The constitutionality of blood draws in DWI cases: 3 recent SCOTUS opinions

What can we learn from the case of a Utah detective who was fired for mistakenly trying to compel warrantless blood draw? The Supreme Court provides the answers.


On July 26, 2017, Detective Jeff Payne of the Salt Lake City Police Department (SLCPD) went to the University of Utah Hospital and spoke with Nurse Alex Wubbels about taking a blood sample from an unconscious and critically injured patient. [1] The patient was involved in a two-vehicle crash that caused his vehicle to erupt in flames. [2] The accident was caused by another driver who was fleeing a pursuit initiated by the Utah Highway Patrol. [3] Police had no suspicion that the patient was drunk.

Wubbels informed Payne that the hospital and SLCPD had an agreement that blood could only be drawn when the patient has been arrested, or a warrant had been issued, or the patient has consented. Since none of those conditions existed, she refused to draw the blood. Payne arrested Wubbels, handcuffed her and placed her in a police car. [4] Wubbel’s lawyer said later that Payne believed he was operating under Utah’s implied consent statute. [5] Payne’s supervisor, Lt. James Tracy, said in his report that he spoke with Wubbels by phone (apparently before her arrest) and told her he believed they had implied consent for the blood draw. [6]

This incident was certainly a bad day for Nurse Wubbels, but it also marked the beginning of the end of the law enforcement career of Detective Payne.

The U.S. Supreme Court has issued three recent opinions that explain and clarify some of the constitutional requirements for drawing blood from drivers suspected of driving under the influence. (Photo/Pixabay)
The U.S. Supreme Court has issued three recent opinions that explain and clarify some of the constitutional requirements for drawing blood from drivers suspected of driving under the influence. (Photo/Pixabay)

Payne was later fired by the SLCPD and Lieutenant Tracy was demoted to patrol officer status. [7] FOX 13 News, Salt Lake City, reported on October 31, 2017, that Nurse Wubbels will receive a $500,000 settlement in connection with this incident.

It appears that the involved officers believed that Utah law authorized them to force a warrantless blood draw from an unconscious patient based upon the premise of statutory implied consent. They apparently also believed that implied consent justified a warrantless blood draw even in the absence of probable cause that the patient had been drinking. They were mistaken. The U.S. Supreme Court has issued three recent opinions that explain and clarify some of the constitutional requirements for drawing blood from drivers suspected of driving under the influence. These cases are examined chronologically below:

Missouri v. McNeely

McNeely was stopped for driving infractions. [8] He declined a breath test and was arrested for driving while intoxicated (DWI). He was taken to a hospital for a blood draw. He refused to consent to the blood draw, but the officer directed a lab technician to take the blood without a warrant.

The blood analysis disclosed that McNeely was well above the legal limit for alcohol in his blood. He moved to suppress on Fourth Amendment grounds. The Utah trial judge suppressed the evidence and the State Supreme Court affirmed.

The U.S. Supreme Court affirmed and rejected the State’s argument for the creation of a per se rule in DWI cases that no warrant is required because of exigent circumstances. The State argued that in every case an emergency exists when police have probable cause that a person has been driving under the influence of alcohol. The State’s rationale for the per se rule was that it is a scientific fact that alcohol in the blood naturally dissipates over time.

The Court refused to adopt a per se rule that in DWI cases exigent circumstances exist in every case, thereby automatically eliminating the need for a warrant. Instead, the Court, relying on its decision in Schmerber v. California, [9] ruled that in DWI cases officers are required to obtain a warrant to draw blood from a suspect as long as the warrant can be reasonably obtained without significantly undermining the chance to obtain meaningful evidence. Moreover, the Court held that exigent circumstances obviating the need for a warrant must be determined on a case by case basis by a “Totality of Circumstances” test. This test would include all relevant factors that taken together would justify a warrantless blood draw. These factors include the fact that the presence of alcohol in the blood will dissipate over time but that alone will not be enough to justify proceeding without a warrant. [10]

Lessons learned

  • A search warrant is required to draw blood from a DWI arrestee unless probable cause and exigent circumstances exist.
  • The dissipation of alcohol in the body of DWI arrestee by itself will not rise to the level of exigent circumstances.
  • Exigent circumstances must be determined on a case by case basis by a “Totality of Circumstances” test that will include, but not be limited to, the fact of alcohol dissipation. Other urgent needs facing on-scene officers such as serious injuries, seriously damaged vehicles/property and traffic safety matters are relevant factors in applying the exigent circumstances analysis.

Birchfield v. North Dakota

Birchfield drove his car off a road and when approached by a state trooper, exhibited several signs of driving while intoxicated. [11] He failed several field sobriety tests, and a roadside breath test determined his blood alcohol content was three times the legal limit.  

He was arrested and informed that state law required him to undergo a blood draw. He was told that state law reflects that refusal may result in criminal punishment. He refused to permit the blood draw and was charged with a misdemeanor violation of the refusal statute. [12] He entered a conditional guilty plea and argued that the Fourth Amendment prohibited a criminal charge for refusing to submit to a blood draw. The State trial court rejected his claim and the State Supreme Court affirmed.

The U.S. Supreme Court first ruled that a breath test to determine bodily alcohol content may be conducted without a warrant as a search incident to a lawful arrest. The Court, however, determined that entering a person’s body to remove blood is significantly more intrusive than blowing into a tube. The Court ruled that taking blood from a person arrested for DWI cannot be justified as a search incident to arrest and instead requires a search warrant or probable cause and exigent circumstances.

