Crawford v. Washington was not merely about the spousal privilege. Miranda v. Arizona did not solely concern statements from an alleged rapist. Terry v. Ohio did not just involve suspicious looking people. And, Missouri v. McNeely is not just about warrantless blood draws.
For some people in the legal community, Missouri v. McNeely simply means that law enforcement may not perform a warrantless blood draw in a DWI case based solely on single factor exigency. Most experts know, however, that decisions from the United States Supreme Court on constitutional issues, especially the Fourth Amendment, have long lasting impacts on legal issues and are not simply narrowly-focused opinions. The Court’s decision in McNeely may do just that, regardless, of whether a person arrested on a DWI takes a breath, blood, or urine test, or refuses a test altogether.
The Court recognizes breath, blood, and urine tests as searches. They all involve intrusions beyond the surface of the human body and infringe on expectations of privacy. Blood and urine tests are especially intrusive because they can reveal a host of facts about a person’s private medical state.
Because all evidentiary tests in DWI cases are searches, they are protected by the Fourth Amendment. Warrants are almost never sought by the police in DWI cases. Therefore, a warrantless search almost always occurs. Under the Fourth Amendment, all warrantless searches are per se unreasonable unless an exception applies. The most common exceptions are consent, search incident to arrest, exigency, plain view, stop and frisk, hot pursuit, and the automobile exception. Single-factor exigency is dead as a result of the Court’s decision in McNeely. Plain view, hot pursuit, and the automobile exception should not apply in this context. This leaves consent, search incident to arrest, and exigency under the totality of the circumstances as the most common exceptions used in arguing DWI cases.
For consent to be valid, it must be actual, free, and voluntary. Not simply implied by law. In Minnesota, consent is a real issue. Those arrested on DWIs are read the Minnesota Implied Consent Advisory, which includes a threat: “refusal to take a test is a crime” and then as part of the same advisory, they are asked to take a test. If the police come to your door without a warrant and ask to come in, they do not first tell you that if you refuse to let them in, they will charge you with a crime. That would simply be coercion, just like Minnesota’s Implied Consent Advisory. Minnesota is only one of four states that makes refusal to test a crime on a person’s first offense. Of those four states, Minnesota’s refusal carries the harshest penalty.
As the Court noted in McNeely, there may very well be circumstances where the exigencies are so great that securing a warrant is not reasonable. Just like the Court decided in Schmerber. The vast majority of DWI cases, however, involve no such exigencies. There is often ample time in between the arrest and transportation to a police station or hospital for testing, which means there is also enough time to secure a warrant in this day and age of technology.
For now, warrants are not sought on routine DWIs in Minnesota. In light of the United States Supreme Court decision in McNeely that will hopefully eventually change or Minnesota will revise its Implied Consent Law. Just as Miranda, Terry, and Crawford has its progeny of cases, McNeely will too. Since the McNeely Court informed Minnesota it was wrongly interpreting Schmerber, hopefully Minnesota will be more careful and take its time to fairly interpret McNeely.
The author of this article is Robert Ambrose. Robert is an associate attorney with Kans Law Firm, LLC and he is known for aggressively defending individuals charged with all levels of DWI offenses. If you are charged with a DWI and would like a free consultation, please contact us.