Judge Suppresses Warrantless Blood Test


Court rejects warrantless blood tests in drunk driving casesIf you are arrested for a Michigan drunk driving offense, the police will request that you submit to a breath, blood or urine test to determine the level of alcohol in your body.  Under Michigan law, you have given your implied consent to submit to this type of chemical testing if the officer has probable cause to believe that you are under the influence of alcohol or a controlled substance.  If you fail to submit the testing, six points will be added to your license, and your driver's license will be suspended.  You are entitled to a hearing to determine whether the officer complied with the law before any points or a suspension is imposed for a chemical test refusal.

The US Constitution’s Fourth Amendment applies to breath, blood and urine testing, so police are required to obtain a search warrant unless one of the clearly established exception to the search warrant requirement can be established by the police and prosecution.  Implied consent is not actual consent, however, so a suspected drunk driver must agree to the chemical test or else the police must seek a search warrant.  Submitting to the breath, blood or urine test does not preclude a Fourth Amendment challenge since the prosecutor has the burden of proving that consent was freely and voluntarily given without threats or coercion. Under current Michigan implied consent laws, police officers frequently explain chemical test rights to the motorist.  In addition to reading the implied consent warnings, officers are tempted to tell a motorist that he or she must submit or else.  For example, "the judge will go harder on you if you make me wake her up," or "you have to take this test or else we are going to lock you up for at least 24 hours." These are unlawful threats that reduce consent to mere submission to claimed lawful authority.

The unlawful nature of some of these threats and coercion became apparent with a recent US Supreme Court case that looked to another exception to the search warrant requirement: Exigent circumstances. "Exigent circumstances" is legalese for "emergency circumstances," and it is another exception to the search warrant requirement that may permit a warrantless search.  A police officer might grab an item from a suspect that he or she is trying to destroy, for example, or police may suspect that a package contains a bomb.  Under certain limited circumstances, it may be possible for the police to compel a blood test without a warrant, and prosecutors have encouraged the courts to permit warrantless blood draws because alcohol levels may dissipate before a search warrant may be obtained.  The US Supreme Court recently addressed this argument in Missouri v. McNeely, rejecting the State of Missouri's argument in favor of warrantless blood draws.

In a decision out of Texas, State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649 (Tex.App.—Tyler 2013), the trial court held that sufficient exigent circumstances supported a blood draw over the suspect's refusal, but, as in McNeely, the only exigency argued by the government was rapid dissipation of alcohol content from the blood.  On appeal, the court reversed, holding that:

In analyzing the facts of this case, the court acknowledged that the taking of a blood sample is a search and seizure under both the federal and Texas constitutions. However, under certain circumstances, a blood sample taken without a warrant is not an unreasonable search and seizure, and therefore comports with constitutional requirements. Police officers may constitutionally obtain a blood sample without a warrant or consent if they have probable cause, exigent circumstances, and a reasonable method of extraction. The dispute in this case revolves around one specific factor; whether there were exigent circumstances.

The State contends simply that the warrantless taking of the blood specimen was permissible because exigent circumstances existed at the time of the blood draw, namely, the fact that alcohol dissipates rapidly from the bloodstream. The court acknowledged that McNeely allowed warrantless blood draws provided there was evidence of exigent circumstances but held, according to McNeely, that because there was no specific evidence of exigent circumstances in this case, such as evidence that it would take too long to procure a warrant under these circumstances the State failed to show that the warrantless blood draw was supported by exigent circumstances.

The language in McNeely is powerful stuff, and it has also been used to strike breath tests in California when officers told an arrested DUI suspect that he was "required" to submit to the breath test.  In California v Sorrentino (Sup. Ct. Santa Barbara Case No. 1440945, Decided March 10, 2014), the Court opined that, "'Where the circumstances indicate that a suspect consents because he believes resistance to be futile, or if any suggestion is made to the suspect that it would be unwise or fruitless to resist, the search cannot stand.  Thus an apparent consent has been deemed involuntary when given in response to covert threats of official sanction. People v Valenzuela, 28 Cal.App.4th 817, 832-833 (1994)' This is because '[c]onsent that is the product of official intimidation or harrassment is not consent at all. Florida v Bostick, 501 US 429, 438 (1991).'"

No Michigan court decisions have been decided that apply McNeely since the decision was handed down by the US Supreme Court.