The Court also ruled that drivers cannot be criminally punished pursuant to state law for refusing to consent to a blood removal test. Such statutes that are based upon driver-implied consent but carry criminal penalties for refusal are unconstitutional. The Court observed that it is one thing to impose civil penalties on drivers who refuse a blood removal test but quite another to apply criminal penalties on those who refuse.

Lessons learned

  • Breath tests to determine alcohol levels in the blood can be administered without a warrant as a search incident to a lawful arrest.
  • Blood draws from a person under arrest for DWI are not permitted as a search incident to arrest. Instead, they require a search warrant or if the facts support it, probable cause and exigent circumstances.
  • State statutes premised on so-called implied consent that permit a person suspected of DWI to be prosecuted criminally for refusing to submit to a blood draw are unconstitutional and a violation of the Fourth Amendment.

Mitchell v. Wisconsin

Mitchell was arrested for DWI after failing an on-scene preliminary breath test that registered triple the Wisconsin legal limit. [13] He was taken to the police station for a more reliable breath test using evidence-grade equipment. Mitchell was too lethargic to take the second breath test and was taken to a nearby hospital for a blood draw. He was unconscious when he reached the hospital, but his blood was taken pursuant to a Wisconsin statute that presumes implied consent from persons incapable of refusing. The subsequent blood analysis disclosed a blood alcohol level above the lawful limit. Mitchell challenged the blood draw in court and argued that the warrantless blood removal violated his Fourth Amendment rights. Both the State trial court and the State Supreme Court approved the warrantless blood draw.

The U.S. Supreme Court observed that when a driver is unconscious and cannot be given a breath test using evidence-grade equipment, a blood draw becomes essential to determine the level of alcohol in the suspect’s blood. The Court stated that a warrantless search is appropriate under the exigent circumstances exception to the warrant requirement when there is a compelling need and no time to obtain a warrant.

The Court explained that there is “almost always” a compelling need for a warrantless blood draw when a drunk driving suspect’s unconscious condition deprives the police of a reasonable opportunity to conduct a breath test. The Court ruled that exigent circumstances will “almost always” exist in the drunk driver context when two factors are present: Blood Alcohol Content is dissipating (present in every drunk driving matter) and the drunk driver is so impaired as to lose consciousness. The Court observed that a driver’s unconsciousness not only creates pressing duties for an officer, but it is itself a medical emergency. The Court remanded the case back to the State Court system to give Mitchell an opportunity to make an argument that his case was somehow unique and that a warrant should have preceded the blood draw.

Lessons learned

  • Officers encountering a driver for whom they have probable cause to believe is drunk and unconscious will “almost always” be faced with exigent circumstances that will justify a warrantless blood draw.
  • Exigent circumstances exist in most cases because alcohol will dissipate in the body over time and the driver is unconscious and unable to submit to a breath test with evidence grade equipment.
  • This warrantless blood draw is permitted under the “exigent circumstances” exception to the warrant requirement and not based on a state implied consent statute.

Conclusion

The mistaken actions of the Utah detective and his supervisor cost one man his job and the other a major demotion. Moreover, the victim of their erroneous conduct received a large monetary settlement for her trouble. She could have sued both officers personally for violating her Fourth Amendment rights. It should be noted that two of the three Supreme Court cases examined above were decided before the Salt Lake City incident occurred. 

Training officers on the meaning of new constitutional legal decisions that impact their day to day operations is critical. Failure to train in this vital area of law enforcement is likely to result in liability for the involved officers, their superiors and their municipalities.

References

1. Bailey EV. U Nurse Alleges Assault and Wrongful Arrest. The Daily Utah Chronicle, September 1, 2017.
2. Id.
3. Id. The other driver was Marco Torres. Torres was killed after driving straight into the truck operated by Mr. Gray.
4. Fox 13 News, Salt Lake City, 10/31/2017.
5. Bailey EV. The Daily Utah Chronicle, September 1, 2017.
6. Streiff. Cop Roughs Up Utah Nurse. RedState.Com, September 1, 2017.
7. Reavy P. Supervising Officer in Viral Arrest of University of Utah Nurse Loses Appeal. Desert News, April 18, 2019.
8. 569 U.S. 141 (2013).
9. 384 U.S. 757 (1966).
10. Regarding factors that would be relevant to the existence of exigent circumstances in addition to blood alcohol dissipation, the Court noted that the warrantless blood draw in Schmerber v. California involved injuries to the suspect that required transport to a hospital (taking up officer time) and critical duties for the officer at the accident scene. The Schmerber Court ruled that exigent circumstances were present to justify the warrantless taking of blood from the suspect. However, it cannot be understated that Schmerber was decided in 1966 when technology advancements were yet to be realized. There are also factors present in some if not many DWI cases, that work against the exigent circumstances concept such as; the potential for the presence of sufficient officers to control the accident scene and travel with the suspect to the hospital while another officer seeks a warrant; technology advancements that make possible expedite communication between police, prosecutors and judges that can result in obtaining telephonic and digitally obtained warrants.
11. 136 S.Ct. 2160 (2016).
12. Birchfield was a repeat offender and faced a possible maximum prison sentence of a year and a day in prison because of his refusal.
13. 139 S.Ct. 2525 (2019).

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