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Nonconsensual Blood Draws

When arrested for a DUI, a choice is supposed to be provided between a breath and a blood test. The law below discusses what happens when an individual does not consent to a blood test, but law enforcement proceeds to draws blood.  There are two main cases that deal with this issue,Schmerber v. California and Missouri v. McNeely.  The cases are discussed below. Just so it is clear to the reader though, the standard is consent, not force. Just because a citizen does not physically refuse the blood test, does not mean that there was a valid consent. In order for the prosecution to be able to admit the results of a blood test into evidence, they have to show that the blood was legally taken. The Fourth Amendment protects against unlawful search and seizure, and there is nothing more sacred than our own bodies.  Therefore, when the police stick a needle in a citizens vein, they have to show that it was either done with a warrant based on valid probable cause, that is was not realistic to obtain a warrant in a timely manner (something that would be difficult to show since warrants can be obtained by telephone), or there was valid consent.

CONSENT SEARCHES:

The burden of justifying a warrantless search, seizure, arrest or detention falls on the prosecution. (Badillo v Superior Court (1956) 46 C2d 269, 294 P2d 23; Wilder v Superior Court (1979) 92 CA3d 90, 294, 154 CR 494  When the prosecution claims that a search was consensual, it has the burden of proving that the search comes within the consent exception to the warrant requirement. A vital aspect of this burden is “proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.” People v. James (1977) 19 C3d 99, 106; Bumper v. North Carolina (1968) 391 US 543, 548-549.

So what does this mean? First, it means that if the District Attorney is arguing that it was a consensual search, it is their burden to prove that. Second, it means that the consent had to be from your own free will. Did the individual voluntarily agree to provide blood, or was the individual only agreeing to provide blood because they were being told by law enforcement that their license would be suspended for a year or that it could lead to further fines and/or imprisonment? Was the individual specifically told by the police that they were required to complete a chemical test? If so, it is starting to look a lot like what the United States Supreme Court was concerned with in Bumper v. North Carolinaa mere submission to an express or implied assertion of authority.

Schmerber v. California

The law applicable to warrantless blood draws in the context of driving under the influence cases is relatively sparse.  Schmerber v. California(1966) 384 US 757 was the first case to address this issue. In Schmerber, blood was drawn when the defendant was hospitalized after an automobile accident and was arrested for driving under the influence at the hospital. Although defendant did not consent, the physician withdrew blood from the defendant's body at the direction of law enforcement. The defendant then attempted to have the test results suppressed. The United States Supreme Court applied a totality of the circumstances approach to decide whether defendants Fourth Amendments rights had been violated.  The Court first went through the argument generally used in warrantless search cases that the inability to search could lead to the destruction of evidence.

“The interests in human dignity and privacy which the Fourth Amendment protects forbids any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law offices to suffer the risk that such evidence may disappear unless there is an immediate search.” Schermber at 769-770.

The Court discussed the underlying reasoning behind search warrants. “Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” Schmerber at 770. “The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.” Schmerber at 770.

The Court then discussed the factors used to determine whether the search was reasonable. The Court found that the delay caused by taking the defendant to the hospital and to investigate the scene of the accident, coupled with the natural dissipation of alcohol from the bloodstream justified an emergency in which law enforcement could not seek out a warrant. Law enforcement had no way of  obtaining a warrant and taking the Defendant to the hospital in a timely manner. The Court also was satisfied that a blood draw was a proper means of obtaining the evidence, and also that the test was performed in a reasonable manner.

“Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.”Schmerber at 771, 772

The Court held: “We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Schmerber at 772.

MISSOURI V. McNEELY

Forty-Seven years later, the United States Supreme Court was once again confronted with the issue of warrantless blood draws in the context of driving under the influence, in the case of Missouri v. McNeely No. 11-1425.  The facts of McNeely are somewhat similar to the facts of Schmerber. In McNeely, the defendant was arrested on suspicion of driving under the influence and taken to a nearby hospital for blood testing. McNeely refused to consent to the blood draw, but at the direction of law enforcement, a lab technician drew blood.  The defendant then moved to suppress the results of the blood test as an unlawful search. The State of Missouri argued that the natural dissipation of alcohol from the blood stream created an exigency that justified the warrantless blood draw.  The State argued that the natural dissipation of alcohol from the body is always an exigency, thus advocating a per serule.  The State did not argue other facts or circumstances of the case that justified an exigency.

The Court discussed how there ruling was limited by the fact that Missouri did not attempt to argue other facts and circumstances that showed the reasonableness of the search. In Schmerber, the Court ruled a totality of the circumstances approach was relied on. Here, Missouri wanted a rule that the “natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Id. at 1 The Court held that an exigency must be determined case by case based on the totality of the circumstances, consistent with the Schmerber court.

The Court discussed how Schmerber was a limited ruling and specifically stated so. They also discussed how the argument of the destruction of evidence was no longer a strong one in light of the technological advances in obtaining a warrant that have occurred since Schmerber was decided.

“The State's proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.” Id. at 10, 11

Currently, in California, under Penal Code § 1526(b) a magistrate may issue a search warrant upon oath by telephone. The Court went on to discuss how the fact that it generally takes time to transport the defendant to a hospital provides the opportunity to obtain a warrant, and therefore the argument that there is no time available is not convincing in 2013.

The Court discussed that is was notable that “a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether. Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.” Id. at 18-19.

As stated earlier, the Court did not go through other factors in assessing the totality of the circumstances since Missouri did not bother to argue them initially.  What the Court basically did in McNeely was to affirmSchmerber. Whether a non-consensual warrantless blood draw is valid under the Fourth Amendment is decided based on the totality of the circumstances on a case by case basis. The argument that the natural metabolization of alcohol is an exigency that provided the basis for an exception to the warrant requirement was no longer valid based on the technological advances that have taken place since 1966. Therefore, when a warrantless blood draw is challenged as a violation of the Fourth Amendment it must be decided by looking at the totality of circumstances.  But remember those circumstances still have to show that it would not be possible to obtain a warrant in a timely manner, which as discussed is extremely tough, or there was a valid consensual blood draw.

Resources:

Missouri v. McNeely

Schmerber v. California

California Penal Code 1526

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