In a way, it was a huge win for the defense when the Supreme Court rejected a per se rule to allow police to take an accused drunk driver to the hospital to have a blood draw done without a warrant. Smart money was on a bright line rule that would allow blood draws without warrants. Some because they bought the argument that the evidence of blood alcohol was dissipating every second of needless delay, even though that’s not quite the way blood alcohol works. Others, including me, because it wouldn’t matter much, since no judge has ever turned down a warrant for a blood draw anyway.

But the Supremes surprised us, at least a little bit, when it came to smacking the papers with that big, old “approved” stamp.  In what ultimately amounts to a 5-4 decision with some bumps along the road, the majority in  Missouri v McNeely held there was no reason why the natural “loss of evidence” by dissipating alcohol in the blood stream constituted a per se exigent circumstance dispensing with the need for a warrant to draw blood.

Sounds good so far, right?  And it is.  Yet, more so on a doctrinal level than practical one.

The next point made by Justice Sotomayor for the gang was that the Fourth Amendment required a warrant if one could be reasonably obtained (and implicitly, not refused, though no one seriously imagines any judge refusing a warrant).  The opinion speaks to the new normal of telephone warrants and the means to get one pretty much anywhere, whether from the cruiser on the way to the hospital or while the driver is cuffed to the gurney with nurse hovering above, needle in hand.  Tech saved us from the rule, if not the needle.

The Court resorted to the dreaded totality of the circumstances test, where the person who tells the first best story gets whatever he wants.  A warrant is required, Judge Sotomayor explained, unless it was unreasonable to get one under the totality of the circumstances.  So they either get a warrant or, say if a judge isn’t around to sign off on one, they get to do it anyway.  The Fourth Amendment lives.

The core of the prosecution’s argument in McNeely was that the evidence of guilt, the alcohol in the bloodstream that would give them a number to conclusively prove guilt, would be destroyed over time.  The loss of BAC (blood alcohol content) was stated to be between .02% and .015% per hour based on the gender, weight and alcohol experience of the person.  While drunk driving isn’t an area of my expertise, my understanding is that it doesn’t exactly work that way, and in fact the BAC may increase for a period of time, even up to six hours, from when the last drink was had. The decision mentioned nothing about this, and suggests (again) that the Supreme Court specialists were more expert in arguing than drunk driving.  Any DUI experts out there should put in their two cents on this point.

The problem is that a driver may have, in fact, had a lower BAC at the time he was driving than at the time the blood was drawn.  If a guy downs a dozen shots in an hour, hops into his Chevy, takes off and is stopped minutes later, his BAC at the time he’s stopped may well be below the legal limit, while a few hours later, after warrant is obtained or the cops come up with a good enough story to justify their failure to get one, his BAC will be sky high.

There was no good to come of this case no matter what. There is no suggestion that the Court had any qualms about the forced use of needles stuck under the skin, into the bodies, of people for the purpose of collecting evidence to convict them.  While they didn’t quite make light of it, they also noted that blood draws are so routine and painless that it’s not a big enough deal to break a sweat over.  

The language offers some hope that the majority won’t be as sanguine about blood draws by police at roadside, having noted what a good job trained hospital staff do taking blood as opposed to just anybody.  The question of whether cops trained to take blood on their own, strapping the defendant across the hood of the cruiser while sticking needles into them, will eventually reach the court, and hopefully this language reflects a reluctance to let just anybody do it.  It also bodes well for the use of forced catheterization, which will likely make for a very awkward statement of facts some day.

But the bottom line is that the use of blood draws for the sole purpose of obtaining evidence of drunk driving will continue unabated.  The police will be required to get a warrant unless they can’t, but either way the needle goes in and the blood gets drawn.  In the absence of a warrant, the defense can move to suppress and test whether the cop’s story is good enough, but the totality of the circumstances test will control, with the determining factor being the reasonableness of the officer’s belief that he could not obtain a warrant within a reasonable period of time.  Don’t hate the double “reasonable.” 

Of course, if you don’t like the way this decision went, there is always the alternative of not driving drunk. Of the many tests that can be done to prove guilt, the blood draw can also prove that an individual’s BAC was below the legal limit. Then the cop is reduced to the usual descriptions and worthless field sobriety test, like the old days.  But with the evidence of a BAC below the legal limit on the defendant’s side, the test could go something like this: