By Jay Perry
The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant. The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample. The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed. The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.
The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws. Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:
1) the suspect is involved in an accident resulting in the injury or death of another;
2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;
3) the suspect has a child passenger in the car under the age of 16.
In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.
Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample. In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood. Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law. That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law. Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.
The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4th Amendment’s prohibition against “unreasonable searches”. The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention. Oral arguments will be scheduled sometime in early 2013.