Drawing on the Constitution: an empirical inquiry into the constitutionality of warrantless and nonconsensual DWI blood draws.

AuthorStockmann, Kevin
PositionDriving while intoxicated

State v. McNeely, 358 S.W.3d 65 (Mo. 2012)(per curiam)

  1. INTRODUCTION

    In the early 1990s, approximately 50% of the total number of traffic fatalities that occurred in the United States were alcohol-related. (1) In response to this high percentage, the National Highway Traffic Safety Administration of the United States Department of Transportation recommended to Congress that all states set .08 blood-alcohol content (BAC) as the threshold for driving while intoxicated (DWI) offenses. (2) This was after Congress already encouraged, and in practical effect mandated, (3) states to set their minimum drinking age to 21 years old by awarding federal subsidies to states that did so. (4) Taking these actions into account, it is obvious that Congress has expressed a clear intention "to combat this carnage" caused by drunk driving. (5) However, the Fourth Amendment's evidentiary limitations inherently conflict with this goal. (6) While the Fourth Amendment may be in tension with certain aspects of law enforcement, this conflict is particularly contentious because Supreme Court precedent on this matter has largely left "questions attendant to bodily evidence ... to the states." (7) Accordingly, what evidence may be used to convict an alleged drunk driver for DWI has long been an area of debate.

    A variety of techniques and devices have been made available to law enforcement officers to apprehend an alleged intoxicated driver, but whether those methods have provided courts with admissible evidence is another question. (8) Of all these methods, (9) the blood draw has been widely heralded as the "gold standard of DWI evidence" because it is the least capable of being corrupted by errors on the part of the person administering the test. (10) This widespread "primary authority given blood tests over all other forms of assessing intoxication has made the need for clear constitutional guidance all the more important." (11) More specifically, exactly when a law enforcement officer can conduct a blood draw on an alleged drunk driver has been a hotly contested issue in recent years. (12)

    In Schmerber v. California, (13) the Supreme Court of the United States addressed when a police officer may order a blood draw on an alleged intoxicated driver without a warrant or the driver's consent. (14) In that case, the Court held that the circumstances presented "special facts" that justified the challenged warrantless and nonconsensual blood draw. (15) However, the Court's ambiguity as to what constituted "special facts" has generated a great deal of confusion. (16) Courts have interpreted Schmerber in two distinct ways. Some have stated that the rapid dissipation of alcohol in an individual's bloodstream without more constitutes a "special fact" justifying such a blood draw. (17) Others have held that more "special facts" are required for such a blood draw to be constitutional under the Fourth Amendment. (18)

    In State v. McNeely, (19) the Supreme Court of Missouri took its turn at interpreting Schmerber and stated that the rapid dissipation of alcohol in an individual's bloodstream by itself is not a "special fact" justifying a warrantless and nonconsensual blood draw on an alleged drunk driver. (20) Like many other courts, the Supreme Court of Missouri largely relied on interpreting the text of Schmerber to justify its decision.

    This Note assesses how courts have interpreted the text of Schmerber to justify conclusions while determining whether policy justifications support any particular interpretation. (21) It then considers whether empirical data may favor one interpretation of Schmerber by examining the dissipation rate of alcohol from an individual's bloodstream, the average time it takes a law enforcement officer to obtain a warrant for a blood draw on an alleged intoxicated driver, and the reliability of retrograde extrapolation. (22) This Note confirms that neither the text of Schmerber nor the policy underlying its holding clearly favors a particular interpretation on the constitutionality of warrantless and nonconsensual blood draws on an alleged drunk driver. (23) It then concludes that empirical data supports the position that the rapid dissipation of an individual's BAC by itself is a "special fact" justifying a warrantless and nonconsensual blood draw. (24)

  2. FACTS AND HOLDING

    Tyler McNeely was driving above the posted speed limit along a Missouri state highway in Cape Girardeau during the early morning hours of October 3, 2010. (25) Corporal Mark Winder, a Missouri state highway patrolman, observed McNeely speeding and crossing the center line of the highway three times. (26) Corporal Winder pulled McNeely over at 2:08 a.m. (27)

