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DUI Defenders Pick Your Poison: Probable Cause or Plea Bargain

By Robyn Hagan Cain on April 17, 2013 | Last updated on March 21, 2019

In September, the Supreme Court agreed to address whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

We say address, rather than decide, because the split opinions the Court issued today don’t quite make for a clear-cut decision that will help DUI defense attorneys.

The facts of this case probably sound like something you've seen in your DUI practice. A Missouri police officer stopped Tyler McNeely for speeding and swerving. After performing poorly on the field sobriety test, McNeely refused the Breathalyzer.

The officer arrested him and transported him to a hospital for a blood alcohol concentration (BAC) test, sans warrant. McNeely refused to consent, but the cop directed the hospital to draw his blood anyway. McNeely was charged with DUI based on the blood test.

McNeely moved to suppress the test, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court and the Missouri Supreme Court agreed that the exigency exception to the warrant requirement did not apply because -- apart from the fact that McNeely's blood alcohol was dissipating -- the circumstances did not suggest that the officer faced an emergency.

The Supreme Court affirmed that decision this week.

This isn't one of those straightforward decisions, with a flashcard-worthy holding. Here, the summary simply says, "The judgment is affirmed."

In the parts of her opinion that count as the majority opinion -- that would be Parts I, II-A, II-B, and IV, to give you an idea of how fractured this is -- Justice Sonia Sotomayor wrote that the Court had concluded that the natural metabolization of alcohol in the bloodstream doesn't qualify as a Fourth Amendment exigency; instead, "exigency in this context must be determined case by case based on the totality of the circumstances."

For practical purposes, SCOTUSblog's Lyle Denniston suggests that sensible cops will start getting warrants by default, instead of trying to make sense of the Court's multiple opinions in the matter:

None of the Court's four opinions ... said that officers investigating drunk-driving cases must always get a warrant. But the majority did say that the Constitution does not allow police to get a blood sample without ever having to get a warrant, in any case ... So that sets up the case-by-case approach, suggesting that getting a warrant very likely would remove the doubt.

If the tide turns to officers automatically obtaining warrants for blood tests, DUI defense will likely turn on attacking probable cause for a warrant. But that can be difficult. "The suspect was slurring, stumbling, and smelled of alcohol" sounds like probable cause to get a blood test.

Considering how tough it is to beat a blood test, an increase in blood test warrants will most likely mean a corresponding increase in DUI pleas.

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