"To take an unconsented blood test, the police are forcing a needle into someone's arm," said Don Pumphrey, Jr., Tallahassee DUI lawyer. "You don't get much more invasive than that.
Tallahassee, FL (PRWEB) April 03, 2013
In the next few months, the U.S. Supreme Court will release an opinion on Missouri v. McNeely (Docket No. 11-1425), a case that analyzes whether the fact that alcohol dissipates in blood over time is enough to give police officers the power to order a blood test unconsented without a warrant. Tallahassee DUI lawyer Don Pumphrey, Jr., said a blood test is an invasive procedure that should certainly require a warrant if the suspect has not given consent.
"To take an unconsented blood test, the police are forcing a needle into someone's arm," Pumphrey said. "You don't get much more invasive than that. It's unconscionable that police would seek to do that without a warrant."
In 2010, Tyler McNeely was stopped by a state trooper in Missouri, according to court documents. The trooper reported that he appeared unstable and asked McNeely to perform a field sobriety test, according to court documents. McNeely consented and failed the test, according to court documents. The officer then asked McNeely to take a breath test, which he refused, according to court documents. The officer then took McNeely to a hospital and ordered a blood test, according to court documents. McNeely refused, but the officer ordered the lab technician to take the test anyway, without a warrant, according to court documents.
The case for the police lies in the concept of "exigent circumstances," Pumphrey said. Exigent circumstances mean special, emergency circumstances that may preclude procedural matters in the Fourth Amendment protections against unreasonable searches and seizures. One permissible exigent circumstance is the need to prevent destruction of evidence.
Under the Fourth Amendment, it is illegal for police to march into a suspect's house to search for evidence — a warrant would be required, Pumphrey said. However, if a police officer witnesses a person carrying drugs, and chases that person to his home, where the officer believes he will flush the drugs down the toilet, the officer may claim, under the exigent circumstances doctrine, that it is appropriate to run into the home to seize the evidence, Pumphrey said.
Missouri prosecutors argue that such an exigent circumstance exists in this case. They rely on Schmerber v. California (384 U.S. 757 (1966)), in which a police officer took blood without a warrant from a DUI suspect after taking the suspect to the hospital after an accident. The state, according to court documents, is extending that argument to say that the fat that alcohol dissipates into the blood over time, reducing its presence, is an exigent circumstance that calls for a warrantless blood test.
The analysis is wrong, Pumphrey said. Schmerber was decided on very specific circumstances — the suspect was injured in the accident and would not be able to leave the hospital, continued the Tallahassee DUI defense lawyer. The decision did not give police free reign to take blood without a warrant, he said.
"The idea that police should be able to draw blood on demand simply because they say they can't get a warrant fast enough is preposterous," Pumphrey said. "The Fourth Amendment protects against unreasonable searches and seizures, and unchecked power to insert a needle into a person falls under the reasonable category."
Justices seemed highly skeptical of the prosecution's case during oral arguments, according to SCOTUSBlog. Justice Anthony Kennedy did not seem to buy the argument that there would not be enough time for the warrant, and Justice Antonin Scalia seemed concerned about the potential for declaring there was no need for a warrant, according to the blog.
Don Pumphrey, Jr., is a Tallahassee criminal defense attorney with the Law Office of Don Pumphrey, Jr. He represents clients against drunk driving charges, as well as drug charges, marijuana charges and other offenses.