Can the Police Take a Blood Sample Without a Search Warrant ?

The U.S. Supreme Court agreed to hear a case on whether the police can seize a blood sample of an accused DUI driver based upon exigent circumstances. In Missouri v McNeeley , a police officer took an accused's blood sample without a search warrant. The government's theory was there was an exigent circumstances for the seizure without a warrant because the concentration of alcohol dissipates over time. The Missouri Supreme Court  held the seizure of the blood sample was an unconstitutional search. The U.S.Supreme Court will hear this case in the fall.

The Missouri case is very important to those charged with a drunk driving case here in Tennessee. If the court reverses the Missouri Supreme Court's decision , police officers will be granted the power to take any citizens blood sample without their consent or without a search warrant. Currently , a citizen is allowed to refuse to submit to a breath or blood alcohol test.

it is important on another ground as well. Tennessee currently allows for a forced blood draw on those charged with a second offense DUI or higher. There is no search warrant requirement to seize the blood sample. You must have only been convicted of a prior DUI.  I am unaware if Tennessee's forced blood draw has been challenged yet. It is my belief that the law will be declared unconstitutional at some point. The concept of Tennessee's forced blood draw is not before the Supreme Court.

The real question is whether the courts are going to keep allowing unfettered police intrusion into the lives of the citizens accused of a crime. Tracking someone on a GPS is allowed. Cell phones are not private. Where does the erosion of the Fourth Amendment stop ? It must stop with this series of cases. Sure everyone is against drunk driving . But , at what price do we sacrifice our constitutional protections ?

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Justin J. McShane, JD, F-AIC - September 26, 2012 6:12 PM

Here is my take on it.

From a public policy point of view:

Our Founding Fathers would be completely against forced blood draws. Those 56 brave signers of the Declaration of independence hated taxation (meaning taking money) without due process (meaning representation). Invasion of their bodies without due process meaning a warrant????? Holy smokes.

From a legal point of view:
1. The pharmacokinetics of EtOH makes any idea or notion of the need to get the blood without a warrant just silly. There is no exigency.
2. The fact that retrograde extrapolation can be done if certain factors are known also militates against exigency arguments.
3. Most states have adopted a within 2 hour or 3 hour rule so as to eliminate the time of driving or hip flask defense. So again, there is no rational exigency argument.
4. The possible abuse by undertrained police in the field (the phlebotocops) makes the ability to do forcible blood draws so very dangerous.

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