The United States Supreme Court recently decided a case that could have a significant impact on pending and future OWI investigations. In Missouri v. McNeely, the Court held that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. This ruling a major departure of how the vast majority of OWI investigations are conducted in Wisconsin and other jurisdictions.
The facts of the case are unremarkable. Mr. McNeely was stopped for speeding. When he exited his truck, the police officer noted that he was unstable on his feet. The officer put Mr. McNeely through a series of field sobriety tests, which he failed. After arrest, the officer asked Mr. McNeely if he would consent to a breath test and he refused. The officer then drove Mr. McNeely to a hospital and asked for consent to do a blood draw. Again, Mr. McNeely refused. The officer instructed a hospital technician to draw a blood sample anyway. The results of the blood test showed a prohibited level of alcohol concentration. In short, Mr. McNeely was drunk.
Mr. McNeely’s attorney filed a pretrial motion asking the trial court to prohibit the prosecution from using the results of the blood test because the police did not obtain a warrant to draw Mr. McNeely’s blood. The officer relied upon the Implied Consent statute as authorization to obtain Mr. McNeely’s blood sample. The trial court agreed with Mr. McNeely’s attorney and suppressed the results of his blood test. There were various appeals in state court and eventually the case made it all the way to the United States Supreme Court.
The Supreme Court ruled in McNeely’s favor, but the case has a much broader impact beyond the specific facts of Mr. McNeely’s case. Prior to McNeely, at least in Wisconsin, many police departments did exactly what the cop did in Mr. McNeely’s case. If a person refused to provide a breath or blood sample, the police would have the option of pursuing a forced blood draw. As long as the forced blood draw was done at a hospital and in a reasonable manner by a medical professional the results of the test could be used against the driver. Refusing to take a breath or blood test does not prevent the police from obtaining a sample if they insist.
McNeely casts doubt on this practice. Although the Court did not say that the police officer must obtain a warrant in every case that may be the practical effect of the ruling. The Court made clear that the Constitution does not allow police to get a blood sample without ever having to get a warrant in any case. Rather, the Court instructs that each case will be determined by its specific facts.
Although Mr. McNeely benefited for the Court’s ruling other similarly situated defendants may not have such luck. The Court also made clear that state and local governments are free to create solutions, or other processes, that will allow the police to obtain search warrants in a timely manner. McNeely thrusts a lot of responsibility on the police officers to correctly determine whether they need a warrant to obtain a blood sample. Many officers will not want to risk the chance of the blood test getting tossed out of court down the road so they will likely be cautious and seek a warrant.
If you have a pending OWI case that involves a blood draw, especially a forced blood draw, it is important that you consult with an experienced OWI defense attorney to see if the McNeely decision could impact your case. It won’t be long before the police develop practices and procedures to safeguard against the ambiguity that the McNeely decision created and the window to take advantage of this case will be over.
