Record and brief — Missouri v. McNeely
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DOCKET
‘Ng SUPREME COURT
“mes” OF THE UNITED STATES
No. 11-1425
Title Missouri, Petitioner
Vv
Tyler G. McNeely
Docketed May 25, 2012
Lower Ct: Supreme Court of Missour\
Case Nos. (SC 91850)
Decision Date January 17, 2012
Rehearing Denied: March 6, 2012
Questions
Presented
~~~Date~~~ ~~~~~~~ Proceedings and Orders
May 22 2012 Petition for a writ of certiorari filed. (Response due June 25. 2012)
Jun 82012 Order extending time to file response to petition to and including July 25. 2012
Jul 252012 Brief of respondent Tyler G. McNeely in opposition filed.
Aug 82012 DISTRIBUTED for Conference of September 24, 2012
Aug 14 2012 Reply of petitioner Missouri filed. (Distributed)
Sep 25 2012 Petition GRANTED
Oct 31 2012 SET FOR ARGUMENT ON Wednesday. January 9, 2013
Nov 52012 Consent to the filing of amicus curiae briefs. in support of either party or of neither party
received from counsel! for the respondent.
Nov92012 Joint appendix filed (Statement of costs received)
Nov92012 Brief of petitioner Missouri filed.
Nov 13 2012 Consent to the filing of amicus curiae briefs. in support of either party or of neither party
received from counsel! for the petitioner.
Nov 16 2012 CIRCULATED
Nov 16 2012 Brief amicus curiae of Mothers Against Drunk Driving filed (Distributed)
Nov 16 2012 Brief amici curiae of Nationa! District Attorneys Association. et al. filed (Distributed)
Nov 16 2012 Brief amici curiae of Delaware. et al filed (Distributed)
Nov 16 2012 Brief amicus curiae of the United States filed. (Distributed)
Dec 10 2012 Brief of respondent Tyler G. McNeely filed. (Distributed)
Dec 10 2012 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae
and for divided argument filed
Dec 14 2012 Brief amicus curiae of Rutherford Institute filed. (Distributed)
Dec 17 2012 Brief amici curiae of Law Professors filed. (Distributed)
Dec 17 2012 Brief amici curiae of Nationa! College for DU! Defense. et al. filed (Distriputed)
Dec 20 2012 Record received from The Supreme Court State of Missour|. (1 Box)
Jan2 2013 Reply of petitioner Missouri filed (Distributed)
Jan 42013 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae
and for divided argument GRANTED
Jan92013 Argued For petitioner Jonn N. Koester. Jr.. Assistant Prosecuting Attorney Jackson
Mo.. and Nicole A. Saharsky. Assistant to the Solicitor General, Department of Justice
Washington. D. C. (for United States, as amicus curiae.) For respondent Steven R
Shapiro. New York, N Y
PETITION
FOR
WRIT OF
CERTIORARI
"Yj
ct}
i}
eae > F- e
3n The
Supreme Court of the Anited States
o
STATE OF MISSOURI,
Petitioner,
Vv.
TYLER G. McNEELY,
Respondent.
*
On Petition For A Writ Of Certiorari
To The Missouri Supreme Court
°
PETITION FORA WRIT OF CERTIORARI
¢
OFFICE OF THE PROSECUTING ATTORNEY
CAPE GIRARDEAU COUNTY, MISSOURI
H. MORLEY SWINGLE, Prosecuting Attorney
JOHN N. KOESTER, JR., Counsel of Record
Assistant Prosecuting Attorney
100 Court Street, Suite 204
Jackson, MO 63755
(573) 243-2430
jnkoester@capecounty.us
Attorneys for Petitioner
State of Missourt
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTION PRESENTED
Whether a law enforcement officer may obtain a
nonconsensual and warrantless blood sample from a
drunk driver under the exigent circumstances excep-
tion to the Fourth Amendment warrant requirement
based upon the natural dissipation of alcohol in the
bloodstream.
A
TABLE OF CONTENTS
Page
QUESTION PRESENTED....................cccseseeceeeeees i
TABLE OF AUTHORITIES ...................ssecccseeeees: iv
EE CTT cicirensiniiscenrnsssncncnnniscemnimentadinaalals 1
Fe iniviniiinnisninniiidunitasaeibainiieapiannnia 1
CONSTITUTIONAL PROVISION INVOLVED...... 2
STATEMENT OF THE CASE...................:.000020008 2
REASONS FOR GRANTING THE PETITION..... 11
I. The Decision Of The Missouri Supreme
Court Creates A Further Division Among
State Courts Of Last Resort And Con-
flicts With The Federal Circuits................ 1l
A. Courts holding that the natural dis-
sipation of alcohol in the bloodstream
is sufficient to create exigent circum-
stances justifying a warrantless blood
draw under Schmerber ..................0..0+- 15
B. Courts holding that Schmerber re-
quires additional “special facts” other
than the natural dissipation of alco-
hol in the bloodstream to create
exigent circumstances justifying a
warrantless blood draw....................... 26
C. The decision of the Missouri Supreme
Court has deepened the division
among state courts of last resort .......... 31
TABLE OF CONTENTS -— Continued
Page
II. The Missouri Supreme Court Misinter-
preted This Court’s Decision In
Schmerber v. California, 384 U.S. 757
(1966) And Improperly Applied The
III ociccnnccsvesvonssnnusvosseenieces 32
A. The Missouri Supreme Court misin-
terproted Schmer ber .........ccccscecescsscceses 32
B. It is objectively reasonable for a law
enforcement officer to obtain a war-
rantless blood test from a drunk driver
because of the imminent destruction of
CERISE ESE Ten ee ee 35
Ill. The Question Presented Is Of Substan-
tial And Recurring Importance ................. 39
I a rretiaemnenninenen 40
APPENDIX
Missouri Supreme Court opinion (January 17,
IITs tli iin ccnaidetdieetincridiinioeemeapueneeeenninetenseneenNanTeseeS la
Missouri Court of Appeals opinion (June 21,
ESS ne ee 23a
Trial court order and judgment (March 3, 2011).....39a
Missouri Supreme Court order denying rehear-
I i crncinmniiciicninnnnnanntd 47a
iv
TABLE OF AUTHORITIES
Page
CASES:
Breithaupt v. Abram, 352 U.S. 432 (1957).....34, 35, 37
Brigham City v. Stuart, 547 U.S#B98 (2006).......35, 36
Katz v. United States, 389 U.S. 347 (1967)................ 35
Kentucky v. King, 131 S.Ct. 1849 (2011).............. 14, 36
Michigan Dept. of State Police v. Sitz, 496 U.S.
I icecnsicieiieelitiinsncatitsietdaliaadlintalshediiuaiiati eatin 40
Mincey v. Arizona, 437 U.S. 385 (1978)..................... 36
People v. Thompson, 135 P.3d 3 (Cal. 2006) .............. 23
Schmerber v. California, 385 U.S. 757 (1966) .... passim
Skinner v. Railway Labor Executives’ Ass’n, 489
5 TRIOS EREooeree rer 21, 25, 37, 38
South Dakota v. Neville, 459 U.S. 553 (1983)............ 35
State v. Baker, 502 A.2d 489 (Me. 1985).................... 23
State v. Bohling, 494 N.W.2d 399 (Wis.
Tt hascicecmaianitnpeansbtintaiuaniniecliaivmnemeiinid 10, 15, 16, 29
State v. Cocio, 709 P.2d 1336 (Ariz. 1985)............ 23, 38
State v. Entrekin, 47 P.3d 336 (Hawai'i 2002)........... 23
State v. Faust, 682 N.W.2d 371 (Wis. 2004).....8, 16, 17
State v. Hoover, 916 N.E.2d 1056 (Ohio 2009) ....22, 23
State v. Johnson, 744 N.W.2d 340 (Iowa
Renee ene ee a ne enna eNO 11, 29, 30, 31
BE srcsvisstinsscmnatinminannasiinenpinaanininiiasanins 11, 19, 20, 38
Vv
TABLE OF AUTHORITIES — Continued
Page
State v. Milligan, 748 P.2d 130 (Or. 1988).....11, 18, 19
State v. Netland, 762 N.W.2d 202 (Minn. 2009).....10, 22
State v. Oliver, 293 S.W.3d 437 (Mo.banc 2009).......... 6
State v. Rodriguez, 156 P.3d 771 (Utah 2007) ... passim
State v. Shriner, 751 N.W.2d 538 (Minn.
aaa a a es 10, 20, 21, 22
State v. Woolery, 775 P.2d 1210 (Idaho 1985)............ 23
United States v. Berry, 866 F.2d 887 (6th Cir.
Rae ae eee ate Moy NREL 8, 23, 24
United States v. Chapel, 55 F.3d 1416 (9th Cir.
EATS ats Se RSE RIE Res OE SRS AST ee 31
United States v. Dionisio, 410 U.S. 1 (1973).............. 14
United States v. Eagle, 498 F.3d 885 (8th Cir.
REELS Se RES ACA Nees A ce 24
United States v. Prouse, 945 F.2d 1017 (8th Cir.
ESSERE aS eee SIN tre eens MAS e eR NEE ERE 24
United States v. Reid, 929 F.2d 990 (4th Cir.
AR ee RUN IE DE eae eS 25, 26
United States v. Santana, 427 U.S. 38 (1976)........... 36
Winston v. Lee, 470 U.S. 753 (1985)............... 14, 34, 37
CONSTITUTIONAL PROVISIONS:
Ss SEN, HUI, FID siniicicicienennietmnenneeiiensiiieinannsnte passim
I 5
vi
TABLE OF AUTHORITIES — Continued
Page
STATUTES:
Mo. Rev. Stat. § 558.011 (Cum.Supp.2010).................. 5
Mo. Rev. Stat. § 577.010 (2000)..............-cccceeesseeeeeeeeeees 5
Mo. Rev. Stat. § 577.023 (Cum.Supp.2010) ................. 5
Mo. Rev. Stat. § 577.041.1 (Cum.Supp.2009) .............. 4
Mo. Rev. Stat. § 577.041.1 (Cum.Supp.2010) .............. 4
OTHER SOURCES:
3 W. LaFave, Search and Seizure, (4th ed.
1
PETITION FOR A WRIT OF CERTIORARI
The State of Missouri respectfully petitions for a
writ of certiorari to review the judgment of the Mis-
souri Supreme Court in this case.
«
OPINIONS BELOW
The opinion of the Missouri Supreme Court is
reported as State v. McNeely, 358 S.W.3d 65 (Mo.banc
2012), and can be found in the Appendix (hereinafter
“App.”), infra, la-22a. The order of the Missouri
Supreme Court denying rehearing is not reported.
App., infra, 47a-48a. The opinion of the Missouri
Court of Appeals is not reported, but can be found at
2011 WL 2455571 (Mo.App. E.D.). App., infra, 23a-
38a. The judgment of the trial court granting Re-
spondent’s motion to suppress evidence can be found
in the Appendix. App., infra, 39a-46a.
Sf
JURISDICTION
The Missouri Supreme Court entered its judg-
ment on January 17, 2012. The Court denied peti-
tioner’s motion for rehearing on March 6, 2012. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a).
2
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States
Constitution provides:
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 shall issue,
but upon probable cause, supported by Oath
or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.
=)
STATEMENT OF THE CASE
Respondent filed a pretrial motion to suppress
evidence, seeking to exclude the results of a blood
sample taken after his arrest for driving while intoxi-
cated. The trial court granted the motion to suppress,
holding that the blood sample was obtained in viola-
tion of Respondent’s Fourth Amendment rights. App.,
infra, 39a-46a. Petitioner filed an interlocutory
appeal. The Missouri Court of Appeals, Eastern
District, reversed the ruling of the trial court. App.,
infra, 23a-38a. The Court of Appeals subsequently
transferred the case to the Missouri Supreme Court,
citing the general importance of the issue. Jd. The
Missouri Supreme Court affirmed the ruling of the
trial court, holding that Respondent's Fourth
Amendment rights were violated. App., infra, la-22a.
Petitioner filed a motion for rehearing, which was
denied. App., infra, 47a-48a.
A. Facts
On October 3, 2010, at approximately 2:08 A.M.,
Respondent was pulled over by a Missouri state
highway patrolman for exceeding the speed limit.
App., infra, 4a, 24a, 39a-40a. The patrolman noticed
that Respondent displayed signs of intoxication,
including bloodshot eyes, slurred speech, and the odor
of alcohol on his breath. Jd. These observations
changed the nature of the patrolman’s investigation
from a routine traffic stop to a drunk-driving investi-
gation. Jd. When the patrolman asked Respondent to
step out of his truck, he observed that Respondent
was unsteady on his feet. The patrolman then admin-
istered a series of standard field-sobriety tests. After
performing poorly on all of the tests, Respondent was
placed under arrest for driving while intoxicated. Jd.
The patrolman secured Respondent in his patrol
car and began to transport him to the county jail.
While in the patrol car the patrolmian asked Re-
spondent if he would agree to voluntarily provide a
breath sample when they arrived at the jail. Re-
spondent told the patrolman that he would refuse to
provide a breath sample. App., infra, 4a-5a, 24a-25a,
39a-40a. The patrolman then decided to drive directly
to a nearby hospital in order to obtain a blood sample
to secure evidence of intoxication. Jd. At the hospital
the patrolman read an implied consent form to Re-
spondent and requested a blood sample. Respondent
refused to voluntarily consent to the blood test. Jd.
The patrolman then directed a hospital lab technician
to draw a blood sample, which was collected as
4
evidence at 2:33 A.M. Jd. Chemical analysis of the
blood sample later revealed that Respondent’s blood-
alcohol content was 0.154 percent, well above the
legal limit of .08 percent. Jd.
The patrolman did not attempt to obtain a search
warrant before directing the hospital lab technician
to draw the sample of Respondent’s blood.’ App.,
infra, 4a-5a, 40a. Obtaining a search warrant in the
middle of the night in Cape Girardeau County in-
volves a delay, on average, of approximately two
hours. (Record on Appeal: Tr. 26-27.) The generally
accepted rate of elimination of alcohol in the blood-
stream is between .015 and .020 percent per hour.
(Record on Appeal: Tr. 20-21.)
' Although the patrolman had obtained search warrants in
driving while intoxicated cases in the past, he did not attempt to
obtain one in this case because he had read an article during a
training session that stated a search warrant was no longer
necessary due to a recent statutory amendment to the “refusal”
provision of the Missouri implied consent law. App, infra, 4a-5a
n.2. Prior to the amendment, the statute provi that if a
person refused a chemical test, then “none shall be given.” Mo.
Rev. Stat. § 577.041.1 (Cum.Supp.2009). Effective on August 28,
2010, the phrase “none shell be given” was deleted from the
statute. § 577.041.1 (Cum.Supp.2010). App., infra, 34a-38a, 43a-
45a. Nonetheless, the Missouri Supreme Court found it unnec-
essary to address the issue of the statutory amendment because
it held the Fourth Amendment was violated. App., infra, 21a n.9.
5
B. Procedural History
1. Cape Girardeau County Circuit Court
Respondent was charged by Information with
driving while intoxicated in the Circuit Court of
Cape Girardeau County, Missouri, in violation of
Mo. Rev. Stat. § 577.010 (2000).* (Record on Appeal:
Legal File 8-9.) Respondent filed a pretrial motion to
suppress evidence, seeking to exclude the results of
the blood sample taken after his arrest. Respondent
claimed that the nonconsensual and warrantless
blood sample was obtained in violation of his Consti-
tutional right to be free from unreasonable searches
and seizures under the Fourth Amendment to the
United States Constitution.” (Record on Appeal:
Legal File p. 12.)
* Because Respondent had two prior convictions for driving
while intoxicated, he was charged with a class D felony under
Missouri law, which carries a maximum term of imprisonment
of four years. A first time offense for driving while intoxicated is
a class B misdemeanor, carrying a maximum punishment of
six months in jail. Mo. Rev. Stat. §§558.011, 577.023
(Cum.Supp.2010).
* Respondent also alleged his right to be free from unrea-
sonable searches and seizures under the Missouri Constitution
was violated. (V.A.M.S. Const. Art. I, § 15.) Although the courts
below did not mention the Missouri constitutional provision, it
should be noted that the Missouri Supreme Court has held that
Article I, Section 15, provides the exact same guarantees
against unreasonable searches and seizures as under the
Fourth Amendment, and thus, the same analysis applies to
cases under the Missouri Constitution as under the United
(Continued on following page)
6
The trial court granted Respondent’s motion to
suppress evidence, holding that the warrantless blood
draw violated the Fourth Amendment. App., infra,
39a-46a. Basing the ruling on its interpretation of
this Court’s decision in Schmerber v. California, 385
U.S. 757 (1966), the trial court held that the natural
dissipation of alcohol in the bloodstream does not
constitute a sufficient exigency to justify a warrant-
less blood draw in a routine driving while intoxicated
case. App., infra, 42a-43a. While acknowledging that
Schmerber upheld a nonconsensual and warrantless
blood draw in a drunk driving case against a Fourth
Amendment challenge, the trial court found that
Schmerber was limited to the “special facts” of that
case. Id.
The trial court maintained that Schmerber
requires the existence of additional “special facts,”
other than the dissipation of alcohol in the biood-
stream, before a warrantiess blood draw may be
justified. These “special facts” were identified by the
trial court as a motor vehicle accident resulting in
physical injuries requiring emergency medical treat-
ment. Because Respondent was not involved in an
accident, and because Respondent did not suffer
physical injuries requiring emergency medical treat-
ment, the trial court concluded that Schmerber did
not apply. The trial court stated:
States Constitution. See State v. Oliver, 293 S.W.3d 437, 442
(Mo.banc 2009).
7
The facts before this court are substantially
different than the facts of Schmerber. There
was no accident. There was no investigation
at the scene of the stop other than the field
sobriety tests, which took less than ten
minutes. The defendant was not injured and
did not require emergency medical treat-
ment. This was not an emergency, it was a
run of the mill driving while intoxicated
case. As in all cases involving intoxication,
the Defendant’s blood alcohol was being me-
tabolized by his liver. However, a prosecutor
was readily available to apply for a search
warrant and a judge was readily available to
issue a warrant. Schmerbder is not applicable
because the “special facts” of that case, the
facts which established exigent circumstanc-
es, did not exist in this case to justify the
warrantless search.
App., infra, 43a.
2. Missouri Court of Appeals, Eastern Dis-
trict
Petitioner filed an interlocutory appeal to the
Missouri Court of Appeals, Eastern District. The
Court of Appeals, in a unanimous 3-0 decision, issued
a written opinion reversing the ruling of the trial
court. App., infra, 23a-38a.
The Missouri Court of Appeals held that, in
applying the exigent circumstances exception to the
warrant requirement, “special facts” are not required
to justify a warrantless blood draw. Instead, the
8
evanescent nature of blood alcohol evidence creates
exigent circumstances such that no warrant is needed
to conduct the search. App., infra, 33a. In its analysis,
the Court of Appeals found the interpretation of
Schmerber from other jurisdictions to be persuasive,
including the Wisconsin Supreme Court in State v.
Faust, 682 N.W.2d 371 (Wis. 2004), and the Sixth
Circuit in United States v. Berry, 866 F.2d 887 (6th
Cir. 1989). App., infra, 29a-31a. The Missouri Court of
Appeals concluded:
We have no reason to require ‘special facts’ in
addition to the facts that the officer had am-
ple cause to reasonably believe Defendant
was under the influence of alcohol and that
Defendant’s blood alcohol concentration
would continue to decrease, thus destroying
evidence, the longer the police waited to con-
duct a blood test.
App., infra, 33a.
Citing the general interest and importance of the
issue, however, the Missouri Court of Appeals trans-
ferred the case to the Missouri Supreme Court. App.,
infra, 24a, 38a.
3. Missouri Supreme Court
The Missouri Supreme Court disagreed with the
Court of Appeals and affirmed the ruling of the trial
court in a per curiam opinion, holding that the non-
consensual and warrantless blood draw was a violation
9
of Respondent’s Fourth Amendment rights. App.,
infra, la-22a.
The Missouri Supreme Court held that
Schmerber was expressly limited to its facts, and,
noting that the patrolman was not confronted with
these same “special facts,” concluded that exigent
circumstances did not exist. App., infra, 2a-3a, 8a-
10a, 19a-2la. Explaining its rationale, the Court
stated:
The patr:'man here, however, was not faced
with the ‘special facts’ of Schmerber. Because
there was no accident to investigate and
there was no need to arrange for the medical
treatment of any occupants, there was no de-
lay that would threaten the destruction of
evidence before a warrant could be obtained.
Additionally, there was no evidence here that
the patrolman would have been unable to
obtain a warrant had he attempted to do so.
The sole special fact present in this case,
that blood-alcohol levels dissipate after
drinking ceases, is not a per se exigency pur-
suant to Schmerber justifying an officer to
order a blood test without obtaining a war-
rant from a neutral judge.
App., infra, 3a.
To support its view that Schmerber was limited
to its facts, the Missouri Supreme Court asserted that
Schmerber explicitly warned against expansive
interpretations. App., infra, 18a. The Court relied on
the following language in Schmerber:
10
It bears repeating, however, that we reach
this judgment only on the facts of the present
record. The integrity of an individual’s per-
son is a cherished value of our society. That
we today hold that the Constitution does not
forbid the States minor intrusions into an
individual’s body under stringently limited
conditions in no way indicates that it permits
more substantial intrusions, or intrusions
under other conditions.
Schmerber, 384 U.S. at 772. The Missouri Supreme
Court concluded that to allow a warrantless blood
draw in the absence of “special facts” would be to
ignore this Court’s cautious limitation on the holding
in Schmerber. App., infra, 19a.
In its analysis, the Missouri Supreme Court
acknowledged that a clear and increasing split of
authority has recently developed among other state
courts of last resort in their respective interpretations
of this Court’s decision in Schmerber. The Missouri
Supreme Court expressly disavowed the reasoning of
other jurisdictions previously holding that the rapid
dissipation of alcohol in the bloodstream constitutes a
sufficient exigency to draw blood without a warrant,
including the Wisconsin Supreme Court," the Minne-
sota Supreme Court,” and the Oregon Supreme
* State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v.
Faust, 682 N.W.2d 371 (Wis. 2004).
* State v. Shriner, 751 N.W.2d 538 (Minn. 2008); State v.
Netland, 762 N.W.2d 202 (Minn. 2009).
11
Court.* App., infra, 16a-19a. Ultimately, the Missouri
Supreme Court adopted the rationale of the Utah
Supreme Court in State v. Rodriguez, 156 P.3d 771
(Utah 2007), and the Iowa Supreme Court in State v.
Johnson, 744 N.W.2d 340 (Iowa 2008), where the
courts held that Schmerber requires “special facts”
beyond the natural dissipation of alcohol in the
bloodstream in order to justify a warrantless search.
App., infra, 10a-13a.
Petitioner filed a motion for rehearing, which
was overruled by the Missouri Supreme Court on
March 6, 2012. App., infra, 47a-48a.
¢
REASONS FOR GRANTING THE PETITION
I. The Decision Of The Missouri Supreme
Court Creates A Further Division Among
State Courts Of Last Resort And Conflicts
With The Federal Circuits
The ruling of the Missouri Supreme Court has
further deepened the division among state courts of
last resort on a fundamental Fourth Amendment
issue. The ruling also conflicts with decisions of the
Federal Circuits. The Missouri Supreme Court
acknowledged that a clear and increasing split of
authority has recently developed among state courts
* State v. Milligan, 748 P.2d 130 (Or. 1988); State v.
Machuca, 227 P.3d 729 (Or. 2010).
12
of last resort in their respective interpretations of this
Court’s decision in Schmerber. Some courts have
interpreted Schmerber broadly, holding that the
natural dissipation of alcohol in the bloodstream is
sufficient to create exigent circumstances justifying a
warrantless blood draw in drunk-driving related
crimes. Other courts have taken a narrow, more
restrictive view, essentially holding that Schmerber is
limited to its “special facts.” This emerging conflict on
a fundamental Fourth Amendment issue will likely
continue to divide courts throughout the United
States until this Court takes action to clarify the
holding in Schmerber.
Schmerber v. California, 384 U.S. 757 (1966)
In Schmerber, this Court considered whether a
nonconsensual and warrantless blood test taken from
a defendant suspected of driving while under the
influence of intoxicating liquor violated the Fourth
Amendment. There, defendant had been arrested at a
hospital while receiving treatment for injuries suf-
fered in an accident after his automobile skidded off
the road and struck a tree. Jd., at 758, 759 n.2. At the
direction of a police officer, a warrantless blood sam-
ple was withdrawn by a physician despite the fact
that defendant refused to consent to the test. Jd., at
758-759. Chemical analysis of the blood sample
revealed defendant was intoxicated. Jd. A report of
the analysis was admitted at trial over defendant’s
objection, resulting in a conviction for a misdemeanor
13
offense of driving under the influence of intoxicating
liquor. Jd., at 759 n.1.
On appeal, defendant claimed that the noncon-
sensual and warrantless blood withdrawal violated
his right to be free from unreasonable searches and
seizures under the Fourth Amendment. This Court
disagreed. Holding the warrantless blood test was a
reasonable search and seizure under the Fourth
Amendment, this Court first concluded that probable
cause existed to arrest the defendant for driving
under the influence of alcohol. Jd., at 768-769. Next,
this Court turned its attention to whether a search
warrant was required before taking the blood sample.
Concluding the warrantless search was reasonable,
this Court stated:
The officer in the present case, however,
might reasonably have believed that he was
confronted with an emergency, in which the
delay necessary to obtain a warrant, under
the circumstances, threatened ‘the destruc-
tion of evidence.’ We are told that the per-
centage of alcohol in the blood begins to
diminish shortly after drinking stops, as the
body functions to eliminate it from the sys-
tem. Particularly in a case such as this,
where time had to be taken to bring the ac
cused to the hospital and to investigate the
scene of the accident, there was no time to
seek out a magistrate and secure a warrant.
Given these special facts, we conclude that
14
the attempt to serure evidence of blood-
alcohol content in this case was an appropri-
ate incident to petitioner’s arrest.’
Id., at 770-771 [citation omitted}. This Court further
concluded that the test itself was reasonable, noting
that blood tests are a “highly effective means of
determining the degree to which a person is under
the influence of alcohol” and that such tests are
commonplace and routine, involving “virtually no
risk, trauma, or pain.” Jd. Finally, this Court found
the test was performed in a reasonable manner in
that the blood was taken by a physician in a hospital
environment according to accepted medical practices.
Id. The defendant’s right under the Fourth Amend-
ment to be free of unreasonable searches and sei-
zures, therefore, was not violated. Jd., at 772.
Recently, a deep split has emerged among various
courts applying’ conflicting interpretations of
Schmerber.
” Although the decision was cast in terms of the “search
incident to arrest” exception to the warrant requirement,
subsequent decisions of this Court have recognized Schmerber
as falling under the exigent circumstances exception. See United
States v. Dionisio, 410 U.S. 1, 8 (1973); Winston v. Lee, 470 U.S.
753, 759 (1985); Kentucky v. King, 131 S.Ct. 1849, 1857 n3
(2011).
15
A. Courts holding that the natural dis-
sipation of alcohol in the bloodstream
is sufficient to create exigent circum-
stances justifying a warrantless blood
draw under Schmerber
Wisconsin Supreme Court
In State v. Bohling, 494 N.W.2d 399 (Wis. 1993)
the Wisconsin Supreme Court held that the dissipa-
tion of alcohol from a person’s bloodstream consti-
tutes a sufficient exigency to justify a warrantless
blood draw as long as the blood draw is taken at the
direction of a law enforcement officer from a person
lawfully arrested for a drunk-driving related crime,
and there is a clear indication that the blood draw
will produce evidence of intoxication. Jd., at 406. In
reaching this conclusion, the Court noted that a “well-
recognized exigent circumstance is the threat that
evidence will be lost or destroyed if time is taken to
obtain a warrant.” Jd., at 401. Analyzing this Court’s
decision in Schmerber, the Court stated:
Schmerber can be read in either of two ways:
(a) that the rapid dissipation of alcohol in the
bloodstream alone constitutes a sufficient ex-
igency for a warrantless blood draw to obtain
evidence of intoxication following a lawful
arrest for a drunk driving related violation
or crime — as opposed to taking a blood sam-
ple for other reasons, such as to determine
blood type; or (b) that the rapid dissipation of
alcohol in the bloodstream, coupled with an
accident, hospitalization, and the lapse of
16
two hours until arrest, constitute exigent cir-
cumstances for such a blood draw.
Bohling, at 402. The Court concluded that the most
reasonable and logical interpretation of Schmerber
was the first one set forth:
A logical analysis of the Schmerber decision
indicates that the exigency of the situation
presented was caused solely by the fact that
the amount of alcohol in a person’s blood-
stream diminishes over time. The fact that
an accident occurred and that the defendant
was taken to the hospital did not increase
the risk that evidence of intoxication would
be lost. A hospital trip to another location at
which a medically qualified person is present
is standard procedure for taking a blood
sample in a drunk driving case, regardless of
whether an accident occurred.
Bohling, at 402-403.
In State v. Faust, 682 N.W.2d 371, 378 (Wis.
2004), the Wisconsin Supreme Court reaffirmed that
the exigency justifying a warrantless blood draw is
the rapid metabolization and dissipation of alcohol in
the bloodstream. There, the defendant was pulled
over in a routine traffic stop, exhibited signs of intoxi-
cation, and was arrested for driving while intoxicated.
Id., at 374. The defendant consented to provide a
sample of his breath for chemical analysis, which
revealed his blood alcohol content was slightly above
the legal limit. Jd. Believing that he needed to secure
additional evidence of intoxication, the arresting
17
officer requested the defendant to voluntarily provide
a blood sample, which he refused. Jd. Without
attempting to obtain a search warrant, the officer
then transported the defendant to a local hospital
where a medica! technician administered a blood test.
Id.
The Wisconsin Supreme Court upheld the war-
rantless and nonconsensual blood test. The Court
reiterated that “Schmerber stands for the proposition
that the fact that alcohol rapidly dissipates in the
bloodstream justifies an officer’s belief that he is
faced with ‘an emergency, in which the delay neces-
sary to obtain a warrant, under the circumstances,
threatens the destruction of evidence.’” Faust, at 377
(quoting Schmerber, 385 U.S. at 770). The Court
stated:
The fact that the police have obtained a pre-
sumably valid chemical sample of the de-
fendant’s breath indicating the defendant’s
level of intoxication does not change the fact
that that the alcohol continues to dissipate
from the defendant’s bloodstream. The evi-
dence sought ‘remains on a course to be de-
stroyed.’
Faust, at 378 [Citation omitted]. The Court concluded
that the presence of one presumptively valid chemical
sample of the defendant’s breath does not extinguish
the exigent circumstances justifying a warrantless
blood draw. Id., at 379. Thus, “([tJhe nature of the
evidence sought, not the existence of other evidence,
determines the exigency.” Jd.
18
Oregon Supreme Court
The Oregon Supreme Court likewise held that it
is the evanescent nature of the evidence sought that
constitutionally justifies the taking of a blood sample
without a search warrant. State v. Milligan, 748 P.2d
130, 136 (Or. 1988). In so holding, the Court first
determined that the police officer did, in fact, have
probable cause to believe that an analysis of the
defendant’s blood would yield evidence that he had
committed an alcohol-related crime. /d., at 134. The
Court then turned its attention to whether the police
were required to obtain a search warrant before
ordering the blood draw, and ultimately concluded
that the warrantless blood draw was justified under
the exigent circumstances exception to the warrant
requirement. Jd. The Court stated, “[w]hen he was
seized, the officers had probable cause to believe that
defendant was a vessel containing evidence of a crime
he had committed — evidence that was dissipating
with every breath he took.” Jd. The Court noted that
in order to accurately determine the level of alcohol in
the suspect’s blood at the time of the alleged crime,
the police must obtain an initial sample of the sus-
pect’s blood with as little delay as possible. Jd.
In reaching this conclusion, the Oregon Supreme
Court analyzed this Court’s decision in Schmerber.
The Oregon Supreme Court interpreted the “special
facts” existent in Schmerber to be the evanescent
nature of alcohol in the blood, and the fact that the
blood test was reasonable in that it was performed by
a physician in a hospital environment according to
19
accepted medical practices. Milligan, at 135. The
Oregon Supreme Court did not find that an accident
resulting in physical injuries requiring emergency
medical attention were “special facts” necessary to
justify a warrantless blood draw. Instead, the Court
found that Schmerber “relied on the exigency created
by the evanescent nature of blood alcohol and the
danger that important evidence would disappear
without an immediate search.” Milligan, at 135.
Recently, in State v. Machuca, 227 P.3d 729 (Or.
2010), the Oregon Supreme Court reiterated that the
evanescent nature of a suspect’s blood alcohol content
is an exigent circumstance that will ordinarily permit
a warrantless blood draw. /d., at 736. There, the
Court rejected an approach that would have required
the State to prove that it could not have obtained a
search warrant without sacrificing the evidence. /d.
The Court concluded that the focus should be on the
exigency created by blood alcohol dissipation, not on
the speed with which a warrant could presumably be
obtained. Jd. The Court acknowledged that, from time
to time, there may be rare instances where a search
warrant could be both obtained and executed in a
timely fashion. Jd. “The mere possibility, however,
that such situations may occur from time to time does
not justify ignoring the inescapable fact that, in every
such case, evidence is disappearing and minutes
count.” Jd. The Court reaffirmed the holding in Milli-
gan, concluding that “when probable cause to arrest
for a crime involving the blood alcohol content of the
suspect is combined with the undisputed evanescent
20
nature of alcohol in the blood, those facts are a suffi-
cient basis to conclude that a warrant could not have
been obtained without sacrificing the evidence.”
Machuca, at 736.
Minnesota Supreme Court
The Minnesota Supreme Court held that the
dissipation of alcohol in a defendant’s blood creates a
“single-factor exigent circumstance” that will justify a
warrantless and nonconsensual blood draw. State v.
Shriner, 751 N.W.2d 538 (Minn. 2008). The Court
based its holding on the imminent destruction of
evidence, noting that with every passing minute, the
most probative evidence is subjected to destruction by
the body’s natural processes. Jd., at 545. The Court
stated, “[i]Jt is undisputed that as a result of the
body’s physiological processes, the blood-alcohol
content in a defendant's blood dissipates with the
passage of every minute.” Jd., at 546. The Court
rejected a “totality of the circumstances” approach
that would require law enforcement officers to con-
sider the length of delay in obtaining a search war-
rant in determining whether exigent circumstances
exist. Jd. The Court found that requiring an officer in
the field to speculate on a range of other factors
outside of the officer’s control would place an unrea-
sonable burden on law enforcement. /d., at 549.
Instead, the Court held that under “single-factor
exigency” it is objectively reasonable to conclude that
the alcohol content in a defendant’s blood dissipates
with the passage of time due to the human body’s
21
natural, physiological processes. /d., at 548. A war-
rantless search is justified based on the imminent
destruction of evidence when there is the potential
loss of evidence during the delay necessary to obtain
a warrant. Jd. Since it is undisputed that the loss of
the most probative evidence occurs during the time it
takes to obtain a warrant, exigent circumstances are
present based on the imminent destruction of evi-
dence. Id., at 549.
The Minnesota Supreme Court found that its
conclusion was consistent with Schmerber and subse-
quent decisions of this Court. The Court cited Skinner
v. Railway Labor Executives’ Ass’n, 489 U.S. 602
(1989), where this Court noted:
[A]lcohol and other drugs are eliminated
from the bloodstream at a constant rate, and
blood and breath samples taken to measure
whether these substances were in the blood-
stream when a triggering event occurred
must be obtained as soon as possible ... the
delay necessary to procure a warrant never-
theless may result in the destruction of valu-
able evidence.
Shriner, at 547 (quoting Skinner, 489 U.S. at 623).
The Minnesota Supreme Court also addressed
the argument that the judgment in Schmerber was
limited “only on the facts of the present record” and
did not permit “more substantial intrusions, or intru-
sions under other conditions.” Shriner, at 547 n.9
(quoting Schmerber, 385 U.S. at 774). The Court
22
conciuded that “[t]his language, however, is properly
analyzed as indicating that Schmerber should not be
viewed as authorizing the police to take warrantless
blood draws in circumstances other than when they
suspect a person of drunk driving.” Shriner, at 547
n.9.
In State v. Netland, 762 N.W.2d 202 (Minn.
2009), the Minnesota Supreme Court reaffirmed that
the evanescent nature of the evidence creates the
conditions that justify a warrantless search. /d., at
213. There, the defendant had been charged with
misdemeanor offenses for driving while intoxicated
and refusing a chemical test. Jd., at 205-206. The
Court noted that whether the degree of the underly-
ing offense constitutes a felony or a lesser crime is
immaterial to the circumstances created by the
dissipating blood-alcohol evidence. Jd., 213. Rather, it
is the chemical reaction of alcohol in the person’s
body that drives the conclusion on exigency. Jd. The
Court concluded that “no warrant is necessary to
secure a blood-alcohol test where there is probable
cause to suspect a crime in which chemical impair-
ment is an element of the offense.” Jd., at 214.*
* The Ohio Supreme Court reached a similar conclusion in
State v. Hoover, 916 N.E.2d 1056 (Ohio 2009). Discussing
Schmerber, the Court stated, “(t]he United States Supreme
Court has held that if an officer has probable cause to arrest a
driver for DUI, the result of an analysis of a blood sample taken
over the driver’s objection and without consent is admissible in
evidence, even if no warrant has been obtained.” Jd., at 1060.
The Court found this is so because “delaying the test to get a
(Continued on following page)
23
United States Court of Appeals for the Sixth
Circuit
In United States v. Berry, 866 F.2d 887 (6th Cir.
1989), the Sixth Circuit upheld a warrantless blood
draw against a Fourth Amendment challenge. The
Court held that the search was reasonable because
the officer had ample cause to believe the defendant
was under the influence of alcohol, and because the
method of testing was safe and reasonable. /d., at
890. Reading Schmerber as an application of the
exigent circumstances exception to the warrant
requirement, the Sixth Circuit emphasized that the
authorities in Schmerber had probable cause estab-
lishing that the results of the blood test would be
positive. Berry, at 891. The Court found that because
warrant would result in a loss of evidence.” Jd. Other state
courts holding that the dissipation of alcohol in the bloodstream
creates exigent circumstances under Schmerber include: the
Arizona Supreme Court in State v. Cocio, 709 P.2d 1336, 1345
(Ariz. 1985) (“Because of the destructibility of the evidence,
exigent circumstances existed. The highly evanescent nature of
alcohol in the defendant’s blood stream guaranteed that the
alcohol would dissipate over a relatively short period of time.”);
the Maine Supreme Judicial Court in State v. Baker, 502 A.2d
489, 493 (Me. 1985) (“The bodily process that eliminates alcohol
also provides exigent circumstances obviating the need to obtain
a warrant prior to administering a blood test.”); and the Idaho
Supreme Court in State v. Woolery, 775 P.2d 1210, 1212 (Idaho
1989) (“The destruction of the evidence by metabolism of alcohol
in the blood provides an inherent exigency which justifies the
warrantless search.”). See also the Hawaii Supreme Court in
State v. Entrekin, 47 P.3d 336, 348 (Hawai'i 2002), and the
California Supreme Court in People v. Thompson, 135 P.3d 3
(Cal. 2006).
24
evidence of intoxication begins to dissipate promptly,
it was evident that there were exigent circumstances
justifying the warrantless blood draw. Jd. Although
the defendant in Berry was involved in a serious
accident resulting in physical injuries, the Sixth
Circuit did not identify these facts as critical factors
in its analysis. Instead, the Court simply concluded,
“[wle find no constitutional violation in police direc-
tion of qualified medical personnel at a medical
institution or facility without a warrant to administer
a blood test when the police have probable cause to
suspect that the results of the blood test would be
positive.” Jd.’
* The Eighth Circuit has likewise relied on Schmerber to
justify warrantless blood tests when the police have probable
cause to conduct the tests. See United States v. Prouse, 945 F.2d
1017 (8th Cir. 1991), where the Court approved warrantless
blood tests taken from defendants suspected of operating a
commercial passenger airplane while under the influence of
alcohol. Relying on Schmerber, the Court held that no warrant
was needed because the “percentage of alcohol in the blood
begins to diminish shortly after drinking stops.” Prouse, at 1024
(discussing Schmerber, 384 U.S. at 770-771). See also United
States v. Eagle, 498 F.3d 885 (8th Cir. 2007), where the Court
found exigent circumstances exist when there is a risk of
destruction of evidence, including a risk that a defendant's
blood-alcohol content will dissipate because “the body functions
to eliminate [alcohol] from the system.” Eagle, at 893 (quoting
Schmerber, 384 U.S. at 770-771).
25
United States Court of Appeals for the Fourth
Circuit
United States v. Reid, 929 F.2d 990 (4th Cir.
1991), was a consolidation of two cases involving
routine traffic stops on the George Washington Me-
morial Parkway. Both defendants showed signs of
intoxication, failed field sobriety tests, and were
arrested for driving while intoxicated. There were no
accidents involved in either case, nor were there any
physical injuries. The defendants argued that war-
rantless breath tests violated the Fourth Amendment.
Id., at 991-992. Relying on Schmerber, the Fourth
Circuit held the warrantless breath tests were justi-
fied under the exigent circumstances exception to the
warrant requirement. Reid, at 993. To support this
position, the Fourth Circuit further relied on the
decsion of this Court in Skinner, supra, finding that
Skinner “reiterated the notion that time is of the
essence when there is a need to test alcohol in the
body when it stated that ‘the delay necessary to
procure a warrant may nevertheless result in the
destruction of valuable evidence.’” Reid, at 993
(quoting Skinner, 489 U.S. at 623).
The Fourth Circuit also rejected the argument
that the availability of a procedure to obtain a search
warrant over the telephone diminished the exigency.
Reid, at 993. The Court examined the intricate re-
quirements of obtaining such a warrant and conclud-
ed that the procedure did not alter the exigency of the
situation. The Court stated, “[o]bviously, compliance
26
with these rules takes time. Time is what is lacking
in these circumstances.” /d.
B. Courts holding that Schmerber re-
quires additional “special facts” other
than the natural dissipation of alcohol
in the bloodstream to create exigent
circumstances justifying a warrantless
blood draw
Utah Supreme Court
In State v. Rodriguez, 156 P.3d 771 (Utah 2007),
the Utah Supreme Court considered whether the
dissipation of alcohol in the bloodstream creates “per
se” exigent circumstances justifying a warrantless
blood draw under the Fourth Amendment. Addressing
the State’s contention that there is a recognized
general exigency which applies to warrantless blood
draws because of the destruction of evidence, the
Court stated:
Had the United States Supreme Court held
that the Fourth Amendment permits police
to conduct a warrantless blood draw when-
ever evidence of alcohol is present, the task
before us would be easy. However, the fact
that it has not so held places us in the posi-
tion of following a course that is part divina-
tion and part pragmatism. We engage in
divination when, employing what we might
ambitiously call a principled approach to
prophecy, we attempt to predict how the
United States Supreme Court might decide
the question before us. This is a perilous
27
activity. As we will see when we take up the
clearest pronouncement of the Supreme
Court on the issue of alcohol and warrants,
the Supreme Court could have created forty
years ago the very categorical exigent cir-
cumstance rule for alcohol that the State
now seeks. But it did not.
Id., at 774.
The Utah Supreme Court proceeded to analyze
this Court’s decision in Schmerber, finding that
Schmerber requires the combination of three catego-
ries of “special facts” to create exigent circumstances.
Rodriguez, at 776. The three categories of Schmerber
“special facts” were identified by the Court as: (1)
blood-alcohol content begins to drop shortly after
drinking ends; (2) time had been taken to transport
the defendant to a hospital and to investigate the
accident scene; and (3) the necessity to seek out a
magistrate and secure a warrant would require even
more time. Jd. The Court stated:
Contrary to the assertion of the State,
Schmerber does not stand for the proposition
that the loss of evidence of a person’s blood
alcohol level through the dissipation of alco-
hol from the body was a sufficient exigency
to justify a warrantless blood draw. Rather,
these three categories of “special facts” com-
bimed iv create the exigency. The evanes-
cence of blood-alcohol was never special
enough to create an exigent circumstance by
itself.
Id., at 776.
28
To support its conclusion that the dissipation of
alcohol in the bloodstream, without more, does not
create exigent circumstances justifying a warrantless
blood draw, the Court highlighted the following
language in Schmerber: “that we today hold that the
Constitution does not forbid the States’ minor intru-
sions into an individual’s body under stringently
limited conditions in no way indicates that it permits
more substantial intrusions, or intrusions under
other conditions.” Jd., (quoting Schmerber, 384 U.S.
at 772). The Court concluded that this “guarded
language employed by Justice Brennan to define the
Court’s holding in Schmerber reinforces our conclu-
sion that the Court did not intend a categorical
recognition of blood-alcohol exigency.” Rodriguez, at
776.
Ultimately, the Utah Supreme Court held that
the warrantless blood draw in Rodriguez was reason-
able under the “totality of the circumstances” because
a serious accident resulting in a fatality had occurred.
Id., at 781. Although the Court was sharply critical of
the police officers for not considering the possibility of
obtaining a search warrant, the Court concluded the
warrantless blood draw was reasonable under the
“totality of the circumstances” because the passenger
in the defendant’s vehicle was expected to die. Id.
“One fact dominates all others with respect to its
relevance to whether the warrantless blood draw was
reasonable: that [victim] was expected to succumb to
her injuries.” Jd. The Court fourid that this fact
“significantly altered the warrant acquisition calculus.”
29
Id. The Court concluded that the “severity of the
possible alcohol-related offense bears directly on the
presence or absence of an exigency sufficient to justify
a blood draw without a warrant.” Id.
The Utah Supreme Court recognized that its
interpretation of Schmerber was squarely at odds
with the decision of the Wisconsin Supreme Court in
State v. Bohling, supra. The Utah Supreme Court
expressly disavowed the reasoning of the Wisconsin
Supreme Court, asserting that its conclusion rested
on “a flawed reading of Schmerber, and a misapplica-
tion of Skinner.” Rodriguez, at 777.
Iowa Supreme Court
In State v. Johnson, 744 N.W.2d 340 (lowa 2008),
the Iowa Supreme Court considered whether, and
under what circumstances, the natural dissipation of
alcohol in the bloodstream creates exigent circum-
stances justifying a warrantless blood draw. In its
analysis, the Iowa Supreme Court noted that
Schmerber has been discussed by cases from other
jurisdictions with mixed conclusions. Jd., at 343. The
Court proceeded to analyze and compare the interpre-
tations of Schmerber by both the Wisconsin Supreme
Court in State v. Bohling, supra, and the Utah Su-
preme Court in State v. Rodriguez, supra. Johnson, at
343-344. After comparing the two interpretations, the
Iowa Supreme Court endorsed the Utah Supreme
30
Court’s view in Rodriguez, agreeing that three sepa-
rate categories of “special facts” must be combined to
create the exigency. Johnson, at 344.
To support this interpretation, the lowa Supreme
Court placed emphasis on the following language in
Schmerber: “[i]Jt bears repeating, however, that we
reach this judgment only on the facts of the present
record.” Jd., at 344 (quoting Schmerber, 384 U.S. at
772). The Iowa Supreme Court maintained that the
“present record” referred to in Schmerber showed that
time had to be taken by the arresting officer to inves-
tigate the scene of the accident, to attend to injuries,
and to process the defendant. Johnson, at 344. The
Court concluded that “there was more underlying the
seizure of blood in Schmerber than the mere phenom-
enon of alcohol dissipation.” Jd.
Ultimately, the Court held that the warrantless
blood draw was justifiable because the facts of the
case were sufficiently similar to the facts in
Schmerber. Id. The Court relied on the fact that the
defendant in Johnson was involved in an accident
resulting in injuries to another person, the defendant
attempted to leave the scene on foot, and the blood
test was not administered until approximately two
and a half hours after the accident. Jd., at 344. The
Court was therefore satisfied that “time-based con-
siderations similar to those in Schmerber” were
present. Jd.
31
C. The decision of the Missouri Supreme
Court has deepened the division among
state courts of last resort
The Missouri Supreme Court has adopted a
narrow interpretation of Schmerber, following the
reasoning of the Utah Supreme Court in Rodriguez,
supra, and the lowa Supreme Court in Johnson,
supra. This has created a further division among
state courts of last resort.’ This emerging conflict on
a fundamental Fourth Amendment issue will likely
continue to divide both state and federal courts until
this Court clarifies the holding in Schmerber. The
intervention of this Court is imperative in order to
facilitate uniform application of the Fourth Amend-
ment.
" The Missouri Supreme Court also asserted that its
holding was consistent with the Ninth Circuit in United States v.
Chapel, 55 F.3d 1416 (9th Cir. 1995). App., infra, 13a-l4a.
However, it appears to be at least somewhat unclear whether
the Ninth Circuit would require a showing of additional “special
facts” before allowing a warrantless blood draw. The Ninth
Circuit simply held that there are three Schmerber require-
ments that must be met before a law enforcement officer may
take a warrantless blood test: (1) the officer must have probable
cause to believe the suspect has committed an offense of which
the current state of one’s blood will constitute evidence; (2) the
officer must reasonably believe an emergency exists in which the
delay necessary to obtain a warrant would threaten the loss or
destruction of evidence; and (3) the procedures used to extract
the sample must be reasonable and in accord with accepted
medical practices. Jd., at 1419.
32
To illustrate the point, if a drunk driver traveling
on an interstate highway were to be pulled over in
the state of Wisconsin or Minnesota, law enforcement
authorities would be permitted to obtain a warrant-
less blood test based upon their high courts’ respec-
tive interpretations of this Court’s decision in
Schmerber. However, if this same drunk driver were
able to cross the state line into lowa before being
pulled over, law enforcement authorities would be
precluded from ordering a warrantless blood test
based upon the Iowa Supreme Court’s interpretation
of Schmerber. This glaring conflict will not be recon-
ciled until this Court takes action to clarify the hold-
ing in Schmerber.
Il. The Missouri Supreme Court Misinterpret-
ed This Court’s Decision In Schmerber uv.
California, 384 U.S. 757 (1966) And Improp-
erly Applied The Fourth Amendment
A. The Missouri Supreme Court misin-
terpreted Schmerber
The Missouri Supreme Court interpreted
Schmerber to require additional exigency, beyond the
natural dissipation of alcohol in the bloodstream, in
order to justify a warrantless blood draw. To support
this narrow reading, the Court relied extensively on
language in Schmerber that it understood to be an
explicit warning against expansive interpretations:
It bears repeating, however, that we reach
this judgment only on the facts of the present
33
record, The integrity of an individual’s per-
son is e cherished value of our society. That
we today hold that the Constitution does not
forbid the States minor intrusions into an
individual’s body under stringently limited
conditions in no way indicates that it permits
more substantial intrusions, or intrusions
under other conditions.
Schmerber, 384 U.S. at 772. App., infra, 18a-19a. The
Missouri Supreme Court’s reliance on what it under-
stood to be an “explicit warning against expansive
interpretations,” however, is misplaced. This “explicit
warning” was directed at the nature of the bodily
intrusion itself, not on the underlying facts of the
drunk-driving arrest. In the paragraph immediately
preceding this “explicit warning,” Schmerber empha-
sized that the intrusion at issue, the simple blood
test, was performed in a reasonable manner.
Schmerber, 384 U.S. at 771-772. Noting that the
blood sample was taken by a physician in a hospital
environment according to accepted medical practices,
Schmerber proceeded to warn against procedures
which might not be safe:
We are thus not presented with the serious
questions which would arise if a search in-
volving use of a medical technique, even of
the most rudimentary sort, were made by
other than medical personnel or in other
than a medical environment — for example, if
it were administered by police in the privacy
of the stationhouse. To tolerate searches un-
der these conditions might be to invite an
34
unjustified element of personal risk of infec-
tion or pain.
Id. Schmerber thus made it clear that blood tests
performed by unqualified personnel in non-medical
settings would not be tolerated. Schmerber made it
equally clear that other, more invasive, bodily intru-
sions would likewise not be tolerated.
This Court was confronted with an example of a
much more invasive bodily intrusion in Winston v.
Lee, 470 U.S. 753 (1985). There, this Court held it
was unreasonable under the Fourth Amendment to
compel a robbery suspect to undergo a surgical opera-
tion to recover a bullet that had lodged in his chest.
Finding that Schmerber provides the appropriate
framework of analysis for cases involving surgical
intrusions beneath the skin, this Court concluded
that compelling a suspect to undergo a surgical
procedure to recover a bullet was precisely the sort of
example of the “more substantial intrusions” cau-
tioned against in Schmerber. Winston, 470 U.S. at
755. In so holding, this Court reiterated that
“Schmerber recognized society's judgment that blood
tests do not constitute an unduly extensive imposition
on an individual’s personal privacy and bodily integri-
ty.” Id., at 762.
Indeed, this Court has long recognized that a
simple blood test is a minor intrusion for constitu-
tional purposes. In Breithaupt v. Abram, 352 U.S. 432
(1957), this Court recognized that “[t]he blood test
procedure has become routine in our everyday life.”
35
Id., at 436. Holding that there is nothing ‘brutal’ or
‘offensive’ in the taking of a blood sample when done
under the protective eye of a physician, this Court
found that a simple blood test “would not be consid-
ered offensive by even the most delicate.” Jd., at 435-
436. Later, in South Dakota v. Neville, 459 U.S. 553
(1983), this Court noted that “[t]he simple blood-
alcohol test is so safe, painless, and commonplace...
that the state could legitimately compel the suspect,
against his will, to accede to the test.” Jd., at 563.
There, this Court plainly stated, “Schmerber ...
clearly allows a State to force a person suspected of
driving while intoxicated to submit to a blood alcohol
test.” Id., at 559.
B. It is objectively reasonable for a law en-
forcement officer to obtain a warrant-
less blood test from a drunk driver
because of the imminent destruction of
evidence
It is a basic principle of Fourth Amendment law
that searches and seizures conducted without a
warrant are presumptively unreasonable. See Katz v.
United States, 389 U.S. 347, 357 (1967). Because the
ultimate touchstone of the Fourth Amendment is
“reasonableness,” however, the warrant requirement
is subject to certain exceptions. Brigham City uv.
Stuart, 547 U.S. 398, 403 (2006). An action is “rea-
sonable” under the Fourth Amendment, regardless of
the individual police officer’s state of mind, as long as
the circumstances, viewed objectively, justify the
36
action. Jd., at 404. Although a search warrant must
generally be secured before conducting a search, this
Court has recognized that “the exigencies of the
situation” may make the needs of law enforcement so
compelling that a warrantless search is objectively
reasonable under the Fourth Amendment. /d. (quot-
ing Mincey v. Arizona, 437 U.S. 385, 394 (1978)).
This Court has identified several exigencies that
may justify a warrantless search, including the hot
pursuit of a fleeing suspect, United States v. Santana,
427 U.S. 38, 42-43 (1976), the need to render emer-
gency assistance or protect a person from imminent
injury, Brigham City, 547 U.S. at 403, and the need to
prevent the imminent destruction of evidence, Ken-
tucky v. King, 131 S.Ct. 1849, 1856 (2011). Indeed, in
King this Court stated that “[i]t is well established
that ‘exigent circumstances,’ including the need to
prevent the destruction of evidence, permit police
officers to conduct an otherwise permissible search
without first obtaining a warrant.” Jd., at 1853-1854.
Thus, when a law enforcement officer has probable
cause to conduct a search, a warrantless search will
be justified under the exigent circumstances excep-
tion to the warrant requirement if the officer has an
objectively reasonable belief there is a risk that
evidence will be destroyed during the delay necessary
to obtain a search warrant.
There can be no dispute that the level of alcohol
in the bloodstream of a drunk driver is highly proba-
tive evidence. This Court has recognized that blood
tests are exceptionally probative in drunk-driving
37
prosecutions, finding that they are “a highly effective
means of determining the degree to which a person is
under the influence of alcohol.” Schmerber, 384 U.S.
at 771. See also Breithaupt, supra, 352 U.S. at 439
(noting that blood tests are “a scientifically accurate
method of detecting alcoholic content in the blood,
thus furnishing an exact measure upon which to base
a decision as to intoxication.”); Winston, supra, 470
U.S. at 763 (“Especially given the difficulty of proving
drunkenness by other means ... results of the blood
test were of vital importance if the State were to
enforce its drunken driving laws.”).
There can also be no dispute that the level of
alcohol in the bloodstream of a drunk driver is subject
to destruction by the body’s natural, physiological
processes. In Schmerber, this Court found that that
the arresting officer might reasonably have believed
he was confronted with an emergency in which the
delay necessary to obtain a warrant threatened the
destruction of evidence because “the percentage of
alcohol in the blood begins to diminish shortly after
drinking stops, as the body functions to eliminate it
from the system.” Schmerber, 384 U.S. at 770. In
Skinner, supra, this Court recognized that because
alcohol is eliminated from the bloodstream at a
constant rate, “blood and breath samples taken to
measure whether these substances were in the blood-
stream when a triggering event occurred must be
obtained as soon as possible” and that “the delay
necessary to procure a warrant nevertheless may
38
result in the destruction of valuable evidence.” Skin-
ner, supra, 489 U.S. at 623.
Blood alcohol evidence is extraordinarily unique
precisely because it is an indisputable fact that
alcohol is naturally eliminated from the human body.
The exigency involved in quickly securing blood
alcohol evidence is even more compelling than other
situations where there is a risk of destruction of
evidence because the alcohol in a suspect’s blood is
certain to disappear, while other types of evidence
may only be very likely to disappear. See State v.
Cocio, 709 P.2d 1336, 1345 (Ariz. 1985). See also 3 W.
LaFave, Search and Seizure, § 5.4(b), at 199 (4th ed.
2004) (discussing blood alcohol evidence and noting
that “the ‘evanescent’ character of the evidence is
inherent in its nature and does not depend upon any
motive of the defendant to destroy it.”) As the Oregon
Supreme Court recently stated in State v. Machuca,
227 P.3d 729, 736 (Or. 2010), the focus of the courts
should be on the exigency created by blood alcohol
dissipation, not on the speed with which a search
warrant could presumably be obtained.
The decision of the Missouri Supreme Court,
however, actually requires police officers to stand by
and allow the best, most probative evidence to be
destroyed during a drunk-driving investigation. This
is wholly inconsistent with core principles of the
Fourth Amendment. Proper application of the Fourth
Amendment must take into account the need for the
police to act quickly in order to prevent the destruc-
tion of evidence. When a law enforcement officer has
39
probable cause to arrest a person for a drunk-driving
related crime, it is certainly objectively reasonable to
conclude that blood alcohol evidence will continue to
dissipate during the inevitable delay necessary to
obtain a search warrant. Under these circumstances,
it is reasonable for an officer to direct medical per-
sonnel at a hospital te draw a blood sample from a
drunk driver without first obtaining a search war-
rant. This comports with Fourth Amendment stan-
dards of reasonableness.
Ill. The Question Presented Is Of Substantial
And Recurring Importance
Drunk driving is a serious problem on public
roads and highways throughout the United States.
This Court is well aware of the dangers posed by
drunk drivers. Summarizing the problem over twenty
years ago, this Court stated:
No one can seriously dispute the magnitude
of the drunken driving problem or the States’
interest in eradicating it. Media reports of
alcohol-related death and mutilation on the
Nation’s roads are legion. The anecdotal is
confirmed by the statistical. ‘Drunk drivers
cause an annual death toll of over 25,000 and
in the same time span cause nearly one mil-
lion personal injuries and more than five bil-
lion dollars in property damage.’ For
decades, this Court has ‘repeatedly lamented
the tragedy.’ ‘The increasing slaughter on our
highways ... now reaches the astounding
figures only heard of on the battlefield.’
40
Michigan Dept. of State Police v. Sitz, 496 U.S. 444
(1990) [citations omitted].
Proper and consistent application of the Fourth
Amendment is essential in order for law enforcement
to effectively enforce drunk-driving laws throughout
the United States. This Court’s resolution of the
question presented is critically important to law
enforcement efforts to promote public safety by rid-
ding our roads and highways of drunk drivers, efforts
which have been constrained by misinterpretation of
this Court’s decision in Schmerber and improper
application of the Fourth Amendment.
°
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
OFFICE OF THE PROSECUTING ATTORNEY
CAPE GIRARDEAU COUNTY, MISSOURI
H. MORLEY SWINGLE, Prosecuting
Attorney
JOHN N. KOESTER, JR.,
Counsel of Record
Assistant Prosecuting Atterney
100 Court Street, Suite 204
Jackson, MO 63755
(573) 243-2430
jnkoester@capecounty.us
la
358 S.W.3d 65
Supreme Court of Missouri,
En Banc.
STATE of Missouri, Appellant,
v.
Tyler G. McNEELY, Respondent.
No. SC 91850.
Jan. 17, 2012.
Rehearing Denied March 6, 2012.
John N. Koester Jr., Cape Girardeau County Prose-
cuting Attorney’s Office, Cape Girardeau, for State.
Stephen C. Wilson, Wilson & Mann LC, Cape
Girardeau, for McNeely.
Stephen D. Bonney, Kansas City, for amicus curiae
American Civil Liberties Union of Eastern Missouri
and American Civil Liberties Union of Western Mis-
souri.
Talmage E. Newton IV, St. Louis, for amicus curiae
Missouri Association of Criminal Defense Lawyers.
James B. Farnsworth, Jefferson City, for amicus
curiae Attorney General’s Office.
PER CURIAM.
Tyler McNeely (Defendant) refused to consent to
an alcohol breath test or a blood test after he was
arrested for driving while intoxicated. The arresting
patrolman, without seeking a warrant from a judge,
ordered a medical professional to draw Defendant’s
blood. The trial court sustained Defendant’s motion to
2a
suppress the results of the blood test as the noncon-
sensual and warrantless blood draw was a violation
of his Fourth Amendment rights.
The issue before the Court in this interlocutory
appeal is: Under what “special facts” is a nonconsen-
sual and warrantless blood draw in a DWI case a
reasonable search and seizure under the Fourth
Amendment?
This Court recognizes the two competing inter-
ests involved in answering that question, namely,
society's interest in preventing the harms caused by
drunken driving and an individual’s Fourth Amend-
ment right to be secure in his or her person and to be
free of unreasonable searches and seizures.
The United States Supreme Court addressed this
issue in the landmark case of Schmerber v. Califor-
nia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966). There, the Supreme Court provided a limited
exception to the warrant requirement for the taking
of a blood sample in alcohol-related arrests. Jd. at
772, 86 S.Ct. 1826. The holding, which was expressly
limited to the facts of that case, ultimately rested on
certain “special facts” that might have led the officer
to reasonably believe he was faced with an emergency
situation in which the delay in obtaining a warrant
would threaten the destruction of evidence. Jd. at
770-71, 86 S.Ct. 1826. The threat of evidence destruc-
tion was caused by the fact that the percentage of
alcohol in a person’s blood begins to diminish shortly
after drinking stops and because time had to be taken
3a
both to investigate the accident scene and transport
the defendant to the hospital. Jd. These events left no
time for the officer to seek out a judge to secure a
search warrant. Id. Schmerber held that these “spe-
cial facts” permitted a warrantless blood draw. Jd. at
771, 86 S.Ct. 1826.
The patrolman here, however, was not faced with
the “special facts” of Schmerber. Because there was no
accident to investigate and there was no need to
arrange for the medical treatment of any occupants,
there was no delay that would threaten the destruc-
tion of evidence before a warrant could be obtained.
Additionally, there was no evidence here that the
patrolman would have been unable to obtain a war-
rant had he attempted to do so. The sole special fact
present in this case, that blood-alcohol levels dissi-
pate after drinking ceases, is not a per se exigency
pursuant to Schmerber justifying an officer to order a
blood test without obtaining a warrant from a neutral
judge.
The judgment of the trial court is affirmed.’
' Affirming the trial court’s decision granting the motion to
suppress does not result in the dismissal of the case against
Defendant. Instead, the state may proceed in the prosecution of
the DWI charge against Defendant based on other evidence not
gathered in violation of the Constitution.
4a
I. Facts
A Missouri state highway patrolman, while
performing his patrol, stopped Defendant’s truck for
speeding at 2:08 a.m. As the patrolman spoke with
Defendant during the routine traffic stop, he noticed
that Defendant displayed the tell-tale signs of intoxi-
cation — bloodshot eyes, slurred speech, and the smell
of alcohol on his breath. These observations changed
the nature of the patrolman’s investigation from a
routine traffic stop to a DWI investigation. He asked
Defendant to step out of the vehicle and to perform
standard field-sobriety tests. Defendant performed
the tests poorly, and the patrolman placed Defendant
under arrest for driving while intoxicated. After
securing Defendant in the patrol car, the patrolman
asked him if he would consent to a breath test. De-
fendant refused.
The patrolman testified that, in his more than 17
years of experience, he had obtained warrants when
he needed to test the blood of DWI suspects. This
time, however, he was influenced by an article he
previously had read, written by a traffic safety re-
source prosecutor, in “Traffic Safety News.” He testi-
fied that the article asserted officers no longer needed
to obtain a warrant before requiring DWI suspects to
submit to nonconsensual blood tests because of recent
changes in Missouri’s implied consent law.’ Based on
* The article, Warrantless Blood Draws: Are They Now
Authorized in Missouri?, acknowledged that the former version
of section 577.041.1 stated that if a person refused both the
(Continued on following page)
5a
this understanding, the patrolman did not seek a
warrant and drove Defendant to the local] hospital to
test his blood to secure evidence of his intoxication.
There, Defendant refused to consent to a blood draw.
Over Defendant’s refusal, the patrolman directed a
phlebotomist to draw Defendant’s blood for alcohol
testing at 2:33 a.m. The blood sample was analyzed,
and the results revealed that Defendant’s blood-
alcohol content was well above the legal limit.
Defendant moved to suppress the results of the
blood test as a violation of his Fourth Amendment
rights. The trial court sustained the motion. The
State brings this interlocutory appeal.’
Il. Standard of Review
A trial court’s ruling on a motion to suppress will
be reversed only if it is clearly erroneous. State v.
Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). This
Court defers to the trial court’s factual findings and
breath-analyzer and the blood draw test, then “none shall be
given.” Section 577.041.1, RSMo Supp.2008. However, that
section was amended prior to Defendant’s arrest by the deletion
of the phrase “and none shall be given.” Section 577.041.1,
RSMo. Supp.2010. With the removal of that phrase, the prosecu-
tor asserted that police officers now may “rely on the well settled
principle that obtaining blood from an arrestee on probable
cause without a warrant and without actual consent does not
offend constitutional guarantees.” The prosecutor’s assertion
rests on a fundamental misreading of Schmerber.
* This Court has jurisdiction pursuant to article V, section
10 of the Missouri Constitution.
6a
credibility determinations and considers all evidence
and reasonable inferences in the light most favorable
to the trial court’s ruling. Jd. Whether conduct vio-
lates the Fourth Amendment is a question of law,
which is reviewed de novo. Id.
Ill. Analysis
The issue before this Court is whether the natu-
ral dissipation of blood-alcohol evidence is alone a
sufficient exigency to dispense with the warrant
requirement under the Fourth Amendment.
The Fourth Amendment to the United States
Constitution ensures “[t]he right of the people to be
secure in their person ... against unreasonable
searches and seizures.” The United States Supreme
Court has repeatedly held that “searches conducted
outside the judicial process, without prior approval by
judge or magistrate are per se unreasonable under
the Fourth Amendment — subject to only a few specif-
ically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967).
An exception to the general rule requiring a
search warrant is when exigent circumstances are
present. United States v. Cisneros-Gutierrez, 598 F.3d
997, 1004 (8th Cir.2010). Exigent circumstances exist
if the time needed to obtain a warrant would endan-
ger life, allow a suspect to escape, or risk the destruc-
tion of evidence. Id.
7a
Every Fourth Amendment analysis requires the
balancing of two competing interests: (1) the right of
the individual to be secure in his or her person, house,
papers, and effects against unreasonable searches
and seizures and (2) society's interest in discovering
and eliminating criminal] activity. Schmerber recog-
nized this essential and inevitable struggle of the
Fourth Amendment:
Search warrants are ordinarily required for
searches of dwellings, and absent an emer-
gency, no less could be required where intru-
sions into the human body are concerned.
The requirement that a warrant be obtained
is a requirement that the inferences to sup-
port the search “be drawn by a neutral and
detached magistrate instead of being judged
by the officer engaged in the often competi-
tive enterprise of ferreting out crime.” The
importance of informed, detached and delib-
erate determinations of the issue whether or
not to invade another’s body in search of evi-
dence of guilt is indisputable and great.
384 U.S. at 770, 86 S.Ct. 1826 (quoting Johnson
v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92
L.Ed. 436 (1948)) (internal citations omitted).
A. Schmerber v. California
Schmerber provides the backdrop to this Court’s
analysis in the case at hand. In Schmerber, the de-
fendant was driving a vehicle that skidded off the
8a
road. Jd. at 758 n. 2, 86 S.Ct. 1826. He and his pas-
senger were injured and taken to the hospital for
treatment. Jd. At the hospital, the defendant was
arrested and, without his consent or a warrant, an
officer directed a physician to take a sample of the
defendant’s blood. Jd. at 758, 86 S.Ct. 1826. Analysis
of the blood sample revealed that the defendant was
intoxicated. Jd. at 759, 86 S.Ct. 1826. The defendant
objected to the trial court’s receipt of the blood sample
evidence, contending that the warrantless blood draw
violated his Fourth Amendment right to be free from
unreasonable searches and seizures. /d.
The Supreme Court reasoned that drawing an
individual’s blood for evidentiary purposes is a search
that implicates the Fourth Amendment. Id. at 769-70,
86 S.Ct. 1826. Ordinarily a search warrant would be
required to perform a blood draw when a person does
not consent. Jd. at 770, 86 S.Ct. 1826. The circum-
stances in Schmerber, however, led the Supreme
Court to carve out a very limited exception to the
warrant requirement for a blood draw in alcohol-
related cases. Id. at 772, 86 S.Ct. 1826. The limited
exception of Schmerber ultimately rested on certain
“special facts” that might have caused the officer to
reasonably believe he was faced with an emergency
situation in which the delay in obtaining a warrant
would threaten the destruction of evidence. Jd. at
770-71, 86 S.Ct. 1826. The threat of evidence destruc-
tion was caused by the fact that the percentage of
alcohol in a person’s blood begins to diminish shortly
after drinking stops and because there was an
9a
accident requiring time to be taken to both transport
the defendant to the hospital and to investigate the
scene of the accident. Jd. Given those “special facts”
the Supreme Court concluded that the warrantless
search was valid incident to the defendant’s arrest.
Id. at 771, 86 S.Ct. 1826. Although Schmerber
couched its limited exception to the warrant require-
ment in terms of a search incident to arrest, it has
since been read as an application of the exigent
circumstances exception to the warrant requirement.
United States v. Berry, 866 F.2d 887, 891 (6th
Cir.1989).
The State urges that Schmerber gives officers the
broad authority to direct medical professionals to
conduct warrantless and nonconsensual blood draws
on DWI defendants on mere probable cause of intoxi-
cation. The State asserts that the dissipating nature
of blood-alcohol evidence alone constitutes a sufficient
exigency to dispense with the warrant requirement in
alcohol-related cases.
Schmerber, however, requires more than the mere
fact that alcohol naturally dissipates in the blood
stream. Instead, it requires a showing of “special
facts” to provide an exigency to conduct a warrantless
bodily intrusion. Schmerber, 384 U.S. at 770-71, 86
S.Ct. 1826. The “special facts” present in Schmerber
included the time delay created by the investigation
of the accident as well as the transportation of the
defendant to the hospital. Jd. These “special facts”
might have caused the officer to reasonably believe he
was faced with an emergency situation in which the
10a
further delay in obtaining a warrant would threaten
the destruction of evidence. Jd. Under this limited
fact situation, Schmerber held a nonconsensual,
warrantless blood draw was permissible under the
Fourth Amendment. Jd. at 772, 86 S.Ct. 1826. This
interpretation of Schmerber is supported by other
jurisdictions that have addressed this issue.
B. Other Jurisdictions That Have Addressed
Schmerber Have Held That “Special Facts”
Beyond the Natural Dissipation of Blood-
Alcohol Are Required
Since Schmerber, several courts have addressed
whether Schmerber’s holding allows for nonconsen-
sual, warrantless blood draws in routine DWI cases.
The Supreme Court of Utah held that the dissipating
nature of blood-alcohol evidence alone is not a per se
exigency justifying a warrantless search. State v.
Rodriguez, 156 P.3d 771, 772 (Utah 2007). In Rodri-
guez, the defendant was critically injured in a serious
automobile accident and was rushed to the hospital.
