A Blood Draw is a “Search”
Recently, the United States Supreme Court upheld the Fourth Amendment against the concept that DUI enforcement always warrants a blood draw against a person’s consent. The Court held that the mere fact that alcohol metabolizes in the body is not sufficient to do away with the Fourth Amendment’s requirement for a warrant.
Entrenched in United States case law on the Fourth Amendment is the holding that warrantless searches are presumptively unreasonable. Against that position, however, under current Illinois DUI implied consent law, a person who drives or is in actual physical control of a motor vehicle shall be deemed to have given consent to “a chemical test or tests of blood, breath, or urine” to determine the content of alcohol … in the person’s blood. 625 ILCS 5/11-501.1(a). This means that a police officer need not obtain a warrant to stick a needle in a person’s arm to extract a blood sample.
Further, Illinois law provides that a police officer “shall” obtain a non-consensual, warrantless blood sample of a person suspected of driving under the influence of alcohol (DUI) who has caused the death or personal injury to another:
“[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, the law enforcement officer shall request, and that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine….” 625 ILCS 5/11-501.2 (emphasis added).
What about incidents where there is no death or no personal injury? One would infer that the above statute prohibits non-consensual, warrantless blood samples in DUI incidents that do not involve death or personal injury to a person other than the driver. But, in People v. Jones, the Illinois Supreme Court held to the contrary. The Court stated that testing without consent-even where there was no death or personal injury-did not violate the Fourth Amendment so long as (1) the officer had probable cause to believe that the person was driving under the influence of alcohol and (2) that the evidence of intoxication might be lost due to the body’s natural metabolization of the alcohol. 214 Ill. 2d 187, 200, 824 N.E.2d 239 (2005).
The United States Supreme Court rejected the argument that blood-alcohol dissipations constitutes a per se emergency. In Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013), the State argued (similar to the holding in Jones, above) that an exigent circumstance necessarily exists when an officer has probable cause to believe that a person was driving under the influence of alcohol, and because blood-alcohol evidence inherently metabolizes and disappears. Id. at 1560. Thus, the police officer could compel a blood sample test without obtaining a warrant simply because the body’s metabolization of the blood-alcohol evidence was a per se exigent circumstance. The McNeely Court held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id. at 1568. Any perceived exigency must be examined on a case-by-case basis. Id. at 1556. The Court expressly declined to recognize the dissipation of alcohol as a per se exigency justifying a non-consensual, warrantless blood sample:
“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so … We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber [v. California], not to accept the “considerable overgeneralization” that a per se rule would reflect. McNeely, 133 S. Ct. at 1561.
How should courts assess exigency in the aftermath of McNeely? Courts should consider “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police descretion.” McNeely, 133 S. Ct. at 1562-63. Many states allow police officers to use a cell phone, radio, in-car computer, or video conferencing for obtaining warrants. Others allow for standard-form warrant applications for drunk-driving investigations. Id. at 1562. In today’s technological environment, there should be (almost) no reason why a police officer could not obtain a warrant to secure a blood sample. Likewise, courts should more carefully scrutinize the totality of the circumstances surrounding cases in which a police officer purports that an exigency existed.
Will McNeely begin to erode current Supreme Court precedent regarding nonconsensual, warrantless blood tests? Will it affect Illinois’ implied consent laws? Will it affect people who “consent” to a blood draw when coerced into it by a warning that their license will be suspended if they don’t “consent”? Only time will tell, but it might become common to see more Fourth Amendment challenges regarding whether a warrant should have been obtained.