Give and Take?

On April 17, 2013, the United States Supreme Court (the “Court”) decided Missouri v. McNeely, which will have implications in the world of driving and marijuana. The facts in McNeely are that Mr. McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After being stopped and declining to take a breath test to measure his blood alcohol concentration (BAC), Mr. McNeely was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant in order to take Mr. McNeely’s blood and Mr. McNeely did not consent to having his blood drawn. At his trial Mr. McNeely moved to suppress his blood results because his blood had been taken without a search warrant and without his permission and therefore this seizure of his blood was unreasonable under the Fourth Amendment. Mr. McNeely argued therefore that the search and seizure of his blood violated his constitutional rights. The Court agreed and upheld the suppression of Mr. McNeely’s blood results.

Under constitutional law, a person is protected by the Fourth Amendment against any unreasonable search and seizure of his or her person. To establish that the search or seizure is reasonable, there needs to be “consent” to the search/seizure by the person or a “warrant” obtained by law enforcement from a judge finding that the search/seizure was reasonable. If law enforcement does not have consent or a warrant, then the search/seizure has to be executed as a result of an “exigent circumstance.”

So, the question decided in Missouri v. McNeely was whether the “natural dissipation of alcohol in the bloodstream” (losing the evidence by having the alcohol level decrease in the blood) amounts to an exigent circumstance qualifying the dissipation of blood as an “exception to the warrant requirement” thereby justifying taking the driver’s blood during a DUI investigation against the driver’s will and without a warrant.

The Court decided that Mr. McNeely’s stop involved a routine DWI (driving while intoxicated) investigation where no factors other than the natural dissipation of blood alcohol were there to support an emergency. Therefore, without having an emergency present (exigent circumstance), law enforcement did not have a reason to bypass a search warrant from a judge before conducting a “search” of Mr. McNeely’s body and “seizing” his blood against his will.

Examples of what would qualify as an “exigent circumstance” allowing law enforcement to search/seize a person without their consent and without a warrant would include: “need to provide emergency assistance to an occupant in a home,” “engage in hot pursuit of a fleeing suspect,” “enter a burning building to put out a fire and investigate its cause” and “to prevent the imminent destruction of evidence.” These are times when law enforcement does not need a search warrant or permission before they take action.

The Court decided an exigent circumstance though does NOT include taking blood during a DUI investigation just because the alcohol will dissipate.

Ann Toney, P.C. is a Denver-based law firm that focuses on medical cannabis business law and cannabis defense; and defending people charged with driving under the influence of alcohol and drugs (DUI/DUID). Ann Toney can be contacted via phone or web at (303) 399-5556 and www.anntoneylaw.com.