Id. An officer went to the hospital where the defen-
dant was being treated and observed the odor of
alcohol on her breath, slurred speech, red eyes, and
belligerent behavior. Jd. Blood was drawn from the
defendant through an IV line that the hospital staff
had previously inserted in her arm. Jd. The analysis
of her blood revealed that her blood-alcohol level was
five times the legal limit in Utah. Jd. At trial, the
defendant moved to suppress the evidence obtained
from the warrantless blood draw. Id.
lla
Rodriguez, in analyzing Schmerber, stated: “The
evanescence of blood-alcohol was never special enough
to create an exigent circumstance by itself.” Jd. at 776.
Instead, the Utah court reasoned, Schmerber’s exigent
circumstances exception to the warrant requirement
rested on all of the “special facts” of Schmerber, and
the natural dissipation of blood-alcohol was only one
of those “special facts.” Id. Rodriguez adopted a
totality of the circumstances test for the determination
of whether there exists a sufficient exigency justifying
a warrantless blood draw. Id. at 782. Rodriguez rea-
soned that the seriousness of the accident in the case,
coupled with the compelling evidence of the defen-
dant’s alcohol impairment, was “sufficient to establish
that the interests of law enforcement outweighed, in
this instance, [the defendant’s] privacy interests.” Id.
at 781. The Supreme Court of Utah held that, given
the totality of the circumstances, probable cause and
exigent circumstances justified a warrantless blood
draw in the case before it. Id. at 782.
Similarly, the Supreme Court of Iowa noted that
Schmerber rejected the notion that the natural dissi-
pation of blood-alcohol constituted a per se exigency
justifying a warrantless blood draw. State v. Johnson,
744 N.W.2d 340, 344 (Iowa 2008). In Johnson, the
defendant was involved in a car accident that caused
serious injury to the driver of another car. Jd. at 341.
After the accident, the defendant fled the scene on
foot, but the police tracked him down not far from the
scene. Jd. He was arrested and taken to the police
12a
station, where he refused a breath test. Jd. Subse-
quently, he was taken to the hospital, and a blood
sample was drawn without a warrant and without his
consent. Jd. Analysis of his blood revealed that his
blood-alcohol concentration was well above the legal
limit in Iowa. Jd. The defendant moved to suppress
the results of the blood test. Jd.
Johnson analyzed the admissibility of a warrant-
less blood draw performed in accordance with an
Iowa statute authorizing such draws. Id.‘ The de-
fendant argued that the officer was not faced with an
“emergency” under the Iowa statute. Id. The Iowa
court found that there were Schmerber-like time-
based considerations present in the case before it
because the officer had to take time to investigate the
scene, track down the fleeing defendant, administer
sobriety tests, and transport him to the police station
and hospital. Jd. at 344. Two and a half hours after
the accident, officers were finally able to draw the
* The Iowa statute in question closely tracked the ration-
ales of Schmerber, allowing a nonconsensual, warrantless blood
draw when the operator of a motor vehicle is arrested for an
“accident that causes a death or personal injury reasonably
likely to cause death” when three additional elements are
present: (1) the officer reasonably believes the blood drawn will
produce evidence of intoxication; (2) the blood is drawn.by a
medical personnel; and (3) the officer reasonably believes that
he or she is confronted with an emergency situation in which the
delay necessary to obtain a warrant threatens the destruction of
the evidence. Jd. at 342 (quoting Iowa Code section 321J.9
(2005)).
13a
defendant’s blood. Id. Johnson held that the warrant-
less blood draw was permissible because the officer,
in investigating a serious injury accident, “might
reasonably have believed that he was confronted with
an emergency, in which the delay necessary to obtain
a warrant, under the circumstances, threatened the
destruction of evidence.” Id. at 342-43 (quoting
Schmerber, 384 U.S. at 770, 86 S.Ct. 1826). The
Supreme Court of Iowa rejected the idea that
Schmerber created a per se exigency based on the
nature of blood-alcohol alone. Jd. at 344. Instead, it
noted that “there was more underlying the seizure of
blood in Schmerber than the mere phenomenon of
alcohol dissipation.” Jd.
Finally, the Ninth Circuit held that an arrest is
not a constitutional prerequisite to a warrantless
blood draw in United States v. Chapel, 55 F.3d 1416,
1420 (9th Cir.1995). In so holding, the court discussed
the constitutionality of nonconsensual, warrantless
blood draws. It reasoned that although a nonconsen-
sual, warrantless blood draw may be based upon
probable cause instead of requiring an arrest,
Schmerber requires more:
In addition to probable cause, the other
Schmerber requirements remain in place.
The officer must still reasonably believe that
an emergency exists in which the delay nec-
essary to obtain a warrant would threaten
the loss or destruction of evidence. The pro-
cedures used to extract the sample must still
l4a
be reasonable and in accordance with
accepted medical practices.
Id. at 1419.
Chapel’s interpretation of Schmerber is con-
sistent with this Court’s holding today. The DWI
defendant in Chapel had been severely injured in a
motorcycle accident; therefore, the officer was faced
with an emergency situation that — taken with the
natural dissipation of blood-alcohol, the accident
investigation, and the hospital transportation time
delay — constituted exigent circumstances justifying a
nonconsensual, warrantless blood draw. See id. at
1417-20.
Contrary to the State’s assertion, no case in
Missouri supports a per se rule that the natural
dissipation of blood-alcohol is alone sufficient to
constitute exigent circumstances that would permit
officers in every DWI case to take blood from a sus-
pect without consent or a search warrant.’ The State
* The State cites State v. Ikerman and State v. Setter to
support its position that warrantless blood draws are permissi-
ble in DWI cases, but both of these cases applied Schmerber in
terms ofa search incident to arrest. Setter, 721 S.W.2d 11, 16
(Mo.App. 1986); Ikerman, 698 S.W.2d 902, 904-05 (Mq App.1985).
The State acknowledges, however, that “[wJhile Schmerber casts
its decision in terms of the ‘search incident to arrest’ exception to
the warrant requirement, it has since been read as an applica-
tion of the ‘exigent circumstances’ exception.” Appellant’s
Substitute Brief at 17; See also Berry, 866 F.2d at 891; Rodri- .
guez, 156 P.3d at 776; Johnson, 744 N.W.2d at 342; State v.
Shriner, 751 N.W.2d 538, 543 (Minn.2008); Chapel, 55 F.3d at
(Continued on following page)
15a
argues that State v. LeRette supports its position. 858
S.W.2d 816 (Mo.App.1993). In LeRette, the defendant
was the driver of an automobile involved a serious-
injury accident. Jd. at 817. When the officer arrived
at the scene, emergency personnel were loading the
defendant into an ambulance. Jd. While investigating
the accident, the officer found several beer cans
among the wreckage debris, including a half-empty
can. Jd. Later, at the hospital, the officer found the
defendant with a tube down his throat and unable to
communicate. Jd. The officer directed a hospital
employee to take a blood sample from the defendant
for the purpose of determining his blood-alcohol
content. Id. LeRette justified the warrantless blood
draw based on the facts that the percentage of alcohol
in the bloodstream diminishes with time and that the
delay caused by having to obtain a warrant might
result in the destruction of evidence. The court stated
that “both prongs of the exigent circumstances excep-
tion were established — probable cause that incrimi-
nating evidence would be found and exigent circum-
stances justifying the search.” Jd. at 819. While the
court in LeRette did not specifically identify the
exigent circumstances, it is significant to note that
there was some passage in time for the officer to
remain at the scene to do investigatory work while
1418; State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 402
(1993). To the exteut that Jkerman and Setter interpret
Schmerber to allow a nonconsensual warrantless blood draw
incident to arrest in DWI cases without other exigent circum-
stances, they are no longer to be followed.
16a
the defendant was taken to the hospital. See id. at
817. Further, when the officer later arrived at the
hospital, he was confronted with an individual with
whom he could not communicate. Jd. at 817.
The factual circumstances in LeRette are signifi-
cantly different from the case here, as notably LeRette
involved an accident that required investigation and
a further time delay when the driver was taken to a
hospital for treatment, unlike the routine DWI stop
in this case. LeRette embodied a straight forward
application of the “special facts” of emergency con-
templated by Schmerber, in that the DWI suspect in
LeRette — just as the defendant was in Schmerber —
was involved in a serious-injury accident that caused
a time delay in both the investigation of the accident
and the transportation of the defendant to the hospi-
tal. Id. at 819."
C. This Court Disagrees with Jurisdictions
That Have Adopted a Per Se Exigency
Analysis
In contrast to the forgoing, Wisconsin, Oregon,
and Minnesota have adopted the rationale that the
rapid dissipation of alcohol alone constitutes a suffi-
cient exigency to draw blood without a warrant. State
* To the extent that LeRette could be read as permitting a
warrantless blood draw based on the mere fact that alcohol
diminishes in the blood stream over time, it is no longer to be
followed.
17a
v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 406
(1993); State v. Machuca, 347 Or. 644, 227 P.3d 729,
736 (2010); State v. Netland, 762 N.W.2d 202, 212-13
(Minn.2009). In a 4-3 decision, the Supreme Court of
Wisconsin stated:
Schmerber can be read in either of two ways:
(a) that the rapid dissipation of alcohol in the
bloodstream alone constitutes a sufficient ex-
igency for a warrantless blood draw to obtain
evidence of intoxication following a lawful
arrest for a drunk driving related violation
or crime — as opposed to taking a blood sam-
ple for other reasons, such as to determine
blood type; or (b) that the rapid dissipation of
alcohol in the bloodstream, coupled with an
accident, hospitalization, and the lapse of
two hours until arrest, constitute exigent cir-
cumstances for such a blood draw.
Bohling, 494 N.W.2d at 402. The Wisconsin court
believed that that the more reasonable interpretation
of Schmerber was the former. Jd. It reasoned that the
exigency in Schmerber was caused “solely” by the fact
that alcohol dissipates in a person's blood stream over
time. Id. Bohling held that a warrantless blood draw
is permitted when a person is lawfully arrested for a
drunken-driving related crime and there is a clear
indication that the evidence obtained will produce
evidence of intoxication. Id. at 406."
"In a subsequent 4-3 decision, the Supreme Court of
Wisconsin extended its holding in Bohling to permit nonconsen-
sual, warrantless blood draws even when the defendant has
(Continued on following page)
18a
Similarly, the Supreme Court of Oregon held that
the natural dissipation of a defendant’s blood-alcohol
is an exigent circumstance that will “ordinarily
permit a warrantless blood draw.” Machuca, 227
P.3d at 736 (relying on its prior interpretation of
Schmerber in State v. Milligan, which stated “the
evanescent nature of the evidence sought ... consti-
tutionally justifies [a warrantless blood draw].” 304
Or. 659, 748 P.2d 130, 136 (1988)).
Finally, a divided Supreme Court of Minnesota
held that the natural dissipation of alcohol in the
blood creates “single-factor exigent circumstances”
that justify a warrantless, nonconsensual blood draw.
Netland, 762 N.W.2d at 212-213 (citing State v.
Shriner, 751 N.W.2d 538, 549-50 (Minn.2008)).
Shriner interpreted the Schmerber exigency to rest
only on the fact that the “percentage of alcohol in the
blood begins to diminish shortly after drinking stops,
as the body functions to eliminate it from the sys-
tem.” Shriner, 751 N.W.2d at 545 (quoting Schmerber,
384 U.S. at 770, 86 S.Ct. 1826; internal quotation
marks omitted).
This Court cannot agree with these interpreta-
tions of Schmerber. In Schmerber, the Supreme Court
rejected a per se exigency and explicitly warned
against such expansive interpretations:
consented and submitted to a breath test. State v. Faust, 274
Wis.2d 183, 682 N.W.2d 371, 379 (2004).
19a
It bears repeating, however, that we reach
this judgment only on the facts of the present
record. The integrity of an individual’s per-
son is a cherished value of our society. That
we today hold that the Constitution does not
forbid the States minor intrusions into an
individual’s body under stringently limited
conditions in no way indicates that it permits
... intrusions under other conditions.
Schmerber, 384 U.S. at 772, 86 S.Ct. 1826.
Schmerber requires some exigency beyond the mere
natural dissipation of blood-alcohol evidence. It
explicitly found that the time delay that resulted
from both the investigation of the accident and the
transportation of the defendant to the hospital were
“special facts” that authorized a warrantless blood
draw under the Fourth Amendment. Jd. at 770-71, 86
S.Ct. 1826. To allow a warrantless blood draw in the
absence of such “special facts” would be to ignore the
Supreme Court’s statement in Schmerber that the
Constitution in no way permits warrantless blood
draws “under other conditions.” Jd. at 772, 86 S.Ct.
1826.
IV. Conclusion
Schmerber reaffirms that warrantless intrusions
of the body are not to be undertaken lightly and that
exigency is to be determined by the unique facts and
circumstances of each case. Schmerber directs lower
courts to engage in a totality of the circumstances
analysis when determining whether exigency permits
20a
a nonconsensual, warrantless blood draw. It requires
more than the mere dissipation of blood-alcohol
evidence to support a warrantless blood draw in an
alcohol-related case. Schmerber, 384 U.S. at 770-71,
86 S.Ct. 1826. Officers must reasonably believe that
they are confronted with an emergency where the
delay in obtaining a warrant would threaten the
destruction of evidence. Jd. at 770, 86 S.Ct. 1826. The
question of whether an emergency exists sufficient to
trigger the exigent circumstances exception to the
warrant requirement heavily depends on the exis-
tence of “special facts” and must be determined on a
case-by-case basis. In routine DWI cases, in which no
“special facts” exist other than the natural dissipation
alcohol in the blood, a warrant must be obtained
before such evidence is gathered. This requirement
ensures that the inferences to support the blood draw
be made by a neutral and detached judge “instead of
being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.” John-
son, 333 U.S. at 13-14, 68 S.Ct. 367. The warrant
requirement is especially important when the issue is
“whether or not to invade another’s body in search of
evidence of guilt.” Schmerber, 384 U.S. at 770, 86
S.Ct. 1826.
Defendant’s case is unquestionably a routine
DWI case. Although his body was working naturally
to expunge the alcohol in his system, there were no
other “special facts” of exigency in his case. There was
no accident to investigate and no injuries to attend to
that required the patrolman to expend time, delaying
2la
his request of Defendant to submit to blood-alcohol
testing. The patrolman could not identify any exigent
circumstances and made no attempt to obtain a
search warrant. The nonconsensual, warrantless
blood draw was taken only 25 minutes after Defendant
was stopped. Time-based considerations similar to
those in Schmerber were not present here.” There
were no “special facts” in this case, other than the
natural dissipation of blood-alcohol, that indicated
the arresting patrolman was faced with an emergency
where the delay in obtaining a warrant would threat-
en the destruction of evidence. He was not justified,
therefore, in failing to seek a warrant before drawing
Defendant’s blood over his refusal to consent.”
Defendant’s Fourth Amendment right to be free
from unreasonable searches of his person was vio-
lated, and the trial court’s judgment sustaining De-
fendant’s motion to suppress is affirmed. The State
may go forward in the prosecution of the DWI charge
against Defendant based on evidence gathered in
* For example, in Johnson, more than two and a half hours
had passed between the accident and the warrantless blood
draw. Johnson, 744 N.W.2d at 344. In Schmerber, the exact time
that had elapsed was not reflected in the opinion, but the
investigation of the accident and the transportation of the
defendant to the hospital caused a time delay. Schmerber, 384
U.S. at 770-71, 86 S.Ct. 1826.
* Because the warrantless blood draw in this case was a
violation of Defendant’s Fourth Amendment right to be free from
unreasonable searches, there is no need to address the State’s
arguments based on Missouri’s implied consent law.
22a
conformity with the Constitution. The case is re-
manded.
TEITELMAN, C.J., RUSSELL, BRECKENRIDGE,
FISCHER, STITH, and PRICE, JJ., and ASEL, Sp.J.
concur.
DRAPER, J. not participating.
23a
2011 WL 2455571
Missouri Court of Appeals,
Eastern District,
Division Four.
STATE of Missouri, Appellant,
v.
Tyler G. McNEELY, Respondent.
No. ED 96402.
June 21, 2011.
Transferred to 2012 WL 135417.
Appeal from the Circuit Court of Cape Girardeau
County, Benjamin F. Lewis, Judge. John N. Koester,
Prosecuting Atty. For Cape Girardeau County, Jack-
son, MO, for appellant.
Stephen C. Wilson, Cape Girardeau, MO, for re-
spondent.
ROBERT G. DOWD, JR., Judge.
The State of Missouri appeals from the trial
court’s grant of Tyler G. McNeely’s (“Defendant”) mo-
tion to suppress evidence. Defendant was charged with
driving while intoxicated, Section 577.010, RSMo 2000."
In its sole point, the State argues the trial court erred
in granting Defendant’s motion to suppress the blood
sample seized from Defendant’s person after he was
arrested for driving while intoxicated because the
sample was taken without Defendant’s consent and
* All further statutory references are to RSMo 2000, unless
otherwise indicated.
24a
without a search warrant. We would reverse; how-
ever, in light of the general interest and importance of
the issues involved, we transfer the case to the Mis-
souri Supreme Court, pursuant to Supreme Court
Rule 83.02.
On October 3, 2010, Corporal Mark Winder (“Cor-
poral Winder”) observed Defendant driving above the
posted speed limit. As he was following Defendant
before he pulled him over, Corporal Winder observed
Defendant crossing the center line of the road three
times. When he made contact with Defendant, he
detected “a strong odor of intoxicants on his breath
and his eyes were glassy and bloodshot.” Defendant
stated he had a couple of beers, and when Corporal
Winder asked him to step out of the vehicle, he was
unstable on his feet and swayed while maintaining
his balance.
Corporal Winder administered four field sobriety
tests on Defendant, and Defendant performed poorly
on each of them. Defendant refused to give a breath
sample into a portable breath tester and was subse-
quently placed under arrest for driving while intoxi-
cated.
Corporal Winder began to transport Defendant
to the Cape Girardeau County Jail to administer
a breath test, but Defendant stated he would refuse
to take a breath test. Thus, Corporal Winder trans-
ported Defendant to the St. Francis Medical Center
Lab to obtain a blood sample.
25a
Corporal Winder read Defendant the Missouri
Implied Consent and asked that he provide a blood
sample. Defendant refused. Corporal Winder informed
Defendant that, pursuant to Missouri law, he was
going to obtain the blood sample against his refusal.
