Reconciling a split of authority: a South Dakota response to recent developments in drunk driving law.

• Author: Hogden, Aron

For over forty years, South Dakota courts have presumed the Fourth Amendment does not require an officer making an arrest for drunk driving to obtain a warrant before requiring a blood test. Officers, acting on this presumption, have required suspects to submit to blood tests even after the suspect refuses. Recent case law shows this presumption is mistaken. The need for a warrant depends on the totality of the circumstances. The South Dakota judiciary should act to reclaim the weighty role of standing between police officers seeking evidence through a Fourth Amendment search in DUI cases and the citizenry they have sworn to protect. To accomplish this, the judiciary should unequivocally articulate circumstances that require a warrant and circumstances where police officers may forego obtaining a warrant. When police officers clearly understand what the courts expect, the officers' job is made easier, the judiciary's warrant approval process becomes more efficient, and the citizens' rights are better protected.

I. INTRODUCTION

The Fourth Amendment (1) requires police officers obtain a warrant before a person arrested for Driving Under the Influence (DUI) can be required to submit to a blood test. (2) If, however, the police officer reasonably believes he faces an emergency "in which the delay necessary in obtaining a warrant ... threaten[s] 'the destruction of evidence,'" the officer may forego the warrant requirement. (3) This exception to the general warrant requirement falls within what are known as exigent circumstances. (4) In a DUI case, the most important evidence of the crime in obtaining a warrant that are not as prevalent in urban jurisdictions. (176) These include: the lack of cell phone coverage to call a magistrate, distance to medical facilities, and the unavailability of a magistrate to make the warrant determination. (177) Each future determination made by South Dakota courts will help inform police officers and prosecutors about how to conform their procedures to Fourth Amendment requirements, however the courts should not wait to spell out general guidelines: too much is at stake. (178)

In the meantime, courts should not exclude the BAC evidence where an officer relied on the Supreme Court of South Dakota's past decisions condoning warrantless nonconsensual blood tests in DUI cases. (179) After all, the purpose of the exclusion of evidence for Fourth Amendment violations is to deter future conduct, not to penalize reasonable reliance on past judicial precedent. (180) South Dakota courts should, on the other hand, caution officers that creating exigency by artificially delaying a blood draw would be rejected. (181)

3. GUIDELINES FOR OFFICERS

Unfortunately, based on the most current statement of the law governing DUI blood tests, "A police officer ... would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test." (182) This confusion can, and should, be cleared up at the jurisdictional level. (183) As a starting point, police officers should get a warrant whenever possible, not just to meet Fourth Amendment requirements, but also because warrants insulate the blood test from a suppression motion and switch the burden of proof to the defendant claiming the search, i.e., blood test, was unlawful. (184)

South Dakota allows telephonic warrants, but they are not streamlined. (185) This type of warrant requires an officer to fill out the warrant application and read it verbatim to the issuing magistrate. (186) Once the magistrate approves the warrant, the requesting officer can sign the magistrate's name. (187) Because the circumstances in a DUI case are often routine, prosecutors and court officers should advocate for a more efficient process including creating form warrants that require less time to fill out yet still provide individualized and detailed information to the issuing magistrate. (188) South Dakota should also consider enacting laws that authorize the use of radio and email to facilitate the warrant process. (189) Taking an "all of the above" approach to streamlining the warrant process will ensure the state can effectively enforce its DUI laws while respecting the Fourth Amendment protections of its citizens. (190)

Absent a warrant, courts should provide police officers with general guidelines to follow so they understand Fourth Amendment requirements in a DUI situation. (191) Justice Kennedy advocated this type of prospective approach in his concurrence in McNeely, (192) He explained, "[A]lways dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment." (193) However, Justice Kennedy added that states could adopt rules, procedures, and protocols that give police officers guidance, yet still meet Fourth Amendment reasonableness requirements. (194) Unfortunately, no specifics were provided in the opinion. (195) Chief Justice Roberts proposed a rule, which was ultimately rejected, providing an example of a procedure that is insufficient. (196) He proposed that a police officer should try to get a warrant on the way to the hospital. (197) If the officer is unable to get a warrant by the time he or she gets to the hospital, the officer may proceed without one and acquire the blood sample. (198) This rule fell short of support because it presupposed the first part of the two-part test embraced by the majority--blood alcohol dissipation alone creates the compelling need for official action. (199) Because of this presupposition, Chief Justice Roberts' rule focused solely on the time it takes the officer to get to the hospital. (200) Although clear and easy to follow for police officers, this type of guideline did not carry the day because it would have the potential of acting as an odd disincentive to jurisdictions, hampering their efforts to become more efficient in processing warrants, and skewing the focus toward the actions of the officer rather than the effectiveness of the search. (201) For instance, if a person were arrested near a hospital, the arresting officer would have less time to acquire a warrant than an officer transporting an arrestee from a more distant scene. (202) The nearby officer may claim he or she did not have time to acquire a warrant in transit even though the officer may be able to do so without significantly compromising the search. (203)

What can be inferred from Supreme Court jurisprudence is that an officer's first action when a suspect refuses a Breathalyzer test should be to attempt to get a warrant. (204) Next, the officer should consider whether there are any "special facts" (such as an accident or injury) that make it unlikely the officer will be able to obtain the warrant without compromising the results of a blood test. (205) Absent any "special facts," the officer should also consider whether there are any "practical problems" known to the officer within his or her jurisdiction that would hinder obtaining a warrant in the particular circumstances (such as no magistrate on duty or lack of cell phone coverage). (206)

An alternative to this type of step-down process could be to instruct arresting officers to request a Breathalyzer; however, if the suspect refuses, the officer should make a good faith effort to get a warrant. (207) If a warrant cannot be obtained within 30 minutes and the officer and suspect are at or near the hospital, it would be permissible for the officer to proceed with the blood test without a warrant. (208) The compelling need is supported by the inexorable reduction in BAC evidence, evinced in scientific literature, while the time element is accounted for with a conclusive proximity constrained deadline. (209)

The South Dakota Supreme Court, legislature, and law enforcement community can and should work together to promulgate guidelines that make the officers' job easier, improve the efficiency of the judiciary's warrant approval process, and ensure citizens' rights are better protected. (210)

IV. CONCLUSION

The 2006 amendment to the South Dakota implied consent statute leaves the decision to require a DUI suspect to take a blood test to the discretion of the arresting officer. However, the apparent conflict in case law between McNeely and South Dakota Supreme Court jurisprudence...