A state highway officer was performing his regular patrol at 2:00 a.m. when he stopped a driver for speeding.1 The routine traffic stop quickly turned into a DWI investigation when the driver, Tyler McNeely, exhibited the telltale signs of drunkenness: the smell of alcohol on his breath, bloodshot eyes, and slurred speech.2 The officer arrested McNeely after he failed standard field sobriety tests.3 When asked to submit to a DWI Breathalyzer test, McNeely refused, so the officer took him to a hospital and ordered a lab technician to draw McNeely’s blood for chemical testing.4 The test results revealed a blood-alcohol content of 0.154 percent—almost two times the legal limit of 0.08%.5
At trial, McNeely moved to suppress the blood test results, arguing that the forced withdrawal of his blood constituted an unreasonable search in violation of his Fourth Amendment rights.6 The State of Missouri relied on the 1966 U.S. Supreme Court decision Schmerber v. California7 in arguing that the quick dissipation of alcohol from McNeely’s body constituted exigent circumstances justifying the warrantless blood search.8 In Schmerber, the Supreme Court held that a nonconsensual, warrantless blood draw was permissible—under the specific exigencies present in that case—if based on probable cause and performed in a reasonable manner.9
The trial court disagreed with the State and excluded McNeely’s blood test results.10 The State then sought an interlocutory appeal to the Missouri Supreme Court, which affirmed the trial court’s ruling.11 The high court held that alcohol’s quick dissipation from a DWI suspect’s blood stream, by itself, does not create a per se exigent circumstance under Schmerber.12 In effect, the Missouri Supreme Court’s decision requires police officers to obtain search warrants from a neutral judge before forcing DWI suspects to undergo blood-alcohol tests.13
Unhappy with this ruling, the State of Missouri petitioned the U.S. Supreme Court for certiorari to resolve the question: “Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.”14 Schmerber v. California was Supreme Court’s last decision regarding the Fourth Amendment’s scope in protecting DWI suspects against nonconsensual, warrantless blood withdrawals.15 On September 25, 2012, the Supreme Court granted the State’s cert petition and agreed to revisit the Schmerber decision in light of the McNeely facts.16
Although McNeely involves a relatively routine interaction between a motorist and a police officer, the Supreme Court’s ruling will likely have widespread implications.17 State courts across the country are divided over whether a forced blood draw performed without a warrant constitutes an unreasonable search and seizure under the Fourth Amendment.18 The McNeely decision, due in early 2013, will define the Fourth Amendment rights of DWI suspects, as well as the power of police officers in performing blood-evidence searches.19
For a discussion of the legality of forced DWI blood draw programs in Louisiana, see Katherine L. Cicardo, We won’t take “No” for an Answer: The Validity of Louisiana’s “No Refusal” Policy, 73 La. L. Rev. __ (forthcoming, Nov. 2012).
Katherine L. Cicardo*