A case decided last month by the United States Supreme Court (Missouri v. McNeely) promises to require revisions of current law in Florida and may jeopardize future prosecutions for DUI that rely upon blood alcohol levels based upon analysis of blood draws.
In a previous ruling, the SCOTUS (Schmerber v. California, 1996) upheld a warrantless blood test of an individual arrested for DUI; the reason being that the officer might reasonably have believed he was confronted with an emergency and delay of a blood draw threatened destruction of evidence.
The Court in 1996 pointed out that the testimony in the lower court indicated that the percentage of alcohol in an individual’s blood typically decreased by approximately .015 percent to .02 percent per hour once the alcohol has been fully absorbed. The Court went on to note that since an individual’s alcohol level gradually declines after he stops drinking, a significant delay in testing can negatively affect the results. This factor was essential to holding in Schmerber that delay in securing a warrant would threaten the destruction of evidence.
However, in this new ruling the Court held that the natural metabolization of alcohol in the blood stream does not present a per se exigent circumstance that will justify warrantless blood draws in all drunk-driving cases. The Court further held that whether an exigency exists which would allow a warrantless blood draw in a DUI case is an issue that must be determined on a case-by-case basis, based upon the circumstances.
Given the current state of the ability for police departments to communicate with the judiciary in order to secure warrants, which makes application for same in a short period of time not impracticable, it cannot be said that exigency is presented in all cases which thereby justify warrantless blood tests.
The court noted that in the 47 years since Schmerber was decided there is a more expeditious processing of warrant applications and well over the majority of the states allow police officers to apply for search warrants remotely through the use of telecommunications and email. The Court therefore held that in drunk-driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case to justify conducting a blood test without a warrant.
IMPACT ON FLORIDA’S IMPLIED CONSENT LAWS
It is difficult to predict all the consequences that this new decision will have on future cases involving motorists driving under the influence. They may be farreaching; all 50 states have adopted implied consent laws in one form or another, requiring all operators of motor vehicles within their states to consent to blood alcohol content (BAC) testing if they’re arrested or detained on suspicion of a drunken driving offense.
Refusal to submit to a breath, urine or blood test is admissible as evidence in DUI criminal proceedings in Florida, for example, and results in an automatic suspension of the driver license for one year. Under Florida’s implied consent law, the following is allowed:
Forceful withdrawal of blood — If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.
Unconscious — Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle (Florida Highway Safety and Motor Vehicles).
That may change with McNeely; in the state of Florida cases involving searches consisting of warrantless blood testing can now be attacked based upon unreasonable search and seizure. For example, people who consented to having their blood drawn could challenge the administration of the test by arguing their consent was not given voluntarily. A good criminal defense lawyer in Florida could challenge its implied consent laws for punishing citizens for exercising their constitutional right to refuse a search not authorized by warrant.
The new ruling suggests that when officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
Russell Spatz is a trial attorney and principal in the Spatz Law Firm, 14707 S. Dixie Hwy., Ste 302. To contact him, call 305-442- 0200 or go to www.spatzlawfirm.com.