Missouri v. McNeely, ___U.S. ___, 2013 WL 1628934 (April 17, 2013) now holds that warrantless searches, via blood draws, for alcohol detection in DUI, Vehicular Assault and Vehicular Homicide cases impermissible as the natural dissipation of alcohol is not a per se exigent circumstances exception to the warrant requirement under the 4th Amendment.
How will this affect those cases in which blood is drawn for a Washington DUI arrest wherein the individual is incapable or unable to provide a breath test or is being treated in the hospital for injuries?
These individuals are read an Implied Consent Warning for Blood and the Government's position will be that since they are advised it is voluntary, it is an exception; however, I believe quite clearly the Supreme Court holds steadfast that a warrantless search via blood draw, regardless of the nature, in a DUI case is impermissible. The reason I believe it is impermissible is that in the Implied Consent context, there are repercussions for a Refusal of the test (that is, license suspension and use as evidence of consciousness of guilt) which amount to, arguably, coercion and that makes the "consent" not really consent.Undoubtedly, there will be numerous challenges and rulings for and against the suppression of blood draw evidence under RCW 46.20.308 (2) and (3) and the Supreme Court will have to further articulate its ruling. That is the nature of the beast in DUI cases.
Believe it or not you have less rights when charged with a DUI in any state and these blood draws were a perfect example.
Let the debate and litigation commence.
Officer Michl Reply
Posted Jun 13, 2013 at 15:52:16
Many don’t understand that any search and / or seizure without the benefit of a search warrant is presumed unlawful. The onus is on me to convince the court that warrantless instrusions are allowable under one of the jealously drawn exceptions to the warrant requirement. The McNeeley decision was a classic example of what happens when a government agent bulldozed such an intrusion into someones body without any authority whether under a law similar to what we have in Washington state’s Implied Consent Statute or with a warrant. We are warned about this in basic training. Unfortunately for law enforcement in the rest of the country who followed their legislated authority, there are a number of cases where blood evidence might be surpressed and cases outright dismissed. For future cases where we obtain search warrants, there will be a positive effect. Evidence obtained with a warrant is presumed to be seized lawfully and the court looks more favorably on a police officer who seeks a warrant before conducting a search or seizure. Also the public gets a better impression of the police and police moral improves when officers secure warrants.
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