    Corporal Winder initially planned on conducting a routine traffic stop for speeding. (28) However, Corporal Winder approached McNeely's truck and observed that McNeely's eyes were glassy and bloodshot, his breath smelt of alcohol, and his speech was slurred. (29) Corporal Winder's routine traffic stop then became a DWI investigation. (30)

    To help determine McNeely's BAC, Corporal Winder took several steps. (31) First, he administered four different field sobriety tests. (32) McNeely performed very poorly on each test. (33) Subsequently, Corporal Winder asked McNeely to give a breath sample into a portable breathalyzer to more precisely determine McNeely's BAC. (34) However, McNeely repeatedly refused consent. (35) Corporal Winder then arrested McNeely and began to transport him to the Cape Girardeau County Jail to administer a breath test. (36) McNeely refused to do a breath test there as well. (37) Corporal Winder then transported McNeely to the Saint Francis Medical Center to obtain a blood sample to more precisely determine McNeely's BAC. (38) Although McNeely also refused consent to a blood sample and Corporal Winder did not obtain a warrant to take one, a blood sample was taken. (39)

    The State of Missouri charged McNeely with DWI in the Circuit Court of Cape Girardeau County, Missouri. (40) McNeely filed a motion to suppress the blood sample evidence, arguing that the blood sample was taken in violation of the Fourth Amendment without a warrant or consent. (41) The circuit court granted McNeely's motion. (42) In its opinion, the court stated that the Fourth Amendment requires "exigent circumstances" to draw blood from an alleged drunk driver without a warrant or consent. (43) Additionally, the court noted that the only time such a blood draw has been qualified by the Supreme Court of the United States as an "exigent circumstance" was when there were "special facts" of a delay that would threaten the destruction of evidence, and no time to secure a warrant. (44) Because there was no evidence of a substantial delay between the traffic stop and the blood draw, the circuit court held that there was no evidence of any "special facts" to permit a warrantless and nonconsensual blood draw. (45) The State brought an interlocutory appeal. (46)

    On appeal to the Court of Appeals for the Eastern District of Missouri, the State argued that the Supreme Court of the United States established that the rapid dissipation of alcohol in an individual's bloodstream is by itself a "special fact" constituting an "exigent circumstance" justifying a warrantless and nonconsensual blood draw on an alleged intoxicated driver. (47) McNeely, on the other hand, maintained that more "special facts" are required. (48) The appellate court agreed with the State. (49) The court noted that the rapid dissipation of alcohol in an individual's blood is sufficient without more to qualify as a "special fact" permitting a warrantless and nonconsensual blood draw on an alleged drunk driver. (50) Therefore, the court stated that this "special fact" by itself creates an "exigent circumstance" justifying such a blood draw. (51) The appellate court stated it would reverse the circuit court, yet it transferred the case to the Supreme Court of Missouri in light of the vagueness of Missouri law on this topic and the public interest in the issues involved.

    On transfer, the Supreme Court of Missouri affirmed the decision of the circuit court. (53) Though the parties maintained the same positions they had in the appellate court, the Supreme Court of Missouri denied the State's arguments and affirmed the grant of McNeely's motion. (54) The court noted that the Supreme Court of the United States explicitly stated that a court should not hold that the natural dissipation of blood-alcohol per se constitutes a "special fact" that constitutes an "exigent circumstance." (55) Therefore, the Supreme Court of Missouri held that when a warrantless and nonconsensual blood draw has been taken from an alleged intoxicated driver, it qualifies as an "exigent circumstance" only if "special facts" beyond the rapid dissipation of alcohol in an individual's bloodstream exist to justify the act. (56)

  3. LEGAL BACKGROUND

    The Fourth Amendment provides, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation...." (57) This clause fails to specify any standards for determining what is an unreasonable, and thus an unconstitutional, search or seizure. (58) Consequently, courts have faced, and continue to face, the task of addressing the hot-button issue of whether a police officer violates the Fourth Amendment by taking a warrantless and nonconsensual blood sample from an alleged intoxicated driver. (59) This Part first lays out the legal standards that the Supreme Court of the United States has set forth in interpreting the Fourth Amendment to determine this issue. This Part then analyzes how other courts have interpreted the Court's precedent on this matter. Finally, it concludes with a discussion of Missouri's stance on the subject.

    1. Supreme Court of...

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