{"id":2066,"date":"2021-07-02T19:42:41","date_gmt":"2021-07-02T19:42:41","guid":{"rendered":"https:\/\/www.stonebusailah.com\/?p=2066"},"modified":"2021-07-02T19:42:41","modified_gmt":"2021-07-02T19:42:41","slug":"warrantless-blood-test-for-unconscious-driver-allowed","status":"publish","type":"post","link":"https:\/\/villagegreentesting.com\/StoneBusailah\/2021\/07\/02\/warrantless-blood-test-for-unconscious-driver-allowed\/","title":{"rendered":"WARRANTLESS BLOOD TEST FOR UNCONSCIOUS DRIVER ALLOWED"},"content":{"rendered":"\n

By Robert Rabe Esq.<\/strong><\/p>\n\n\n\n

The United States Supreme Court continues to address \u201cthe circumstances under which a police officer may [take] a warrantless blood [sample from] a motorist who appears to have been driving under the influence of alcohol.\u201d<\/p>\n\n\n\n

2013 – Missouri v. McNeely, 569 U.S. 141 (2013)<\/strong><\/p>\n\n\n\n

In McNeely, the U.S. Supreme Court was asked if the \u201cexigent circumstances\u201d exception to a warrant covers the taking of a blood sample from a conscious drunk-driving suspect, in light of the fact that blood-alcohol evidence is always dissipating due to \u201cnatural metabolic processes.\u201d The Court held that a drunk-driving arrest, taken alone, will justify a warrantless breath test, but not a warrantless blood test. This is because a breath test is less intrusive. The Court noted that McNeely is an example of \u201cthe minimum degree of urgency common to all drunk driving cases.\u201d<\/p>\n\n\n\n

2016 – People v. Arredondo (2016) 245 Cal.App.4th186<\/strong><\/p>\n\n\n\n

In Arredondo, the question was \u201cunder what circumstances may authorities seize a blood sample from an unconscious person suspected of drunk driving\u201d. Relying on McNeely, the California Court of Appeal held that exigent circumstance to justify the seizure did not exist, because there was no evidence that the 90 minutes between the arrest and the blood draw was insufficient time to obtain a warrant.<\/p>\n\n\n\n

The California Supreme Court granted review in Arredondo, to answer the question: Did law enforcement violate the Fourth Amendment by taking a warrantless blood sample from the defendant while he was unconscious? While the case was fully briefed in 2017, the Court has yet to decide the case and answer that question. Fortunately, the United States Supreme Court has just answered the question with a decision favorable to law enforcement practice and procedures.<\/p>\n\n\n\n

2019 – Mitchell v. Wisconsin<\/strong><\/p>\n\n\n\n

The Supreme Court held that the Fourth Amendment does not prevent the taking of a blood sample from an unconscious drunk-driving suspect without a warrant. For example, when probable cause exists to believe a person has been driving under the influence, but that person is unconscious and must be taken to a hospital for treatment, officers may \u201corder a warrantless blood test to measure the driver\u2019s BAC without offending the Fourth Amendment\u201d.<\/p>\n\n\n\n

If a driver is unconscious, a law enforcement officer cannot administer a breath test. The Court understood that requiring a warrant in such a situation might force an officer to \u201cchoose between prioritizing a warrant application, to the detriment of
critical health and safety needs\u201d and \u201cdelaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value\u201d.<\/p>\n\n\n\n

The Court did note, that in an \u201cunusual\u201d case, where the suspect could demonstrate the police had no additional \u201cneeds or duties\u201d caused by his unconsciousness, this general rule might not apply.<\/p>\n\n\n\n

The Court, in deciding Mitchell, explained that when a suspected drunk driver is unconscious, there are extra burdens placed on officers, who will likely have to take the driver to the hospital \u201cnot just for the blood test itself but for urgent medical care.\u201d
Frequently, with an unconscious driver, there will have been in an accident, which will cause officers to perform other duties that \u201cmay be incompatible with the procedures that would be required to obtain a warrant.\u201d The problems usually associated with an unconscious suspect place such a case much higher than McNeely on the exigency spectrum, which \u201calmost always permits a blood test without a warrant.\u201d<\/p>\n\n\n\n

Be ready to explain why your \u201cunconscious\u201d driver matter was not just another example of an uncomplicated drunk-driving scenario, with \u201cthe minimum degree of urgency common to all drunk driving cases\u201d. State how the delay caused by the
\u201cunconscious\u201d driver set your case apart from a typical one involving a \u201cconscious\u201d driver, pushing it over the line into exigency, which justifies the warrantless blood draw.<\/p>\n\n\n\n

If you are unable to explain what other pressing needs or other duties were caused by the suspect\u2019s unconsciousness, in other words, what made the incident and investigation different than that involving the typical conscious drunk-driving suspect, then a warrant should be obtained.<\/p>\n\n\n\n

Stay Safe!<\/strong><\/p>\n\n\n\n

Robert Rabe<\/strong> is Stone Busailah, LLP\u2019s writs and appeals specialist. His 41 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Robert Rabe Esq. The United States Supreme Court continues to address \u201cthe circumstances under which a police officer may [take] a warrantless blood [sample from] a motorist who appears to have been driving under the influence of alcohol.\u201d 2013 – Missouri v. McNeely, 569 U.S. 141 (2013) In McNeely, the U.S. Supreme Court was […]<\/p>\n","protected":false},"author":1,"featured_media":2067,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20],"tags":[],"class_list":["post-2066","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-fourth-amendment"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2066","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2066"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2066\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2067"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2066"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2066"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2066"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}