Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
Lower court opinion (State v. McNeely, 358 S.W.3d 65 (Mo. Banc 2012))
Does the evanescent quality of alcohol (or any metabolized substance, really) in and of itself create an exigent circumstance? Some courts, including Wisconsin’s, have interpreted Schmerber v. California, 384 U.S. 757 (1966) to establish that proposition. Others haven’t, and with this grant, the Supreme Court appears ready to resolve the conflict. The Missouri supreme court held here that something more than the “natural dissipation of blood alcohol” is required to establish an exigency. Wisconsin, as noted, takes a different view, State v. Bohling, 173 Wis.2d 529, 539, 494 N.W.2d 399 (1993) (“We believe that the more reasonable interpretation of Schmerber is the first one set forth—exigency based solely on the fact that alcohol rapidly dissipates in the bloodstream.”). Bohling, of course, imposes a “four-factor” test for warrantless blood draw admissibility, 173 Wis. 2d at 534 (“(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime,[1] (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw”), but unless dissipation alone is enough to establish the exigency, then you don’t even get to these four questions. Also see, State v. Faust, 2004 WI 99, ¶3, 274 Wis.2d 183, 682 N.W.2d 371:
For the reasons discussed below, we reaffirm that the rapid dissipation of alcohol in the bloodstream of an individual arrested for a drunk driving related offense constitutes an exigency that justifies the warrantless nonconsensual test of that individual’s blood, so long as the test satisfies the four factors enumerated in State v. Bohling, 173 Wis.2d 529, 533-34, 494 N.W.2d 399 (1993). We hold that the presence of one presumptively valid chemical sample of the defendant’s breath does not extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought — that is, the rapid dissipation of alcohol from the bloodstream — not the existence of other evidence, determines the exigency. Because exigent circumstances were present in this case and the blood test satisfied the test we set forth in Bohling, we reverse the decision of the court of appeals.
The logic of Bohling extends to controlled substances as well as alcohol, State v. Malinowski, 2010AP1084-CR, 11/30/10 (1-judge, unpublished but citable).
In sum, then, this grant appears to put in play an operative principle long-entrenched in Wisconsin.
