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1
PER SE OR NOT PER SE THAT IS THE QUESTION: PROVIDING A
COMPREHENSIVE INTERPRETATION OF SCHMERBER V. CALIFORNIA
THROUGH RECENT STATE COURT OPINIONS
Written by Brandon Mika
JD/MBA Student
Thomas Jefferson School of Law/San Diego State University
Spring, 2012
ABSTRACT
The purpose of this Note is to explore whether officers should be allowed to administer a blood
test to a DUI suspect without a warrant due to the dissipation of alcohol from the blood stream.
This Note will inform the reader of the Constitutional implications involved. Additionally, it
will examine the history of the issue and compare two recent state cases finding in opposition to
one another and determine which decision best balances society‟s interest in preventing drinking
and driving and the individual‟s right to constitutional protections. Finally, this Note will
propose a solution for states to follow.
A blood test has been classified as a search and therefore a warrant is required under the Fourth
Amendment. One exception to the warrant requirement occurs when exigent circumstances are
present.
Schmerber v. California found that dissipation of alcohol from the blood stream created an
exigent circumstance that could potentially excuse officers from having to obtain a warrant.
However, the language was unclear as to whether dissipation is a per se exigent circumstance or
whether other circumstances created the exigency.
In light of technological and legislative advancements, state should employ a totality of the
circumstances test before permitting a warrantless blood withdrawal. Electronic warrants can be
obtained in minutes. Additionally, retrograde extrapolation provides a method to calculate an
individual‟s BAC at the time of arrest when they test just under the legal limit and time was
spent procuring a warrant. Finally, implied consent statutes provide for administrative
punishments if a warrant cannot be acquired and an individual refuses a chemical test.
Therefore, a warrantless blood draw should only be used as a last resort for repeat offenders or
suspects whose licenses have already been suspended through implied consent laws in order to
provide justice when a warrant cannot reasonably be obtained.
2
INTRODUCTION
Drinking and driving is an epidemic that plagues our society. One in every three people
will be involved in an alcohol related accident before they die.1 In 2005, 39% of all traffic
fatalities were attributed to alcohol.2 With alarming statistics such as these, it is no mystery why
many states afford police officers significant leeway in gathering evidence in drinking and
driving cases.3 The primary way for a state to obtain evidence is through chemical testing of the
breath, blood or urine of a suspect in order to determine his or her blood alcohol content (BAC).4
However, for nearly half a century, courts have struggled with the application of Fourth
Amendment protections in driving under the influence (DUI) cases as to whether a warrantless
blood draw is constitutional after an individual has been arrested based on clear probable cause,
due to the evanescent nature of alcohol in the blood stream.5
In attempting to find the proper balance of an individual‟s constitutional protections and
society‟s interest in preventing drinking and driving, police officers should only be permitted to
conduct a warrantless chemical test subsequent to an arrest when under a totality of the
circumstances, it would be impossible to obtain a warrant in a timely fashion.6 Although alcohol
dissipates at a rapid rate, advancements in technology and legislation since the landmark case of
1 NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, http://www.nhtsa.gov/NCSA (last visited Apr. 28,
2012). 2 Traffic Safety Facts 2005 Data, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, 1(2005),
http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Human%20Factors/Reducing%20Unsafe%20behavior
s/810616.pdf. 3 See, e.g. State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227 P.3d 729 (Or. 2010); State v.
Shriner, 751 N.W.2d 538 (Minn. 2008). 4 Debra T. Landis, Request Before Submitting to Chemical Sobriety Test to Communicate with Counsel as a Refusal
to Take Test, 97 A.L.R.3d 852 n.2 (1980) (defining a chemical test as an analysis of the breath, blood, or urine to
determine the amount of alcohol in the person‟s body). 5 Compare Schmerber v. California, 384 U.S. 757 (1966) (deciding as a matter of first impression in 1966 whether
the dissipation of alcohol constitutes an exigent circumstance due to its evanescent nature) with State v. McNeely,
358 S.W.3d 65 (Mo. 2012) (determining in 2012 whether the dissipation of alcohol is an exigent circumstance per se
by interpreting Schmerber). 6 State v. McNeely, 358 S.W.3d 65, 67, 74 (Mo. 2012) (stating that the court recognizes society‟s competing
interests and later goes on to hold that a totality of the circumstances test should be employed by police officers
before permitting a warrantless chemical test to determine a suspect‟s BAC).
3
Schmerber v. California provide adequate measures of deterrence without significantly
infringing on one‟s constitutional protections, thus making a warrantless blood withdraw an
unnecessary intrusion in many instances.7 In the future, states considering legislation or
reviewing precedent cases should impose a totality of the circumstances checklist for officers to
follow with a warrantless blood draw as the last option.