At that point, a lab technician withdrew a blood
sample from Defendant. The sample showed Defen-
dant’s blood-alcohol level was 0.154 percent. Corporal
Winder immediately took possession of the sample
and transported Defendant to the Cape Girardeau
County Jail. After arriving at the jail, Corporal Winder
again read Defendant the Missouri Implied Consent
and asked that he submit to a breath test, but De-
fendant again refused.
The State filed charges against Defendant for
driving while intoxicated. Defendant subsequently
filed a motion to suppress the blood sample taken
from Defendant because it was taken from Defendant
without his consent and without a warrant.
In ruling on the motion, the trial court found this
case did not involve exigent circumstances and,
relying on Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826, 16 L.Ed.2d 908 (1966), it found the Fourth
Amendment requires either a warrant or exigent cir-
cumstances to withdraw blood without consent. The
trial court noted that the holding in Schmerber, where
the results of the blood test were found to be admis-
sible, was limited to the “special facts” of that case,
which included a delay of two hours while the officer
investigated the scene of an accident before delivering
the defendant to the hospital and the court’s specific
26a
finding that there was no time to seek out a magis-
trate and secure a warrant. As a result, the trial court
granted Defendant’s motion to suppress evidence
obtained by the warrantless blood withdrawal in this
case where there was no accident and no substantial
delay between the traffic stop and the blood draw and
both a prosecutor and judge were readily available to
issue a search warrant. The State appeals the sup-
pression of the evidence.
In its sole point, the State argues the trial court
erred in granting Defendant’s motion to suppress the
blood sample seized from Defendant without his con-
sent and without a warrant after he was arrested for
driving while intoxicated because the legislature
eliminated the “none shall be given” language from
Section 577.041, and that was the only provision un-
der Missouri law barring police officers from obtain-
ing nonconsensual and warrantless blood samples.
We agree.
Our review of a trial court’s ruling on a motion to
suppress is limited to a determination of sufficiency
of the evidence to sustain the trial court’s finding.
State v. Kriley, 976 S.W.2d 16, 19 (Mo.App. W.D.1998).
At the hearing on the motion, the State has the bur-
den of going forward with the evidence and the risk of
non-persuasion to show by a preponderance of the
evidence that a motion to suppress should be over-
ruled. Section 542.296.6; State v. Cook, 273 S.W.3d
562, 567 (Mo.App. E.D.2008). The burden is placed
upon the State because warrantless searches are pre-
sumptively unreasonable. State v. Weddle, 18 S.W.3d
27a
389, 396 (Mo.App. E.D.2000). We will affirm the judg-
ment of the trial court if there is sufficient evidence
which would support the trial court’s decision to sus-
tain the motion to suppress on any ground alleged in
the defendant’s motion. Kriley, 976 S.W.2d at 19. We
will only reverse the trial court’s judgment if it is
clearly erroneous. Jd. The trial court’s judgment is
clearly erroneous if we are left with the definite and
firm belief that a mistake has been made. Id.
In reviewing the trial court’s decision to grant a
motion to suppress, we view the evidence presented
and all reasonable inferences drawn therefrom in the
light most favorable to the trial court’s order and dis-
regard all evidence and inferences to the contrary.
State v. Abeln, 136 S.W.3d 803, 808 (Mo.App. W.D.2004).
We defer to the trial court’s factual findings, and we
review de novo whether the Fourth Amendment was
violated as a matter of law under the facts found by
the trial court. Jd.
The Fourth Amendment to the United States
Constitution guarantees that citizens will not be sub-
ject to unreasonable searches or seizures. U.S. Const.
Amend. IV; Simmons v. State, 247 S.W.3d 86, 90
(Mo.App. S.D.2008). A search conducted without a
warrant is presumptively unreasonable. Jd. An excep-
tion to the general rule that a search requires a war-
rant exists when exigent circumstances are present.
Id. Exigent circumstances exist if the time needed to
obtain a warrant would endanger life, allow a suspect
to escape, or risk the destruction of evidence. Id. The
overriding function of the Fourth Amendment is to
28a
protect personal privacy and dignity against unwar-
ranted intrusion by the State. Schmerber, 384 U.S. at
767, 86 S.Ct. 1826.
Here, we are dealing with questions of law and,
thus, our review is de novo. The State contends we
are confronted with a two-prong inquiry here: (1) is a
nonconsensual and warrantless blood draw under
these circumstances a reasonable search and seizure
under the Fourth Amendment; and (2) if so, does the
Missouri implied consent law prohibit such noncon-
sensual and warrantless tests? We will begin with the
first question.
The watershed case in this area of law is
Schmerber. In Schmerber, the defendant was con-
victed of driving an automobile while under the in-
fluence of intoxicating liquor. Schmerber, 384 U.S. at
758, 86 S.Ct. 1826. The defendant had been arrested
for driving while intoxicated at a hospital while re-
ceiving treatment for injuries suffered in an accident
involving the car he had been driving. Jd. At the
direction of a police officer, a blood sample was taken
from the defendant by a doctor at the hospital, and
this sample showed he was intoxicated. Jd. at 758-59,
86 S.Ct. 1826. The report of this analysis was admit-
ted at trial, even though the defendant objected
because the blood had been drawn despite his refusal.
Id. In affirming the admission of the blood sample at
trial, the Supreme Court noted the officer might have
reasonably believed that he was confronted with an
emergency, in which the delay necessary to obtain a
warrant threatened the destruction of evidence under
29a
the circumstances because the percentage of alcohol
in the blood diminishes as the body functions to
eliminate it from the system. Jd. at 770-71, 86 S.Ct.
1826. The Supreme Court noted “special facts” of this
case included the fact that “time had to be taken to
bring the accused to the hospital and to investigate
the scene of an accident, [and] there was no time to
seek out a magistrate and secure a warrant.” Jd. The
Supreme Court found the defendant’s rights under
the Fourth Amendment had not been violated. Jd. at
772, 86 S.Ct. 1826.
While the Court in Schmerber ostensibly relied
on the “search incident to arrest” exception to the
warrant requirement, subsequent courts have found
it can be read as an application of the exigent circum-
stances exception to the warrant requirement. U.S. v.
Berry, 866 F.2d 887, 891 (6th Cir.1989). The court in
Berry noted because “evidence of intoxication begins
to dissipate promptly, it is evident in this case that
there were exigent circumstances indicating the need
to take such action.” Jd. While Berry involved a war-
rantless blood draw at the hospital some time after a
one car accident and the defendant was unconscious
and unable to give consent, the court did not justify
its ruling that the blood draw occurred under exigent
circumstances with any “special facts.” Jd. The court
merely stated “[tJhe officer had ample cause to believe
that defendant was under the influence of alcohol.
The method of testing was safe and reasonable and
administered by qualified personnel. It was done only
30a
after there was a reasonable basis to effect this
‘search and seizure.’” Jd. at 890.
In State v. Faust 274 Wis.2d 183, 682 N.W.2d
371, 373 (2004), the Supreme Court of Wiscdnsin
found “the rapid dissipation of alcohol in the blood-
stream of an individual arrested for a drunk driving
related offense constitutes an exigency that justifies
the warrantless[,] nonconsensual test of that individ-
ual’s blood.” In that case, the court went even further
by saying a warrantless, nonconsensual blood test
was permissible because the presumptively valid
chemical sample of the driver’s breath that the police
already had did not extinguish the exigent circum-
stances justifying the warrantless, nonconsensual blood
draw. Id. The facts of that case involved a routine
traffic stop, executed because the license plates were
not registered to the vehicle. Jd. at 374. Upon ap-
proaching the vehicle, the officer smelled a strong
odor of intoxicants and observed the driver slurring
his speech. Jd. The officer then administered a field
sobriety test that the driver failed. Jd. The driver
then volunteered to submit to a preliminary breath
test, which indicated his blood alcohol concentration
was above the legal limit. Faust, 682 N.W.2d at 374.
The driver was then placed under arrest and taken to
police headquarters where he performed another
breath test, indicating his blood alcohol content was
above the legal limit. Jd. The officer then requested
that the driver submit to a blood test, but the driver
refused, at which point the officer transported him to
a hospital and had a phlebotomist administer a blood
3la
test without ever seeking a warrant. Jd. The results
of the blood test were admitted into evidence and
showed the driver had a blood alcohol content above
the legal limit. Jd. The court in Faust also rejected an
argument that Defendant puts forth in this case, that
is, that Schmerber should be narrowly interpreted
and its holding limited to cases with “special facts,”
finding instead that “exigent circumstances exist
based solely on the fact that alcohol rapidly dissipates
in the bloodstream.” Id. at 377.
Missouri courts have recognized and adopted the
holding in Schmerber. In State v. Ikerman, 698 S.W.2d
902, 904-05 (Mo.App. E.D.1985), the court noted
Schmerber supports the general principle that the
warrantless extraction of a blood sample without con-
sent but incident to a lawful arrest is not an unconsti-
tutional search and seizure and that the results of a
blood test performed thereon are admissible in evi-
dence. Thus, the implied consent statute authorizing
a “search,” that is, the extraction of blood for a blood
alcohol test, without a warrant or actual consent does
not offend the constitutional guarantees of due pro-
cess or of freedom from unreasonable search and
seizure of one who has first been arrested. Id.
Further, in State v. Lerette, 858 S.W.2d 816, 819
(Mo.App. W.D.1993), a trooper arrived at the scene of
a one car accident and spoke with the passenger in
the vehicle who smelled of intoxicants and who indi-
cated that the defendant had been driving the car
at the time of the accident. The trooper also found
several beer cans strewn among the wreckage debris
32a
including a partially full beer can in a Budweiser
“coolie” holder next to the wrecked vehicle. Jd. The
accident involved a single vehicle driven by the de-
fendant that for no apparent reason ran 30 feet off
the roadway, rolling and flipping over and resulting
in serious injuries to the defendant. Id. The court
found that considering that the trooper was aware of
all of this evidence after he arrived at the scene, he
had ample cause to believe that the defendant was
under the influence of alcohol while he was driving
his car at the time of the accident. Jd. The court found
these facts establish that the trooper had probable
cause to believe that incriminating evidence would be
found if the defendant’s blood were tested. Jd. When
the trooper arrived at the hospital, the trooper could
not tell if the defendant was conscious or not, ‘but he
could not communicate with him and therefore, could
not obtain his consent to a blood test. Jd. The trooper
directed hospital personnel to conduct a blood test
anyway, and the results of the blood test were later
suppressed by the trial court on the defendant’s mo-
tion. Id. That order was reversed, and the court noted
considering that the percentage of alcohol in
the bloodstream diminishes with time and
that the delay caused by having to obtain a
warrant might result in the destruction of
evidence, this court finds that there were ex-
igent circumstances warranting [the trooper’s]
actions and, as such, it would have been un-
reasonable to require him to take the time to
obtain a search warrant.
Id.
33a
In Faust, Berry, and Lerette, where the courts
followed Schmerber in applying the exigent circum-
stances exception to the warrant requirement, the
courts did not require any “special facts” to justify the
application of the exigent circumstances exception.
Instead, they merely rely on the evanescence of blood
alcohol concentrations as creating exigent circum-
stances such that no warrant is needed to conduct a
search. We note both Berry and Lerette involved de-
fendants who were unconscious or unable to give
consent, but with respect to getting consent while
evidence of alcohol is metabolized, an inability to give
consent is effectively the same as a refusal of consent;
the police are forced to either get a warrant or justify
a blood test under exigent circumstances. We have no
reason to require “special facts” in addition to the
facts that the officer had ample cause to reasonably
believe defendant was under the influence of alcohol
and that Defendant’s blood alcohol concentration
would continue to decrease, thus destroying evidence,
the longer the police waited to conduct a blood test.
We also note that while we are dealing with an
intrusion into a person’s body to obtain their blood,
the Court in Schmerber noted extraction of blood
samples for testing is a highly effective means of
determining the degree to which a person is under
the influence of alcohol. Schmerber, 384 U.S. at 771,
86 S.Ct. 1826. Further, writing over forty years ago,
the Court noted “such tests are a commonplace in
these days of periodic physical examination and ex-
perience with them teaches that the quantity of blood
34a
extracted is minimal, and that for most people the
procedure involves virtually no risk, trauma, or pain.”
Id.
Thus, we find Defendant’s Fourth Amendment
rights were not violated by the warrantless blood
draw in this case.
We now turn to the question of whether the
Missouri implied consent law prohibits such noncon-
sensual and warrantless tests. To further attempt to
rid the highways of drunk drivers, our legislature
enacted, like many other states, an “implied consent”
statute. The theory behind this law is that the use of
public streets and highways is a privilege and not a
right, and that a motorist, by applying for and accept-
ing an operator’s license, “impliedly consents” to sub-
mission to a chemical analysis of his blood alcohol
level when charged with driving while intoxicated.
Gooch v. Spradling, 523 S.W.2d 861, 865 (Mo.App.
W.D.1975). Section 577.020, Cum.Supp.2009, the im-
plied consent statute, states in pertinent part:
Any person who operates a motor vehicle up-
on the public highways of this state shall be
deemed to have given consent to, subject to
the provisions of sections 577.019 to 577.041,
a chemical test or tests of the person’s
breath, blood, saliva or urine for the purpose
of determining the alcohol or drug content of
the person’s blood pursuant to the following
circumstances:
(1) If the person is arrested for any offense
arising out of acts which the arresting officer
35a
had reasonable grounds to believe were com-
mitted while the person was driving a motor
vehicle while in an intoxicated or drugged
condition; .. .
3
The test shall be administered at the direc-
tion of the law enforcement officer whenever
the person has been arrested or stopped for
any reason.
Along with the implied consent statute, the leg-
islature enacted a “refusal” statute, Section 577.041,
RSMo Cum.Supp.2010 which currently provides, in
relevant part:
If a person under arrest, or who has been
stopped pursuant to subdivision (2) or (3) of
subsection 1 of section 577.020, refuses upon
the request of the officer to submit to any
test allowed pursuant to section 577.020,
then evidence of the refusal shall be admis-
sible in a proceeding pursuant to section
565.024, 565.060, or 565.082, RSMo, or sec-
tion 577.010 or 577.012.
Previously, this provision provided:
If a person under arrest, or who has been
stopped pursuant to subdivision (2) or (3) of
subsection 1 of section 577.020, refuses upon
the request of the officer to submit to any
test allowed pursuant to section 577.020,
then none shall be given and evidence of the
refusal shall be admissible in a proceeding
pursuant to section 565.024, 565.060, or
36a
565.082, RSMo, or section 577.010 or
577.012.
Section 577.041.1 Cum.Supp.2009. (emphasis added).
The previous version of Section 577.041 has been
interpreted in State v. Trumble, 844 S.W.2d 22, 24
(Mo.App. W.D.1992), where the court noted the stat-
ute meant a motorist “has the present, real option
either to consent to the test or refuse it.” The court
further found the statute provided that if one chooses
not to comply with the arresting officer’s request, by
refusing to take a chemical test, then evidence of that
refusal may be admissible in a proceeding against the
motorist and further that the motorist’s license may
be subject to revocation. Jd. The court also noted
Section 577.041 provided the statutory requirements
which must be satisfied in order to admit an ar-
restee’s refusal into evidence, and, as a result, that
section was more consistently read as providing a
resource for the state in the prosecution of drunk
driving cases rather than creating a “right” for an
arrested motorist to refuse the test. Id.
However, no Missouri case has dealt directly with
the import of the removal of the words “none shall be
given” from Section 577.041. In State v. Smith, 134
S.W.3d 35, 36-37 (Mo.App. E.D.2003), after arresting
a driver for driving while intoxicated, an officer ob-
tained a search warrant to draw blood after the
driver refused to submit to a chemical test. The court
in that case interpreted the “none shall be given”
language of Section 577.041 and concluded that the
37a
provisions of Section 577.041 do not prohibit the
admission of chemical test results obtained by war-
rant from a person arrested for driving while intoxi-
cated who has refused a police officer’s request to
submit to a test. Jd. at 38. The court noted the com-
mand that “none shall be given” was addressed only
to the authority of law enforcement officers to proceed
with a warrantless test under Chapter 577. Id. at 40.
Thus, the court in Smith found the “none shall be
given” language prevented law enforcement officers
from obtaining nonconsensual blood draws without a
court-issued warrant. Subsequent to that holding, the
legislature amended Section 577.041 to remove the
words “none shall be given” from the statute. Thus,
we are presented with the question of whether law
enforcement officers are now permitted to obtain war-
rantless, nonconsensual blood draws when they have
reasonable suspicion that a person is driving while
intoxicated. We note the legislature is presumed to
know the state of the law when it enacts a statute.
State v. Prince, 311 S.W.3d 327, 334 (Mo.App. W.D.2010).
Further, the legislature is presumed to intend what
the statute says, and we give effect to the words
based on their plain and ordinary meaning. /d. at
334-35. In light of our analysis above, we would con-
clude because of the recent revision of Section
577.041, removing the words “none shall be given,”
law enforcement officers are now permitted to order a
warrantless blood draws when they have reasonable
suspicion that a person is driving while intoxicated.
However, no Missouri case has yet addressed the
38a
import of the removal of the words “none shall be
given” from Section 577.041.
We would find the trial court erred in granting
Defendant’s motion to suppress the blood sample
seized from Defendant without his consent and with-
out a warrant after he was arrested for driving while
intoxicated. However, in the light of the fact that no
Missouri case has yet addressed the import of the
removal of the words “none shall be given” from Sec-
tion 577.041, which we believe involves a significant
departure from current case law as represented by
the Smith case, and the general interest and im-
portance of the issues involved, we transfer the case
to the Missouri Supreme Court, pursuant to Supreme
Court Rule 83.02.
KURT S. ODENWALD, PJ. and GARY P.
KRAMER, Sp.J., concur.
39a
IN THE CIRCUIT COURT OF CAPE GIRARDEAU
COUNTY, MISSOURI DIVISION II
STATE OF MISSOURI, )
PLAINTIFF, )
va. ) CASE NO.
) 10CG-CR01849-01
TYLER G. MCNEELY, )
DEFENDANT.)
ORDER AND JUDGMENT ON
DEFENDANT’S MOTION TO SUPPRESS
The Defendant moved to suppress the results of a
blood test taken without his consent and without a
search warrant. Evidence on the motion was adduced
on January 14, 2011 and the matter was taken under
advisement pending receipt of briefs. Now, on the
third day of March, 2011, the Court makes the follow-
ing findings of fact, conclusions of law and judgment.
