear you, but what's good for the goose is good for the gander. We need accountability. 

Handsome Jimmy
Handsome Jimmy

Thanks for the info Sarah. So yea, that is some kinda slippery slope alright. I would imagine that all Missouri cops have an instant hard-on for this sort of gotcha blood test.

Hell, one might be better off by just blowing instead of the blood test? Lawyers should be having a field day with this issue.

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