Missouri v. McNeely

The United States Supreme Court faces questions that cover the entire spectrum of legal issues, so it’s not often they publish a holding bearing directly on DUI law. But that’s exactly what they did in April when Missouri v. McNeely was decided.

Tyler McNeely had been stopped by Missouri police on the allegation that he was speeding and had crossed the center line. He declined to take a breath test, was arrested, and taken to a hospital for a blood draw. The officer did not obtain a warrant for McNeely’s blood, nor did he even attempt to get one. McNeeley did not consent to the blood draw, in fact when he was asked he refused to give his consent. Nevertheless, a sample was taken which showed a BAC of 0.154 (well above the legal limit of 0.08 in Montana and Missouri). He was charged with DUI under Missouri law.

McNeely challenged the results of the blood draw, arguing that they were taken in violation of the constitution (specifically his Fourth Amendment rights) and should therefore be suppressed under the exclusionary rule. The trial court agreed, finding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The Missouri Supreme Court affirmed that decision.

The issue, as framed by the U.S. Supreme Court, was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. Justice Sotomayor, writing for the majority, held that exigency in this context must be determined case by case based on the totality of the circumstances.

There are a few main facts which are vital to understanding this decision: 1) McNeely’s blood was taken against his will; 2) McNeely’s blood was taken without a warrant; 3) The only justification offered for not obtaining the warrant was that any alcohol in McNeely’s blood was dissipating with his natural metabolic processes.

The Fourth Amendment to the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” However, there are also a limited number of legally recognized exceptions to the warrant requirement. This means that if the police are going to search you or seize your property (including your blood) they must either obtain a warrant or an exception to the warrant requirement must exist. In McNeely’s case, it was undisputed that no warrant had been obtained or even requested. So, did an exception apply?

Remember, the only warrant exception the police claimed in McNeely’s case was that the alcohol was dissipating from his blood over time. This, the police thought, fit the warrant exception known as exigent circumstances. That exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. The Supreme Court offered examples such as a situation where the police engage in “hot pursuit” of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause. They all share the common fact that there was a compelling need for official action and no time to secure a warrant.

The police argued that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. Here, the police are saying that because BAC rates go down over time, there is always an emergency. The Supreme Court disagreed, but on a specific point: the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The decision essentially said you need something more. In McNeely’s case, the police only relied on the fact that alcohol dissipates in the blood. They didn’t even try to obtain a warrant. They didn’t even try to justify not obtaining a warrant. They just executed a warrantless seizure of McNeely’s blood. Going forward, this is forbidden. Exactly how hard the police have to try to obtain the warrant, and exactly what kind of justification for not obtaining a warrant will be accepted are questions for another day. But for now, the police need something more.

State v. Giacomini

A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.