THE FACTS
Corpora] Mark Winder was on patrol in Cape
Girardeau County at 2:08 A.M. on Sunday, October 3,
2010. He was northbound on Kingshighway in the
City of Cape Girardeau when his radar indicated that
the Defendant’s vehicle was speeding. Winder made a
U-turn and stopped the Defendant, Tyler G. McNeely.
Winder observed that the Defendant showed
signs of intoxication, which he confirmed with field
sobriety tests. The Defendant declined to submit to a
40a
test with a portable breath testing device. Winder
arrested the Defendant and placed him in his patrol
car at 2:18 A.M..
While en route to the Highway Patrol office at
the Cape Girardeau County Sheriff’s office in Jack-
son, Winder asked the Defendant if he would submit
to a breath test at the sheriff’s office. The Defendant
said that he would not.
St. Francis Medical Center in Cape Girardeau
was nearby and Corporal Winder drove there. Winder
read the implied consent form to the Defendant. The
Defendant said that he would not consent to a blood
test for alcohol. Winder noted the time of the refusal
as 2:33 A.M on the implied consent form. Winder
directed the lab technician to draw the Defendant’s
blood and a sample was taken.
The Defendant was transported to the jail where
he was again read the implied consent law and re-
fused to take a breath test. Winder noted the second
refusal at 2:55 A.M. No effort was made at any time
to obtain a search warrant to procure the blood
sample. Winder testified that he had been instructed
that due to changes in the law, a warrant was not
necessary to obtain the Defendant’s blood sample.
Winder testified that he was sure that there was
a prosecutor on call when he stopped the Defendant.
He testified that the Cape Girardeau County Prose-
cutor hes prepared an affidavit form for officers to use
for a search warrant for blood of DWI suspects. He
testified that he had obtained search warrants in
4la
these circumstances less than ten times but he was
never unable to obtain a warrant due to the unavail-
ability of a prosecutor or a judge. Further, Winder
testified that there was no reason to believe that he
could not have obtained a search warrant due to the
unavailability of a prosecutor or a judge. The Court
received evidence of six cases in which search war-
rants for blood were obtained in Cape Girardeau
County after regular business hours.
Sergeant Blaine Adams of the Missouri Highway
Patrol testified that the Highway Patrol issued a
communication instructing that warrantless searches
for blood were only to be used in exigent circumstances
and then only in driving while intoxicated cases that
resulted in death or serious injury. Further, the patrol
had instructed that warrantless searches were to be
conducted only after expending all reasonable means to
obtain a search warrant. The communication further
recommended that zone sergeants (like Adams) meet
with local prosecutors to discuss the procedure for
when warrantless searches would be appropriate.
This communication relied in part on the amendment
(effective prior to the Defendant’s arrest) of §577.041
RSMo. to delete the words “then none shall be given”
from the implied consent law.
Sergeant Adams testified that he met with the
Cape Girardeau County Prosecuting Attorney whose
advice was the opposite of the Highway Patrol inter-
office communication. According to Adams, the prose-
cutor instructed him that, “[I]f it’s a standard DWI
arrest or if it’s a motor vehicle accident with no
42a
injuries and they refuse, to go ahead and draw their
blood. [The Prosecutor] said if it was a vehicle acci-
dent with injuries, he would prefer to get a search
warrant...”
As to the exigency of the circumstances of a DWI
arrest, Sergeant Adams was of the opinion that “any
DWI arrest is exigent circumstances because you
have evidence being destroyed with every passing
minute.”
Sergeant Adams agreed that the Highway Patrol
communication recommended warrantless searches
only in exigent circumstances where there was a
manslaughter or vehicular assault with serious
injuries. He also agreed that the Prosecuting Attor-
ney’s instructions were the opposite: that warrantless
searches were appropriate for run of the mill DWI’s
but in a serious case the troopers should apply for a
warrant. Sergeant Adams agreed that the Defend-
ant’s case was exactly a run of the mill case.
CONCLUSIONS OF LAW
In Schmerber v. California, 384 U.S. 757 (1966).
the United States Supreme Court affirmed the de
fendant’s conviction for driving while intoxicated
Schmerber had challenged the State’s warrantles:
withdrawal of a blood sample following his arrest
The court found that the blood draw did not violat.
Schmerber’s Fourth Amendment rights because i:
was a search incident to his arrest. However, th«
court also found that this was an emergency situatior
43a
because there was a delay of about two hours for the
officer to investigate the scene of the accident and for
the defendant to be delivered to the hospital and that
the evidence of alcohol in his blood was being dimin-
ished by normal bodily function. The court specifically
found that “there was no time to seek out a magis-
trate and secure a warrant. Given these special facts,
we conclude that the attempt to secure evidence of
blood-alcohol content in this case was an appropriate
incident to petitioner’s arrest.” Schmerber at 771.
The facts before this court are substantially
different that the facts in Schmerber. There was no
accident. There was no investigation at the scene of
the stop other than the field sobriety tests, which
took less than ten minutes. The defendant was not
injured and did not require emergency medical
treatment. This was not an emergency, it was a run of
the mill driving while intoxicated case. As in all cases
involving intoxication, the Defendant’s blood alcohol
was being metabolized by his liver. However, a prose-
cutor was readily available to apply for a search
warrant and a judge was readily available to issue a
warrant. Schmerber is not applicable because the
“special facts” of that case, the facts which estab-
lished the exigent circumstances, did not exist in this
case to justify the warrantless search.
The next question is whether, as Corporal Winder
believed, amendment of §577.041 RSMo. made it
unnecessary to obtain a search warrant. The statute
was amended in 2010, well after the Court of Appeals
44a
issued its opinion in State v. Smith, 134 S. W.3d 35
(Mo.App., E.D., 2004).
In Smith, the defendant was arrested for driving
while intoxicated, refused the breath test and was
then subjected to a blood test pursuant to a search
warrant. The trial court held that the implied consent
law prohibited a blood test ordered by a search war-
rant if the defendant refused the breath test. The
statute in effect at that time stated, “If a person
under arrest ... refuses ... to submit to any test
allowed pursuant to §577.020, then none shall be
given ... ” The Court of Appeals held that §577.041
was addressed to the authority of law enforcement
officers to administer an alcohol test after a refusal.
The court held that the statute was not addressed to
the authority of courts issuing search warrants.
Smith, at 40.Therefore the trial court’s order sup-
pressing the evidence was reversed.
What, then, is the effect of the legislature remov-
ing the words, “then none shal] be given” from
§577.041? Clearly, it removes any doubt that a blood
test may be compelled by search warrant after a
refusal by a drunken driving suspect, and so, the
statute is now consistent with the holding in Smith.
The amendment would also reverse part of the
holding of State v. Ikerman, 698 S.W.2d 902 (Mo.
App., E.D., 1985). In Ikerman, the police obtained a
warrantless blood sample incident to a de facto ar-
rest. The Court of Appeals held (among other things)
that the test result was inadmissible because the
45a
defendant refused the test and §577.041 required
that where the warrantless test was refused, “none
shall be given.” Those four words have been deleted,
therefore, the amendment allows police to obtain a
warrantless blood draw without consent — but only
under certain circumstances.
The amendment of §577.041 does not and cannot
overcome the holding in Schmerber v. California, and
the holdings of the Missouri courts, that the Fourth
Amendment requires either a warrant or exigent
circumstances to withdraw blood without consent.
“[A]bsent consent or exigent circumstances, law
enforcement officers must obtain a warrant to con-
duct a search and seizure that would invade a consti-
tutionally — protected privacy interest.” Smith, at 37.
Although the Highway Patrol and the Prosecut-
ing Attorney maintain that a search warrant is not
necessary to draw blood after a DWI arrest, both
hedge their advice to law enforcement officers about
the circumstances when a warrant is not necessary.
They do not have full confidence in their positions,
and justly so. None of the authorities submitted on
this issue have held, on their own facts, that an
officer may obtain a warrantless blood draw on an
ordinary driving while intoxicated arrest when a
warrant could be procured in a timely manner. None
of the authorities submitted on this issue have held
that the mere natural metabolization of alcohol from
the defendant’s blood — standing alone — amounts
to exigent or special circumstances which justify a
46a
warrantless blood draw under Schmerber v. Califor-
nia.
The motion is therefore sustained and the evi-
dence obtained by the warrantless blood withdrawal
is ordered suppressed.
3/03/2011 /s/
DATE BENJAMIN F. LEWIS,
CIRCUIT JUDGE
cc: Mr. Koester
Mr. Wilson
47a
(SEAL)
CLERK OF THE SUPREME COURT
STATE OF MISSOURI
POST OFFICE BOX 150
JEFFERSON CITY, MISSOURI
65102
March 6, 2012
BILL L. THOMPSON TELEPHONE
INTERIM CLERK (573) 751-4144
Mr. John N. Koester, Jr. via e-filing system
Office of Prosecuting Attorney
100 Court Street
Jackson, MO 63755
In Re: State of Missouri, Appellant, vs.
Tyler G. McNeely, Respondent.
Missouri Supreme Court No. SC91850
Dear Mr. Koester:
Please be advised the Court issued the following
order on this date in the above-entitled cause: “Appel-
lant’s motion for rehearing overruled.” Draper, J., not
participating.
Very truly yours,
BILL L. THOMPSON
/s/ Cynthia L. Turley
Cynthia L. Turley
Deputy Clerk, Court en Banc
Cc:
Mr. Stephen C. Wilson
Mr. Talmage E .Newton, IV
Mr. Stephen D. Bonney
Mr. Anthony E. Rothert
Mr. James B. Farnsworth
via e-filing system
via e-filing system
via e-filing system
via e-filing system
via e-filing system
OPPOSITION
BRIEF
RECORD 11-1425 i |
BRIEFS |
IN THE oe
Supreme Court of the Merited States
ee Be
STATE OF MISSOURI
Petitioner,
—Y,——
TYLER G. MCNEELY,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE MISSOURI SUPREME COURT
BRIEF IN OPPOSITION
Stephen Douglas Bonney Steven R. Shapiro
ACLU Foundation of Kansas Counsel of Record
& Western Missouri Ezekiel R. Edwards
3601 Main Street Hayley E. Horowitz
Kansas City, MO 64111 American Civil Liberties
(816) 994-3311 Union Foundation
Anthony E. Rothert a — ape
ACLU of Eastern Missouri (212) rartny 0004
454 Whittier Street sshapise@acia.crs
St. Louis, MO 63108
(314) 652-3114 Stephen C. Wilson
Wilson & Mann, L.C.
2907 Independence Street,
Suite C
P.O. Box 512
Cape Girardeau, MO 63702-0512
(573) 651-1950
Library of Congress
dope Lars
TABLE OF CONTENTS
Re Fr BI I cctccscccctctssctcnesccssccsscosssens iil
SPIES IT EID cecinicernescsossscnssscccesccsceccnnceses 1
COUNTER-STATEMENT OF THE CASE................. 2
REASONS FOR DENYING THE PETITION ........... 5
I.
II.
THIS CASE IS AN INAPPROPRIATE
VEHICLE FOR THE COURT TO
DETERMINE WHEN EXIGENT
CIRCUMSTANCES JUSTIFY A
NONCONSENSUAL AND WARRANTLESS
SE? GIT ccncicccsonnscccccnstnesscasnoscesnessesssenese 5
A. The Arresting Officer In This Case Did
Not Act On The Basis Of Exigent
Circumstances In Ordering A
Technician To Draw Respondent's Blood
Without Consent Or A Warrant. .......... 6
B. To The Extent That Resolution Of The
Exigency Question Turns On The
Science Of Alcohol Dissipation, The
Record In This Case Is Insufficient For
A Full And Fair Evaluation Of The
RR ee eee ee RF Hn eee 8
C. Resolution Of The Question Presented
Will At Best Have An Uncertain Impact
On The Outcome Of This Case. .......... 12
MOST JURISDICTIONS RECOGNIZE THAT
FACTORS OTHER THAN ALCOHOL
DISSIPATION ARE RELEVANT IN
DETERMINING WHETHER EXIGENCY
JUSTIFIES A WARRANTLESS BLOOD
Ey teitiniicnnenicnisanndintannsicinnmmnemiebensaeeaieepesinin 14
lil. THE MISSOURI SUPREME COURT
CORRECTLY CONSTRUED SCHMERBER V.
CALIFORNIA TO REQUIRE MORE THAN
THE MERE DISSIPATION OF ALCOHOL
FROM THE BODY TO JUSTIFY A
WARRANTLESS BLOOD DRAW UNDER
THE LIMITED EXIGENT CIRCUMSTANCES
EXCEPTION TO THE WARRANT
REQUIREMENT OF THE FOURTH
IE iinscrtsisnintedisinsntniinicaaniientninnednnen 23
A. Exigent Circumstances Are
Traditionally Assessed Based On The
Totality Of The Circumstances. .......... 24
B. The Missouri Supreme Court Correctly
Applied Schmerber To The Facts Of
ESRI ener ver nae Dae 26
TD iciesiicsidiaesicatiiesciniisctitnienieinaaisatanionitesaiaulesin 29
TABLE OF AUTHORITIES
CASES
Arizona v. Gant, 556 U.S. 332 (2009)....................06. 26
Bristol v. Commonwealth,
RF ee 16
Deeds v. State, 27 So.3d 1135 (Miss. 2009).............. 17
Graham v. Connor, 490 U.S. 386 (1989) .................. 24
Hammer v. Gross, 932 F.2d 842 (9th Cir. 1991)...... 20
Kentucky v. King, --- U.S. ---,
I i a reetduntaineeaatintll 28
Kirk v. Louisiana, 536 U.S. 635 (2002).................... 28
Mapp v. Ohio, 367 U.S. 643 (1961) .................ceceeeees 28
Marshall v. Columbia Lea Regional Hosp..,
S74 FB TSS CASI CAP. BEG wvcoccccccecseccescsccscccceses 19
Mincey v. Arizona, 437 U.S. 385 (1978) ............... 8, 26
Nelson v. City of Irvine,
143 F.3d 1196 (9th Cir. 1998)......................... 20, 23
People v. MacCallum, 925 P.2d 758 (Colo. 1996) .... 16
People v. Schall, 59 P.3d 848 (Colo. 2002) ............... 16
People v. Thompson, 135 P.3d 3 (Cal. 2006)...... 17, 18
People v. Wehmas,
246 P.3d 642 (Colo. 2010).............ccccseccseess 15, 16, 23
Richards v. Wisconsin, 520 U.S. 385 (1997) ...... 25, 26
Roaden v. Kentucky, 413 U.S. 496 (1973) ................ 24
Schmerber v. California,
a ne a iatentenancemernmomniinad passim
State v. Baker, 502 A.2d 489 (Me. 1985).................. 20
State v. Bohling 494 N.W.2d 399 (Wis. 1993).......... 21
State v. Cocio, 709 P.2d 1336 (Ariz. 1985)............... 20
State v. Engesser, 661 N.W.2d 739 (S.D. 2003) ....... 17
State v. Entrekin, 47 P.3d 336 (Haw. 2002)............. 21
State v. Faust,
682 N.W.2d 371 (Wis. 2004).................... 21, 22, 23
State v. Hoover, 916 N.E.2d 1056 (Ohio 2009)......... 22
State v. Johnson, 744 N.W.2d 340 (lowa 2008) ....... 16
State v. Kimball, 361 N.W.2d 601 (N.D. 1985)........ 18
State v. Lamont, 631 N.W.2d 603 (S.D. 2001) ......... 17
State v. Machuca, 227 P.3d 729 (Or. 2010).............. 21
State v. Mullins, 489 S.E.2d 923 (1997)...........000..... 15
State v. Netland, 762 N.W.2d 202 (Minn. 2009)...... 22
State v. Rodriguez, 156 P.3d 771 (Utah 2007)......... 16
State v. Shepherd,
840 P.2d 644 (Okla. Crim. App. 1992)... 16
State v. Shriner, 751 N.W.2d 538 (Minn. 2009)....... 22
State v. Stern, 846 A.2d 64 (N.H. 2004)................... 18
State v. Stone, ---S.E.2d ---,
2012 WL 2369483 (W. Va. June 21, 2012) ........... 15
State v. Wong, 486 A.2d 262 (N.H. 1984)................ 18
State v. Woolery, 775 P.2d 1210 (Idaho 1989).......... 21
United States v. Banks, 540 U.S. 31 (2003)......... 7,24
United States v. Berry,
866 F.2d 887 (6th Cir. 1989) ................:ccccccccrreseees 20
1V
United States v. Eagle,
498 F.3d 885 (8th Cir. 2007)........................04: 18, 19
United States v. Prouse,
945 F.2d 1017 (8th Cir. 1991)......................... 19, 20
United States v. Reid,
929 F.2d 990 (4th Cir. 1991)....................2...00 20, 23
United States v. Resendiz-Ponce,
ici ewensamicnnnconedenne 14
Winston v. Lee, 470 U.S. 753 (1985)................... 25, 26
STATUTES
FE 14
Alaska Stat. Ann. § 28.35.032(a).....................-eeee00 15
Alaska Stat. Ann. § 28.35.035(a)...........0.cecc0cc0e0ee0eee- 15
Ariz. Rev. Stat. Ann. § 28-1321(D)(1) ...................... 14
Conn. Gen. Stats. Ann. § 14-227b(b)........................ 15
Conn. Gen. Stats. Ann. § 14-227c(b) ........................ 15
Fia. Stat. Ann. § 316. 19BB(1)(e) ........ccccccccccccccccecesees 15
Ga. Code Ann. § 40-5-67.1(d)..................ccecsscsecseeeoees 14
Ga. Code Ann. § 40-5-67.1 (d.1).............ccccccccsecscsceees 14
cc ereneunndnnsancesqoososes 15
8 ee 15
Ts crnenenconanonnnooresoos 15
lowa Code Ann. § 321.1001) ............c..ccccccccccsceeseeeess 15
Towa Code Amm. § SB1d.1GA(1) ....ccccccccccccccccccccsccccess. 15
ss I, OP ED vcccccccccccscnsescoccsessccsoocsscers 15
ee a ccacncnscnnesesecsscsuoccoeess 15
Ky. Rev. Stat. Ann. § 189A.105(2).......cccccccceccceeeeeeees 14
Mass. Gen. Laws ch. 90 § 24(1)(e).................cceceeeeee 14
Mass. Gen. Laws ch. 90 § 24(1)(f)..............0..cceceeeeeee 14
Md. Code Ann., Transp. § 16-205.1(b)(1) ................. 15
Md. Code Ann., Transp. § 16-205.1 (c)(1)................. 15
Mich. Comp. Laws Ann. § 257.625d(1) .................... 14
eh SRN, Ss Te GE ET seneneecennnicenneentinismenkineesapannin 10
Mo. Ann. Stat. § 577.041 .....cccccccccecccscccceseeessesessseeeees 13
Be ts SI, Oe Unc ctccscececeniencnedscindabendducnsaidensen 3
Mont. Code Ann. § 61-8-402(4) .0............ccseeeeeeeeeeeeeees 14
Mont. Code Ann. § 61-8-402(5) ....... 00... cececeecceeeeeeees 14
N.C. Gen. Stat. Ann. § 20-16.2 (c) .............00000...0000000 14
N.D. Cent. Code Ann. § 39-20-01.1 «0.0.0.0... 15
N.D. Cent. Code Ann. § 39-20-04(1)..............ee. 15
N.H. Rev. Stat. Ann. § 265-A:14(1) 0.0... ee eens 15
N.H. Rev. Stat. Ann. § 366-A:1G.........0cc-ccscseccssscesesees 15
N.M. Stat. Ann. § 66-8-111(A)...............ccccccsssscsssseees 14
N.Y. Veh. & Traf. Law § 1194(2)(a)(4)(b)(1), ........... 14
N.Y. Veh. & Traf. Law § 1194(3)................. eee 14
EF | Cen 15
is a, B,C iciincictsctsininttstensinititatinitieaniniaa 14
BRE, Glam, Cre © BR BFE. BD ncccccccccicccocscsscecceccesecoces 14
Be, GhGM. BI B BNF BID ccccccccccccncscccscccscccccvscsss 14
S.C. Code Ann. § 56-5-2946. ..............cccsscccsssccserersssees 15
S.C. Code Ann. § 56-5-2950(B) .................sseccccceeeeeees 15
23 Vt. Stat. Amm. tit. 2B § LBOBD) .......ccccscccccesscescoses 15
8 ee Se Sennen 15
Ss is EE OIE incintiiseuciininisiitdicnadistiiendinibadinnimebubies 15
Wash. Rev. Code Ann. § 46.20.308(3) ...............00.0... 15
Wash. Rev. Code Ann. § 46.20.308(5) ..................2... 15
Wyo. Stat. Ann. § 31-G-102(d) ................ccscccccscocescees 15
OTHER AUTHORITIES
A.W. Jones, Biochemical and Physiological Research
on the Disposition and Fate of Ethanol in the Body,
in Garriott’s Medicolegal Aspects of Alcohol (James
C. Garriott ed., 5th ed. 2008)...................... 9,10, 12
Charles L. Winek & Kathy L. Murphy, The Rate and
Kinetic Order of Ethanol Elimination, 25 Forensic
RE Ree es A ar 10, 11
Douglas Posey & Ashraf Mozayani, The Estimation
of Blood Alcohol Concentration: Widmark
Revisited, 3 Forensic Sci., Med. & Pathology 33
ERE Be RE a PL 7 RTS, 2a Se ee 8
Joseph E. Manno et al., Experimental Basis of
Alcohol-Induced Psychomotor Performance
Impairment, in Garriott’s Medicolegal Aspects of
Alcohol (James C. Garriott ed., 5th ed. 2008)...... 13
National Highway Traffic Safety Administration,
Alcohol and Highway Safety: A Review of the State
OE TAmmUPaeGn® © B.B GOOD nccccccccccccecccccscececcscccescees 11
Yale A. Caplan & Bruce A. Goldberger, Blood, Urine,
and Other Fluid and Tissue Specimens for Alcohol
Analyses, in Garriott’s Medicolegal Aspects of
Alcohol (James C. Garriott ed., 5th ed. 2008)...... 11
QUESTION PRESENTED
Whether the Missouri Supreme Court
correctly held that Petitioner violated the Fourth
Amendment by _ subjecting Respondent to a
nonconsensual and warrantless blood test after his
arrest for driving while intoxicated when (a) the
arresting officer testified that there were no exigent
circumstances requiring a warrantless search, (b)
both a prosecuting attorney and a judge were
available to respond to any request for a search
warrant, (c) Respondent’s performance on multiple
field sobriety tests was observed by the arresting
officer and preserved on videotape, and (d)
Respondent’s refusal to consent to a Btess test is
admissible under Missoun law?
