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Warrantless blood draws in Washington State DUI investigations after McNeely

Blood draws pursuant to DUI investigations are a 4th Amendment intrusion, and the resulting evidence is inadmissible unless the government obtained a warrant or an exception to the warrant requirement applies. So ruled the United States Supreme Court in Missouri v. McNeely:

"The Fourth Amendment provides in relevant part that 'the 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 stall issue, but upon probable cause.' Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g. United States v. Robinson, 414 U.S. 218, 224 (1973). That principle applies to the type of search at interest in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 760 (1985)."

In McNeely, the defendant was arrested on suspicion of DUI, and indicated to the arresting officer that he would refuse an evidentiary breath test. The officer transported McNeely directly to a hospital for a blood draw, and McNeely again indicated that he would not voluntarily offer a blood sample. At that point the officer directed hospital employees to go ahead with the blood draw. The trial court suppressed the result of the ensuing blood alcohol analysis, finding that there were no exigencies that would prevent the officer from obtaining a search warrant prior to drawing the blood against McNeely's will. The Missouri state court upheld the suppression, and the prosecutors appealed to the Supreme Court. 

At the Supreme Court, the prosecutors argued that the fleeting nature of blood alcohol evidence is such that an exigent circumstance (warrant exception) applies to every DUI investigation and warrants were not necessary. The court, in a well-written opinion by Justice Sotomayor, rejected the argument in favor of the previously existing case by case exigency analysis. The trial court, Missouri Supreme Court, and SCOTUS all agreed that there was no evidence in the record establishing that McNeely's was anything other than a run of the mill DUI investigation; indeed, the arresting officer testified that a prosecutor and magistrate judge are generally available at all hours to process warrant requests, and he had no reason to believe they were not available on the night of McNeely's arrest. Rather, he believed one was not necessary.  

How does McNeely Affect Implied Consent Blood Draws in Washington State? 

In my opinion, there is at least a good-faith argument that McNeely created a paradigm change for blood draws in DUI investigations in Washington State. Under the State's Implied Consent statute, driver's are deemed to have consented to be tested for intoxicators by virtue of driving. Under the law, that consent may be withdrawn by drivers, but they stand a very real likelihood of having their license to drive suspended as a result of a refusal. 

In Washington, a DUI investigation may lead to a warrantless blood draw when the subject is unable to provide a breath test, when the driver is under arrest for vehicular assault or homicide, or as part of a 12-part Drug Recognition Examination conducted because the officer has probable cause to suspect the driver is under the influence of intoxicants other than alcohol. McNeely likely invalidates that portion of Washington's DUI law that authorizes a warrantless blood draw in all situations involving arrest for vehicular homicide or assault in favor of a case by case analysis.

Another important concern arises in light of I-502, which legalized possession of less than one ounce of cannabis, and also created a per se impairment blood quantum of active THC (one of many psychoactive compounds commonly found in cannabis). Courts will need to address the question of whether a driver who consents to blood draw during a "green DUI" or other substance-impaired driving investigation has actually given effective consent, because his privilege to drive is at stake under the state's implied consent law. 

McNeely highlights the increased constitutional expectations of privacy at play when contemplating bodily invasions such as those that occur when an agent of the government penetrates a criminal suspect's skin to withdraw blood and procure evidence against the suspect. I anticipate prosecutors will argue that the State's Implied Consent statute constitutes a consent exception to the Fourth Amendment protections against privacy invasions. However, the relinquishment of a recognized constitutional right as a condition to the continued enjoyment of a privilege (such as driving) has been seen as problematic before: 

As a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose.  But the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.  If the state may compel the surrender of one constitutional right as a condition in its favor, it may, in like manner, compel a surrender of all.  It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

Frost v. Railroad Commission, 271 U.S. 583, 593-94 (1926)

The Court in McNeely did refer to implied consent law and seems to presume the constitutionality of the laws, but in the context of "green" DUIs, the issue of implied consent blood draws is an issue that must be explored by the courts. After all, absent true exigent circumstances to be determined on a case by case basis, there really is no practical obstruction to obtaining a warrant before requiring an individual to provide blood to the state to satisfy its curiosity. 

This is an ongoing issue of widespread importance, and I will keep my blog updated regarding any developments. In the meantime, if you or someone you care about is looking for a lawyer to defend a cannabis-related or other DUI, I happily provide free consultations by phone or in person. 

Sean Cecil

Dedicated to providing personal service in pursuit of best possible outcomes for all my clients.



Posted Jan 15, 2014 at 06:22:27

The problem I see is Washington legalizes MJ and now make it so the police have to get a warrant for blood draw? Is that crazy or what? Is there a breath test for marijuana? I don’t want my family on the road with those smoking weed and driving or alcohol. I have had relatives and friends killed by DUI drivers not only alcohol but drugs.


Posted Feb 25, 2014 at 19:58:13

Kevin the warrant requirement for blood draws comes from the United States Supreme Court, not Washington courts. Of course, nobody wants people driving impaired, it is dangerous!


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