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Can Police Take Your Blood Without Consent

In April of 2013, the United States Supreme Court ruled on Missouri v. McNeely. It held that law enforcement must (in most cases) get a warrant before taking a nonconsensual blood sample to test a driver's blood-alcohol level. Of course, like most anything in law, there are exceptions.


In McNeely, the defendant was stopped early in the morning by a highway patrolman for speeding and swerving. The defendant failed several field sobriety tests and was asked to submit to an alcohol breath test at the scene, which he refused. The defendant was then arrested and transported to a local hospital. The defendant again refused to consent to a blood test. Rather than seeking a 'readily available' warrant, the police officer instead directed the lab technician to take the defendant's blood sample. The test results indicated a blood alcohol level about twice Missouri's legal limit, and the defendant was charged with driving while intoxicated.


In this case, at issue was whether the natural metabolization of alcohol in the bloodstream (i.e., the body's ability to metabolize and destroy evidence) presented a per se exigency that justified an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing in all drunk-driving cases. The Court held that it did not. The Court noted that its precedent demanded a case-by-case analysis when lower courts determine whether exigent circumstances justified a warrantless search. Although the State argued that exigency necessarily exists in any alcohol-related blood test given that blood-alcohol content rapidly diminishes with time, the Court found no reason to adopt a blanket per se rule. The Court agreed that significantly delaying a blood test to obtain a warrant would "negatively affect the probative value of the results." But it reasoned that when the State has time to obtain a warrant, the Fourth Amendment requires it to do so. When obtaining a warrant is impractical, the blood testing may very well merit an exigency exception.


To illustrate this rationale, let's apply it to a couple of scenarios. In large metropolitan areas like Los Angeles, some judges are available during nightshifts to issue warrants. So if the LAPD or CHP wants to conduct a nonconsensual blood draw on a suspect, they can quickly seek a telephone warrant, so it doesn't violate the suspect's 4th Amendment rights while preserving any potential evidence in the suspect's body. So when the police have time to obtain a warrant, and in this case, it only takes a few seconds to make that phone call, the Fourth Amendment requires the warrant to be obtained.


This becomes more interesting if the traffic stop takes place at night in a rural area. In some cases, small towns do not have the resources to have judges on call for telephone warrants. As a result, there might be an unavoidable delay in getting judicial authorization. So the emergency here is that due to the delay in obtaining a warrant, the police cannot wait for the warrant to the issue because if they did, the suspect's body would have likely destroyed the evidence. Therefore, under these circumstances, since obtaining a warrant is impractical, a nonconsensual blood test may very well merit an exigency exception.


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