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No Warrantless Forced Blood Draws in Ordinary Oregon DUII Cases, Says U.S. Supreme Court


When Tyler McNeely was stopped by a Missouri police officer he must have known that he was in big trouble.  He had two prior DUII convictions and a third conviction would be a felony.  The officer smelled alcohol and asked him to perform field sobriety tests.  McNeely refused a portable roadside breath test.  When he was arrested he told the officer that he would refuse to take a breath test at the police station.  The officer transported Mr. McNeely to a hospital and, over McNeely’s objection, had a hospital lab technician draw blood.  The officer did not even try to secure a warrant and instead relied on the “exigent circumstances” exception to the warrant requirement.  The theory was that since alcohol dissipates from a person’s blood stream over time, there was an emergency that required immediate action in order to preserve the evidence of intoxication.

McNeely was tried and convicted in a Missouri trial court.  The Missouri Supreme Court reversed his conviction, finding that the mere fact that alcohol dissipates is not enough to justify an emergency forced blood draw, particularly in an ordinary DUII.

The question raised in this case is an important one.  Some state courts have determined that the mere fact that alcohol dissipates is not enough, standing alone, to establish exigent circumstances in a DUII investigation.  Other states, including Oregon, have held that alcohol dissipation establishes an exigency automatically, essentially adopting an exigency per se rule.

The United States Supreme Court agreed to review McNeely’s case in order to settle the split between the states, once and for all.

The U.S. Supreme Court issued their opinion in Missouri v. McNeely on April 17, 2013.  The Court noted that it had previously allowed forced blood draws without a warrant in the 1966 case of Schmerber v. California.  However, Schmerber was a much different case, factually, and involved a serious DUII accident, with injuries, and it was shown in that case that it was not possible to get a warrant in time to get an accurate blood alcohol test.

In McNeely’s case, the Court soundly rejected the argument that alcohol dissipation establishes a per se exigency in a DUII investigation.  The Court noted that drawing blood from a person is a highly invasive procedure.  The Court was clearly troubled with the thought of granting police this authority in a routine DUII investigation.  The Court held that while alcohol dissipation was one factor that could be considered in determining whether an emergency existed, there had to be other factors present.  While the Court did not expressly set those factors out, the severity of the crime being investigated is undoubtedly a factor.   More importantly, the Court held that the police must demonstrate that they could not have obtained a warrant in a timely manner.   The Court noted that technological advances have made things like telephonic warrants possible and that type of warrant can be obtained fairly quickly.  Also, most jurisdictions have a judge assigned to review warrants 24 hours a day.

This is be an important case for Oregon DUII Attorneys.  This case over rules the Oregon Supreme Court which had adopted an exigency per se rule.  The Portland Criminal Attorneys at James F. O’Rourke, Jr. and Associates work to protect our clients’ constitutional rights in DUII investigations.

By James F. O’Rourke Jr.

The post No Warrantless Forced Blood Draws in Ordinary Oregon DUII Cases, Says U.S. Supreme Court appeared first on JFO Law.

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