As St Louis DWI attorneys, our law firm has been fighting cases where defendants arrested on suspicion of DWI in many St Louis area counties, and counties across the state of Missouri, were holding that warrantless blood draws were legal and thus admissible into evidence at a criminal trial.
Now, the Missouri Court of Appeals Eastern District ruled that it is legal for law enforcement to seize a blood sample from a person after they are arrested for DWI without the person's consent and without a search warrant. See State v. McNeely issued on June 21, 2011. See Also St Louis injury lawyer blog article: Blood tests using alcohol swabs admissible.
Specifically, in 2010 Tyler McNeely was allegedly operating his motor vehicle while intoxicated in Cape Girardeau County Missouri. Law enforcement observed him speeding and he crossed over the center line three times. The Officer detected "a strong odor of intoxicants on his breath and his eyes were glassy and bloodshot." Tyler McNeely admitted to drinking and was swaying on his feet. He performed four field sobriety tests and refused to take a PBT (Portable Breath Test). Tyler McNeely was arrested for DWI in Cape Girardeau and he was read his Missouri Implied Consent and he refused to take a breath test.
The Officer informed him he was going to obtain a blood sample against his breath test and blood draw refusal. A lab technician at the St. Francis Medical Center Lab drew his blood that revealed a blood alcohol content of 0.154. The State of Missouri filed charges against him for driving while intoxicated. In his case he filed a motion to suppress the blood sample taken against his consent without a warrant. The trial court ruled that the evidence of the blood sample should be suppressed. The court relied on Schmerber v. California 384 U.S. 757 (1966), which the fourth amendment requires either a warrant or exigent circumstances to withdraw blood without consent. The court ruled that there was not any exigent circumstances in this case and that both a prosecutor and Judge were available to obtain a warrant and the officer chose not to.
The State of Missouri Appealed arguing that the Missouri Legislature recently eliminated the "none shall be give" language from Missouri Revised Statute 577.041 and that was the only thing under Missouri law preventing Police from obtaining blood samples without a warrant. The Court of Appeals agreed clearly stating that police have the authority to take a blood sample from an individual arrested for DWI without the consent of the person. The court reasoned that taking blood from a person does not violate their Fourth Amendment rights as long as the officer has ample cause to believe the person is driving under the influence and that the person's blood alcohol level would continue to decrease. The court went further to state that the Missouri Legislature removed the language "none shall be given" from Section 577.041 from the Missouri Implied Consent Law. The "none shall be given" language refers to if a person refuses to submit to any alcohol test then "none shall be given" and the refusal shall be admissible in court. The court interpreted this removal of language as now allowing the police to take a blood sample without a warrant. Due to the nature of this case the Appeals Court transferred the case to the Supreme Court.
This is an important case that needs to be monitored as it greatly affects a person's rights under the Fourth Amendment. No person wants to be subjected to their blood being drawn against their will without a court order by any police officer who claims to believe a person has been driving under the influence. Also, there are other issues that are not addressed in the case such as who pays for the blood draw and does a hospital have to do the blood draw.