This week, the U.S. Supreme Court heard oral arguments in the case of State of Missouri v. Tyler McNeely. How the court decides this case will impact police procedure in DUI and accident investigation across the United States.
McNeely was stopped by Missouri State Highway Patrol Trooper Mark Winder after the trooper saw McNeely’s car exceeding the speed limit. McNeely had the classic signs of alcohol intoxication and failed the standard field sobriety tests.
Winder then asked McNeely to submit to a breath test, and McNeely refused.
Blood Drawn Without a Warrant
Winder arrested McNeely and drove him to a hospital, where the trooper ordered the staff to take a blood specimen from McNeely without McNeely’s consent. Missouri provides for involuntary blood draws in DUI investigations, but only after obtaining a telephonic court order. Trooper Winder did not obtain the court order.
McNeely was convicted of the DUI, but his conviction was overturned by the Missouri Supreme Court because no warrant for the blood was obtained.
The State of Missouri appealed the decision to the U.S. Supreme Court.
Having started in law enforcement in the late 1970s, I experienced the marked changes in DUI laws and attitudes toward DUI that characterized the 1980s. Prior to the early 1980s, DUI in most states was an expensive traffic ticket that seldom resulted in any jail time or more than a few hundred dollars in fines.
There were many loopholes that made the rap pretty easy to beat if the violator was informed. It was all but unheard of to have a blood test obtained by force in the event of a refusal.
When Mothers Against Drunk Driving (MADD) got involved, every state got on board. Penalties for both drunk driving and refusing to submit to a blood, breath, or urine test were increased dramatically.
Still, many violators continued to refuse the tests to avoid the DUI conviction, and states countered with the option for involuntary blood draws — with or without a court order or warrant.
Mongo the Phlebotomist
I worked in Nevada, where the state eliminated the option to refuse a test if the violator had a prior conviction in the seven years previous to the arrest. It didn’t matter if the prior was in Nevada or Maine.
If you had been down this road before, you could still opt for either blood or breath, but if you said, “no way,” we would hold you down for the phlebotomist.
This gave rise to a bit of drama at the jail. When I arrived at the jail’s sally port with a DUI refusal, I’d tell the operator I needed “Mongo, the salivating deputy.”
This was code to send the largest and most intimidating deputy on duty to the DUI test room for assistance. One of them looked forward to these calls and really got into it. He would come through the door dragging one foot and mimicking a hunchback, and say in his best Igor-from-Young-Frankenstein voice, “Is this the one who will not give us the blood?”
I estimate I arrested around 1,500 drunk drivers, and there were only two occasions when we had to use force to get the blood specimen.
Missouri and other states have a provision for obtaining an expedited warrant telephonically or electronically, but there will always be situations when delivery of the warrant is delayed. The problem with a delay is that the blood alcohol level falls with each passing minute. Most of the time, a small delay has no great impact, but the delay isn’t always small.
I was also a drug influence recognition expert (DRE), and I did have to get a seizure order for involuntary blood or urine specimens in drug influence cases. Most of the time, this entailed getting the on-call justice of the peace on the line, providing a sworn statement of my probable cause, and getting the judge’s okey-dokey.
There were, however, times when this didn’t go quite as expected. One judge in particular was prone to having his wife tell us he was unavailable, with no alternative or option to call another magistrate. In one case, he dodged me for a full 24 hours until there wasn’t any point in trying anymore.
That one walked.
I doubt that my experience is unique among American law enforcement officers.
Watch this One Carefully
Every state requires that people who obtain a driver’s license give their consent, in advance, to provide a blood or breath test on demand by a law enforcement officer.
Don’t want to be required to do that? Don’t drive a car, or see to it that you’re never in a situation where the officer has to make that demand.
Most of us go our whole lives without being affected by this. I can’t say I’m all that bothered by the offended sensibilities of the fraction who make this legal provision necessary.
The decision on this case will probably come before the court ends its current session in late spring. You should watch this one carefully. How it comes out will impact the way you do your job, now and in the future.