Respondent respectfully submits this brief in
opposition to the petition for a writ of certiorari in
this case.
COUNTER-STATEMENT OF THE CASE
At approximately 2:08 a.m. on October 3, 2010,
Missouri State Highway Patrol officer Mark Winder
pulled Respondent Tyler McNeely over for exceeding
the speed limit by 11 miles per hour. (Tr. at 4:7-5:25,
12:17-13:2.)! Based on his observations during the
traffic stop and Respondent's performance on four
field sobriety tests, Corporal Winder suspected that
Respondent was intoxicated. (Jd. at 6:1-7:20, 8:4-7.)
He asked Respondent to take a portable breath test,
but Respondent declined. (/d. at 7:23-8:3.) Winder
then placed Respondent under arrest. (/d. at 8:8-9.)
When asked whether he would take a breath test at
the police station, Respondent declined again, and
Winder took him to a nearby medical laboratory to
obtain a blood sample. (Jd. at 8:10-9:4.) At the
medica] center, Winder asked whether Respondent
would submit to a blood test.2 (Jd. at 8:24-10:5.)
After Respondent declined the blood test, Winder
directed a lab technician to take a blood sample over
Respondent's objection at 2:33 a.m. (Jd. at 10:6-13,
11:3-6.) Winder testified that he made no effort to
' Citations to “Tr.” refer to the transcript of the suppression
hearing held on January 14, 2011.
* Although drawing an individual’s blood and testing its
contents are two distinct processes, for the purposes of this brief,
Respondent adopts the convention of the lower courts and uses
the terms “blood draw” and “blood test” interchangeably to refer
to the process of taking an individual's blood.
obtain a search warrant. (Jd. at 15:16-20.) He also
testified that he chose not to seek a warrant because
he had been told it was unnecessary rather than
because of any exigency, that he assumed a
prosecuting attorney and a judge would have been
available had he chosen to seek a warrant, that he
had never experienced a problem obtaining warrants
in the past under similar circumstances, and that he
had no reason to believe he could not have obtained a
warrant in this case. (/d. at 14:1-4, 15:21-24, 16:23-
17:10.) Respondent’s blood sample indicated an ethyl]
alcohol level of 0.154%, in excess of the legal limit of
0.08%. (Record on Appeal, Legal File [hereinafter
“Record”] at 26.) He was charged with driving while
intoxicated in violation of Mo. Rev. Stat. § 577.010.
Respondent filed a pretrial motion in Cape
Girardeau County Circuit Court to suppress the
results of the blood test taken without his consent
and without a search warrant. After a hearing at
which Corporal Winder and Sergeant Blaine Adams
of the Missouri State Highway patrol testified, the
trial court held that the blood sample was drawn in
violation of the Fourth Amendment and should be
suppressed. (Pet. App. at 46a.) The trial court
reasoned: “None of the authorities submitted on this
issue have held, on their own facts, that an officer
may obtain a warrantless blood draw on an ordinary
driving while intoxicated arrest when a warrant
could be procured in a timely manner.” (Jd. at 45a.)
Petitioner filed an interlocutory appeal in the
Missouri Court of Appeals. That court transferred
the case to the Missouri Supreme Court but noted
that it would find the blood draw constitutional.* (Jd.
at 24a, 26a, 38a.)
The Missouri Supreme Court affirmed the trial
court’s suppression order. (Jd. at la, 3a.) Noting
that warrantless searches are per se unreasonable
unless they fall within certain narrow exceptions, the
Missouri Supreme Court weighed society’s interest in
preventing drunk driving against the defendant’s
Fourth Amendment interest in freedom from
unreasonable searches and concluded that the fact
that the blood alcohol level dissipates over time does
not, by itself and without regard to other factors,
qualify as an exigent circumstance under Schmerber
v. California, 384 U.S. 757 (1966). (Pet. App. at 2a,
20a-22a.) Accordingly, it held that determining
whether an officer could reasonably believe that
exigent circumstances exist depends on the totality of
the circumstances in any given case. (/d. at 19a-
20a.) On the facts before it, the court found no
reason to fear “delay that would threaten the
destruction of evidence before a warrant could be
obtained” where “there was no accident to
investigate[,] . . . there was no need to arrange for
the medical treatment of any occupants,” and “there
was no evidence . . . that the patrolman would have
3 In transferring the case to the state supreme court, the court
of appeals explained that Respondent’s suppression motion
implicated not only the Fourth Amendment, but a recently
amended state law governing nonconsensual blood draws in
cases of suspected drunk driving. The court of appeals
transferred the case in the interest of having the statute
construed by the state’s highest court. (Pet. App. at 38a.)
Because the Missouri Supreme Court decided the issue on
Fourth Amendment grounds, it did not reach the state law
question. (Jd. at 21a n.9)
been unable to obtain a warrant had he attempted to
do so.” (Ud. at 3a.)
On March 6, 2012, the Missouri Supreme
Court denied Petitioner’s motion for rehearing. (d.
at 47a.)
REASONS FOR DENYING THE PETITION
I. THIS CASE IS AN INAPPROPRIATE
VEHICLE FOR THE COURT TO
DETERMINE WHEN EXIGENT CIRCUM-
STANCES JUSTIFY A NONCONSENSUAL
AND WARRANTLESS BLOOD DRAW.
This case is a poor candidate for a grant of
certiorari for three reasons. First, the arresting
officer acknowledged that his decision to order a
nonconsensual blood test was based on the fact that
he had been told warrants were unnecessary rather
than on any concern that he could not obtain a
warrant in timely fashion, making this a strange
case in which to construe the exigency exception to
the Fourth Amendment. Second, the record in this
case is devoid of any testimony from a qualified
expert on the complicated science of alcohol
metabolism. An understanding of that science is
critical to evaluating the categorical claim that any
drunk driving arrest presents exigent circumstances
that, in every instance, justify a warrantless blood
test. Because the science is both complicated and
contested, proper resolution of the constitutional
issues in this case would be enhanced by a fully
developed record. This case does not present one.
Finally, it is by no means clear that resolution of the
question presented will significantly affect the
outcome of this case.
A. The Arresting Officer In This Case Did
Not Act On The Basis Of Exigent
Circumstances In Ordering A Technician
To Draw Respondent’s Blood Without
Consent Or A Warrant.
Corporal Winder, the arresting officer, was
asked during the suppression hearing in this case if
his decision to forego a warrant was based on any
concern that he could not obtain one in timely
fashion. He said no.‘ When asked why he did not
4 Q: Was there any particular exigent circumstance as
you understand that from your training or emergency
circumstances that dictated the need to immediately get
blood from Mr. McNeely?
A: Exigent, no.
Q: Okay. In your time as a highway patrolman, have
you obtained search warrants to obtain blood from
people that have been arrested for driving while
intoxicated?
A: Yes.
Q: On any of the times in your training or in your
experience when you have wanted to get a search
warrant, have you been unable to because of the
unavailability of a prosecuting attorney?
A: No.
Q: Have you ever been unable to because of the
unavailability of a judge?
A: No.
Q: On this particular night, did you have any reason to
believe that you couldn't have gotten a search warrant
6
seek a warrant, Winder testified that his decision
was based on an article he had read by a prosecutor
stating that it was unnecessary to obtain a warrant
before drawing blood in cases of suspected drunk
driving. (Tr. at 14:1-20.)
In proceeding without a warrant, Winder
disregarded a directive from a _ superior that
warrantless blood draws in suspected drunk driving
cases should be conducted “only .. . in exigent
circumstances and then only on
manslaughter/vehicular assault cases with serious
physical or disabling injuries, after expending all
reasonable means to obtain a search warrant.”
(Record at 35.) He also ignored his personal
experience of over 17 years as a patrolman. (Tr. at
4:12-14.) Winder had never had trouble in the past
obtaining search warrants for blood samples from
people he had arrested for driving while intoxicated
and had no reason to believe this occasion would be
any different. (Jd. at 16:17-17:10.) In assessing
exigency, “the facts known to the police are what
count,” United States v. Banks, 540 U.S. 31, 39
(2003), and none of the facts testified to by Corporal
Winder suggests he faced an emergency situation. A
case in which the searching officer testified that he
did not face exigent circumstances is a poor vehicle
for deciding the scope of the exigent circumstances
exception.
because of the unavailability of a prosecutor or the
unavailability of a judge?
A: No.
(Tr. at 14:24-15:3, 15:25-16-3, 16:23-17:10.)
B. To The Extent That Resolution Of The
Exigency Question Turns On The Science
Of Alcohol Dissipation, The Record In
This Case Is Insufficient For A Full And
Fair Evaluation Of The Issue. ‘
A finding of exigency requires a determination
that evidence of guilt will be destroyed if time is
taken to obtain a warrant. Mincey v. Arizona, 437
U.S. 385, 394 (1978) (finding no_ exigent
circumstances because “[t]here was no indication
that evidence would be lost, destroyed, or removed
during the time required to obtain a_ search
warrant’). As it pertains to blood alcohol content
(“BAC”), such a_ determination depends on
physiological data about the process of alcohol
metabolism, data that is the subject of ongoing
scientific study. See, e.g., Douglas Posey & Ashraf
Mozayani, The Estimation of Blood Alcohol
Concentration: Widmark Revisited, 3 Forensic Sci.,
Med. & Pathology 33 (2007). Absent robust scientific
inquiry into the complex pharmacokinetic processes
governing the gradual rise and eventual fall of
BAC—an inquiry which the sparse record on appeal
does not permit—the Court is poorly positioned to
make two critical determinations: whether any blood
test taken after the time of operation is probative of
BAC at the earlier time when a defendant was
driving, and the rapidity with which evidence of BAC
is in danger of disappearing. When resolution of a
critical issue depends on a full and complete record,
the Court should await, before decision, the proper
development of such a record. That is especially so in
this case because this Court has recognized in
Schmerber that a nonconsensual blood test raises
serious Fourth Amendment issues _ involving
8
fundamental questions of “human dignity and
privacy,” Schmerber, 384 U.S. at 770.
The oversimplified portrait of alcohol
metabolism painted by the minimal record glosses
over important areas of complexity. BAC does not
simply decrease over time; instead, alcohol is
metabolized in two distinct, gradual phases:
absorption and elimination. A.W. Jones, Biochemical
and Physiological Research on the Disposition and
Fate of Ethanol in the Body, in Garriott’s
Medicolegal Aspects of Alcohol 47, 54 (James C.
Garriott ed., 5th ed. 2008). In the first phase, BAC
rises as alcohol is distributed from the stomach
throughout the body. /d. at 55-68. This absorption
process does not occur at a constant rate and depends
on dozens of variables; it may take anywhere from 30
minutes to two hours for BAC to reach its peak. Jd.
In the second phase, BAC drops as the alcohol is
gradually converted to carbon dioxide and water. Id.
This two-step progression is’ critical for
understanding and evaluating the evidentiary value
of BAC. For example, a blood test taken 30 minutes
after a defendant has ceased operating a vehicle,
revealing a .10% BAC, might mean that the
defendant in fact had no measurable quantity of
alcohol in his bloodstream at the time he was driving
if he was still absorbing alcohol during those 30
minutes. On the other hand, if the alcohol was being
eliminated during the 30-minute interval, it might
indicate that the BAC at the time of operation was
significantly higher than .10%. Though unlikely, it
might even indicate that BAC at the time of
operation was, in fact. exactly .10% if the defendant
happened to finish absorption and begin elimination
during the elapsed time between operation and the
blood test.
Therefore, an officer who obtains a BAC
reading of .08% or higher at any time does not have
the smoking-gun evidence necessary to convict a
defendant. Since the amount of alcohol in a
defendant’s bloodstream is constantly changing, the
result of a blood test taken some time after a
defendant has stopped driving is not direct evidence
of the defendant’s BAC at the time of operation.5 To
estimate BAC at the time of operation based on a
later blood test, a techniqve known as retrograde
extrapolation is typically used. See Jones, supra, at
103. When based on a single blood sample,
retrograde extrapolation generally calculates an
earlier BAC by simply multiplying the time elapsed
between operation and the blood draw by the average
alcoho] elimination rate. See Charles L. Winek &
Kathy L. Murphy, The Rate and Kinetic Order of
Ethanol Elimination, 25 Forensic Sci. Int’ 159, 159
(1984).
This record does not provide nearly enough
information to properly evaluate the reliability of
retrograde extrapolation and, in turn, the degree to
which a blood test taken after a defendant stops
driving can yield probative evidence.* To the extent
5In Missouri, a reading of .08% BAC or more is prima facie
evidence of intoxication “al the lime the specimen was taken,”
not at the time the defendant was driving. Mo. Ann. Stat. §
306.117 (emphasis added).
© Retrograde extrapolation may yield questionable results for
several reasons. First, it ordinarily assumes that the defendant
had already begun eliminating alcohol while operating the
vehicle. See, e.g., Jones, supra, at 103-04. Because alcohol
10
that the state intends to rely on _ retrograde
extrapolation, however, it may do so using a blood
sample taken at any time before alcohol is completely
eliminated from the defendant’s system and BAC is
zero. On the basis of the generalizations presented
in the record, a police officer has a minimum of four
hours to obtain a warrant and perform a blood test.’
Nothing in the record suggests that a blood test
taken further from the time of the arrest renders
retrograde extrapolation less accurate.
absorption is less regular, and as a result less predictable than
alcohol elimination, it is often difficult to determine when a
defendant completed absorption. Jd. Moreover, even if an
expert knew that a defendant was still absorbing alcohol at the
time he or she was driving, the relationship between time and
BAC during absorption is neither constant nor consistent,
making earlier BAC difficult to estimate. Jd. Second,
retrograde extrapolation is generally performed using an
average elimination rate, rather than the elimination rate of
the particular defendant, which is difficult to calculate. Thus,
experts will over- or underestimate the BAC of a defendant with
an above- or below-average alcohol elimination rate. See, e.z.,
Winek & Murphy. supra, at 165.
* A defendant whose BAC is barely above the .08% legal limit at
the time he is operating the vehicle, who has already begun
eliminating alcohol, and who eliminates
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