Yesterday the U.S. Supreme Court confronted a case that questioned whether or not a warrant is required to force DWI blood draws. Many newspapers are incorrectly reporting that a warrant is now required all the time. This is not the case. In 1966, the court recognized in Schmerber v. California that the percentage of alcohol in the blood begins to diminish shortly after drinking stops as the body functions to eliminate it from the system. In Schmerber, time had to be taken to bring the accused to a hospital and to investigate the scene of the accident (within 2 hours of the accident); there was no time to seek out a magistrate and secure a warrant. Given these facts, the court concluded the attempt to secure evidence of blood-alcohol content was an appropriate incident to arrest.
In the case resulting in yesterday's decision, Missouri v. McNeely
, slip opinion No. 11–1425, the officer forced blood within about 25 minutes of stopping the vehicle; there was sufficient time to obtain a warrant. ‟Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” ‟Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.” ‟[T]he fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search—critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police—although they may not be able to do anything about it right away—may still be able to respond to the ongoing destruction of evidence later on. There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge’s signature to a warrant.” Citations omitted