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DUIs and the 4th Amendment, Search Incident to Arrest and Implied Consent: It’s enough to drive you to drink (but not to drink and drive)!

Aug 1, 2019 — By Johnene Stebbins

For years, many courts allowed for the warrantless search and seizure of a suspect’s blood in a driving under the influence investigation arguing both implied consent and exigency.   The exigency argument was based on the theory that since alcohol dissipates in the blood, requiring officers to seek warrants would delay the search resulting in the destruction of evidence.  Thus, the dissipation of alcohol created an exigency worthy of a warrantless search.  Further, many states found that the implied consent doctrine also allowed an officer to forcibly draw blood from suspects refusing to give a breath or blood sample during a driving under the influence investigation.  The argument for implied consent being that driving is a privilege, not a right, and when one is granted that privilege, the individual consents to providing law enforcement with a blood, breath, and in some states, a urine sample, if suspected of driving under the influence of a drug or alcohol.  In fact, most states criminalize further the refusal to give such a sample.

In 2013, the US Supreme Court in Missouri v. McNeely (2013) 569 U.S. 141 solidly declared that the natural dissipation of alcohol in the blood alone does not create an exigency allowing for a warrantless search and seizure of a suspect’s blood.  So, this is when your life changed, and you were required to get warrants for blood draws after a suspect’s refusal to give breath or urine.  The US Supreme Court did, however, leave the door open for exigency justifying a warrantless search when other factors may have delayed the investigation causing the blood to dissipate and the destruction of evidence.  For example, they agreed with their earlier ruling in Schmerber v. California (1966) 384 U.S. 757 where the warrantless taking of blood was found to be reasonable based on the exigency of the additional delay when the officer had to take the suspect to the hospital for injuries sustained.  The US Supreme Court opined that “particularly in a case … where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id. 770-771.  So as part of the totality of the circumstances, the US Supreme Court in McNeely noted that the longer the delay due to other factors, such as investigating an accident or transporting a suspect to the hospital threaten the destruction of evidence and are significant factors playing into the totality of the circumstances for a warrantless search.  The McNeely case failed to discuss warrantless searches incident to arrest, where no exigency is shown, by which one might justify a warrantless blood draw or breath test.

The US Supreme Court tried to clarify this issue with its decision in Birchfield v. North Dakota (2016) 579 U.S.___.  In Birchfield, the Supreme Court looked at three different cases.  Mr. Birchfield was arrested for DUI and refused a blood test.  He was prosecuted for that refusal.   Mr. Bernard was arrested for DUI and refused a breath test.  In both instances, officers did not obtain warrants, but rather requested these tests as searches incident to arrest.  After a lengthy analysis of the intrusiveness of a breath test versus a blood test, the Court decided that the 4th Amendment permits warrantless breath tests incident to arrest for drunk driving because the intrusion is minimal. So, Mr. Bernard can be criminally punished for refusing the breath test and no warrant is required for a breath test when a suspect is arrested for DUI.  However, the Court decided that a blood test was not reasonable as a search incident to arrest.  Because the 4th Amendment protects the taking of Mr. Birchfield’s blood without a warrant, his refusal to waive that right cannot be criminally punished.  Finally, Mr. Beylund was arrested for DUI and taken to a nearby hospital where he agreed to a blood test after the officer read the implied consent admonishment that included refusal to submit to the blood test could be criminally prosecuted.  The Supreme Court sent that case back to the lower court for determination on the voluntariness of his consent.

Now most recently, the US Supreme Court took on the issue of the drunk driver who passes out before he can refuse.  In Mitchell v. Wisconsin (2019) 588 US ___, Mr. Mitchell was arrested for driving drunk, with a preliminary alcohol screening test showing him 3x the legal limit.  The officer took him to the police station for a breath test, but upon arrival, Mr. Mitchell was too lethargic to perform the breath test.  So, the officer drove him to the nearby hospital for a blood test.  Upon arrival at the hospital, Mr. Mitchell was unconscious, but his blood was drawn anyway under a state law that presumes a person who is incapable of withdrawing consent to a BAC test has not done so.  In Mitchell, the Supreme Court emphasized the rules from their prior cases:  (1) an officer may conduct a BAC test if the facts of the case bring it within the exigent circumstances exception to the 4th Amendment and (2) if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (not blood) under the rule allowing warrantless searches incident to arrest.  Now what to do if the person is unconscious and cannot submit to a breath test incident to arrest?  The Court was not influenced by the Wisconsin law regarding the withdrawal of implied consent.  Instead, the Supreme Court held that the exigent-circumstances rule will almost always permit a blood test without a warrant in these situations.  The Court discussed that if a driver is unconscious, they will likely be brought to an emergency room where blood will be drawn for diagnostic purposes, regardless of the evidentiary value of that test.  Also, it is almost a given that if the driver is unconscious or becomes unconscious, the officer’s responsibilities will be divided and incompatible with the procedures and time needed to obtain a warrant.  “Thus, when a driver is unconscious, the general rule is that a warrant is not needed.” Id. 2.

What does this mean for you?  Get a warrant when you can, but if there has been delay and you fear all of the alcohol in the suspect’s system will soon dissipate to zero such that we cannot back into a BAC, then a warrantless search will be permitted so long as we can articulate the factors causing the exigency/delay:  accident, flight, resisting arrest, medical attention, etc.

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