Law Review: Drive Drunk? Prepare for a Prick
The procurement of a blood sample from an individual suspected of driving while under the influence of an intoxicating agent is critical to the investigation and prosecution of drunk and drugged driving cases. However, obtaining blood samples involuntarily from defendants is a complicated matter that touches upon contentious Constitutional issues. Accordingly, the current precedent set by the U.S. Supreme Court has established that a court-authorized warrant is generally required to draw blood from a DUI defendant who is unwilling to provide a blood sample voluntarily.
Previously, in 1966, the U.S. Supreme Court ruled that warrantless, involuntary blood tests on DUI defendants were not considered to be infringements upon the Fourth Amendment’s protections against unlawful searches and seizures. In the case, a drunken driver crashed his car, injuring both himself and a passenger in his car. The Court posited that due to the fact that alcohol and drugs dissipate from an individual’s bloodstream as time elapses, the need to obtain an accurate blood sample in an expedient fashion could be inhibited by the process of drafting and obtaining a warrant. Accordingly, the Court ruled that due to the evanescent nature of the evidence and in light of the delay that would be caused by the procurement of a warrant, the nature of the situation “threatened the destruction of evidence,” and therefore, the officer was justified in ordering the blood test without a warrant due to the foregoing exigent circumstances. See Schmerber v. Cal., 384 U.S. 757 (1966); see also Breithaupt v. Abram, 352 U.S. 432 (1957); Kentucky v. King, 131 S. Ct. at 1856; Mincey v. Arizona, 437 U.S, 385, 394 (1978).
However, in 2013, case law was overturned in these respects, largely due to advancements in technology allowing for warrants to be remotely drafted, processed and approved. The U.S. Supreme Court rejected the notion that the metabolization of alcohol and drugs in the bloodstream constitutes a blanket exigent exemption in all drunk driving cases, and ruled that a DUI defendant’s Fourth Amendment rights were violated when after the defendant declined a breathalyzer test, he was then forcibly subjected to a blood draw shortly thereafter at a hospital, and the search and seizure vis-à-vis the blood test was unlawful. Noting technological advancements such as email, video-chat and mobile phone calls, the Court held that officers must obtain a warrant prior to conducting involuntary blood tests on drunk driving defendants. In the majority opinion, the Court noted the importance of considering the “totality of the circumstances” with respect to assessing whether a given scenario constitutes an exigency, writing that “the natural dissipation of alcohol in the bloodstream [in DUI investigations] does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” See e.g. Missouri v. McNeely, 569 U.S. 141 (2013)
On the flip side, the Supreme Court distinguished between invasive blood testing and non-invasive breath tests, noting that the latter may be administered prior to an arrest and without a warrant, whereas absent extreme exigencies, invasive blood testing to detect the presence of intoxicants in a defendant’s bloodstream may only be conducted if a warrant is issued. Nevertheless, generally speaking, a judicially-approved search warrant is required to draw a defendant’s blood in a drunk driving case. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).
Additionally, all 50 states have “implied consent” laws on the books with respect to DUI chemical testing. As a condition of operating a motor vehicle within a given state, under implied consent laws, motorists are required to submit to breath, saliva and/or urine testing upon a police officer’s reasonable request, or face a civil penalty –– often a license suspension or monetary fine. Supreme Court jurisprudence has noted that only civil –– not criminal –– penalties may be imposed for failing to submit to a warrantless chemical test under implied consent laws. However, researchers have found that intoxicated individuals often opt to have their licenses suspended and/or pay a monetary fine in lieu of taking a chemical test and ostensibly generating incriminating evidence of impairment thereof. Therefore, at the end of the day, absent a motorist’s consent in an effort to avoid limited civil penalties, generally speaking, blood samples may only be taken involuntarily from motorists via the issuance of a judicially-approved search warrant. Federal courts have consistently noted in dicta that warrants for the procurement of corporeal evidence via invasive procedures (e.g. blood tests) should generally be limited to cases in which the acquisition of such evidence is critical to the investigation and prosecution of a serious criminal matter. See Birchfield v. North Dakota, supra; see also Rochin v. California, 342 U.S. 165 (1952).
As the legalization of recreational marijuana spreads from state to state across the nation, this matter is being brought to the forefront of the policy debate. Conventional breathalyzers are not capable of determining the amount of drugs within an individual's bloodstream, which necessitates a wider-spread use of blood tests to determine how much marijuana a motorist has consumed. Accordingly, in the coming months, as New York and New Jersey lawmakers grapple with the notion of marijuana legalization, this issue will be especially contentious.