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The US Supreme Court may ultimately decide if a warrant is needed for a blood draw when law enforcement suspects a driver may be intoxicated. The latest step in that direction is the case of Tyler McNeely. McNeely was pulled over in 2010 for suspected DUI. When he refused a roadside breath test he was taken to a nearby hospital where his blood was drawn and tested without his consent and without a warrant.

If this had happened in Minnesota, Wisconsin or Oregon the case would have ended there as the supreme courts in each of these states allows for blood draws without a warrant, but in Missouri the State Supreme Court has ruled it a violation of the Fourth Amendment Right against unlawful search.

The Missouri justices wrote that there must be “exigent circumstances under which the time needed to obtain a warrant would endanger life, allow a suspect to escape or risk the destruction of evidence.” In this case dissipation of alcohol in the blood is not considered such a circumstance.

The Missouri State Supreme Court pointed to the ruling in the 1966 case of Schmerber v. California which allowed a warrantless blood draw only because the officer involved had to move the injured defendant to the hospital and stopping to get a warrant would have delayed the test even longer as well as endangered the health of the defendant. In the McNeely case blood was drawn fifteen minutes after the traffic stop. His attorney pointed out six cases in which a warrant was obtained within two hours during the middle of the night.

“Defendant’s case is unquestionably a routine DWI case,” the court wrote in upholding a trial judge’s suppression of the blood-test evidence. McNeely will still face charges but without this evidence.

“We believe the court has misread the Schmerber decision,” says Cape Girardeau Prosecutor Morley Swingle, “and we agree with the three (state) supreme courts that have ruled that it is constitutional under the Fourth Amendment to draw blood from a person an officer has probable cause to feel has just committed the crime of driving while intoxicated without getting a search warrant.”

With popular sentiment running toward getting drunk drivers off public roads and ensuring they are prosecuted at odds with an individual’s right against unlawful search and seizure it will be interesting to see what happens when or if the United Supreme Court will hear this case in the future.

DUI/DWI cases are highly fact specific and need an immediate investigation as soon as possible. At Daniel Miller, licensed Missouri attorney in Lee’s Summit, MO, we contact witnesses, review police reports and any hospital documentation, collect physical evidence, and work with experts when necessary. As a former prosecutor and state trooper, Daniel Miller has seen a wide range of criminal DUI cases and knows how to protect your rights and works to minimize charges or penalties in your case.