On January 9, 2013, the United States Supreme Court heard oral arguments in Missouri v. McNeely, a case in which a police officer ordered blood to be drawn from an individual suspected of drunk driving. The officer ordered the blood draw without a warrant after McNeely refused a breath test. The issue before the United States Supreme Court is whether the nature of blood alcohol evidence, specifically the inevitable but gradual destruction of this evidence over time, justifies a per se exception to the warrant requirement that would allow police officers to obtain warrantless, nonconsensual blood draws from all individuals suspected of driving under the influence.
During the oral argument, the advocates of a per se rule (the State of Missouri and the United States, as amicus curiae), were questioned extensively about the need for a per se rule when an increasing number of jurisdictions are taking steps to expedite the warrant process, reducing the extent to which evidence is lost during the time necessary to obtain a warrant. Reviewing the questions of the Justices at oral argument, it appears likely that the Court will decline to establish a per se rule, and instead apply the standard totality of the circumstances test. This result would require that the exigency of the circumstances be determined on the specific facts of each case involving a warrantless, nonconsensual test for alcohol or other chemical impairment.
If this prediction is correct, it has definite ramifications for the state of DWI law in Minnesota. Minnesota recognizes the nature of blood alcohol evidence, particularly the fact that this evidence dissipates at a steady rate, as a single-factor exigency sufficient to justify a police-ordered blood draw from a DWI suspect without a warrant. State v. Shriner, 751 N.W.2d 538 (Minn. 2008). This single-factor exigency is also the rationale that the Minnesota Supreme Court has used to uphold Minnesota’s test refusal law (Minn. Stat. 169A.20, Subd. 2) over a constitutional challenge. State v. Netland, 762 N.W.2d 202 (Minn. 2009). Both police practices for gathering evidence from drivers and the Minnesota law criminalizing test refusal may be subject to change, depending on the United States Supreme Court’s ruling in Missouri v. McNeely, making this a case to watch this spring.