Courts have determined that subjecting a person to chemical testing constitutes a search
of the person‟s body.8 Thus, chemical testing has been afforded the same constitutional
protections as any other search.9
Under the Fourth Amendment of the United States Constitution, a police officer must
first obtain a search warrant before conducting a search, unless an exception to the warrant
requirement applies.10
One exception permitting an officer to perform a warrantless search exists
when there are exigent circumstances present.11
Exigent circumstances include instances such as
when lives are being threatened or evidence is about to be destroyed.12
Studies show that alcohol
dissipates at a rapid rate in relation to many other substances that are commonly tested for, such
as narcotics.13
As a result, courts have the arduous task of determining whether the dissipation of
alcohol is, per se, an exigent circumstance due to the potential destruction of evidence, or
7 See infra Part II.B.
8 Schmerber, 384 U.S. at 767 (“[Chemical testing] plainly involves the broadly conceived reach of a search and
seizure under the Fourth Amendment.”). 9 Id.
10 U.S. CONST. amend. IV.
11 Id.
12 Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (holding that exigent circumstances justified a warrantless search
to prevent the destruction of evidence so long as the officers did not create the exigent circumstance). 13
OHS HEALTH AND SAFETY SERVICES, INC., http://www.ohsinc.com/what_every_parent_should_know_part2.htm
(last visited Mar. 17, 2012) [hereinafter OHS].
4
whether police officers should employ a totality of the circumstances test in each situation to
determine if the time spent to procure a warrant would lead to the destruction of evidence.14
The issue of alcohol dissipation as an exigent circumstance was first examined in the
landmark case of Schmerber v. California.15
Although that court found that the dissipation of
alcohol constituted an exigent circumstance, states have not been able to decipher from the
language of the opinion whether the court intended for dissipation to be an exigent circumstance
in every situation, or whether the evanescent nature of alcohol in addition to other factors created
the exigent circumstance.16
Part I of this Note provides a brief understanding of the Fourth Amendment and exigent
circumstances, as well as the science behind alcohol dissipation. Part I also provides the
background for the debate by examining the United States Supreme Court precedent decisions
and their current application by the states, which is illustrated by State v. McNeely and State v.
Bohling, two recent state supreme court decisions that interpret the precedent in opposition to
one another. Part II analyzes each state court‟s opinion in order to determine which approach
provides the proper balance of society‟s interest in preventing drinking and driving and the right
of the people to be free from illegal searches and seizures. Finally, part III proposes that states
only use a warrantless blood withdrawal when circumstances make it impossible to obtain a
14
If the dissipation of alcohol from the blood stream is determined to be an exigent circumstance per se, then the
evanescent nature of alcohol alone is sufficient to bypass the warrant requirement. However, if a totality of the
circumstance test is employed, then the police officer must objectively determine whether circumstances make it
impossible to obtain a warrant prior to the destruction of evidence. See State v. McNeely, 358 S.W.3d 65, 70 (Mo.
2012). 15
Schmerber v. California, 384 U.S. 757 (1966). 16
See McNeely, 358 S.W.3d at 74; see also State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (“Schmerber can be
read in either of two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient
exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk
driving related violation or crime-as opposed to taking a blood sample for other reasons, such as to determine blood
type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and
the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw.”).
5
warrant in a timely fashion and the accused is either driving on a suspended license or a second
or third strike offender.
I. SCIENTIFIC BACKGROUND AND PRECEDENT DECISIONS IMPACTING
WARRANTLESS BLOOD WITHDRAWALS
Since the introduction of chemical testing, courts have had to examine what
constitutional protections people ought to receive for chemical tests in drinking and driving
cases.17
Today, courts continue to examine this issue throughout the country.18
A. The Science Behind Alcohol Dissipation
In order to fully understand some of the courts‟ reasoning regarding alcohol dissipation
as an exigent circumstance, it is first important to understand the science behind alcohol
dissipation. The first breathalyzer test was invented by Dr. Rolla N. Harger in 1931 by having
people blow into a balloon.19
His concept revolutionized chemical testing.20
Since that time,
alcohol determinations have become one of the most commonly performed forensic
procedures.21
Once alcohol is consumed, it is absorbed in the blood and travels throughout the
body.22
Because it appears in every bodily fluid, all types of chemical tests are able to discover
the presence and level of alcohol in the blood stream.23
Currently, the most effective and
accurate chemical test is the blood sample.24
Alcohol is estimated to be completely absorbed
approximately thirty to ninety minutes after the last beverage was consumed.25
However, the
17
Breithaupt v. Abram, 352 U.S. 432, 434 (1957) (deciding as a matter of first impression the constitutional
protections that should be afforded to chemical testing). 18
See, e.g., McNeely, 358 S.W.3d at 70. 19
Rolla N. Harger Dies; Invented Drunkometer, N.Y. TIMES, Aug. 10, 1983, available at
http://www.nytimes.com/1983/08/10/obituaries/rolla-n-harger-dies-invented-drunkometer.html. 20
See id. 21
EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING CASES § 12:1 (2011) 22
Jennifer L. Pariser, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64
N.Y.L. SCH. L. REV. 141, 145-46 (1989). 23
Id. at 149. 24
Id. 25
John E. Wherry Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 AM. J. TRIAL ADVOC.
503, 516 (1996).
6
absorption rate may be influenced by numerous factors including food consumption, the speed at
which the alcohol is consumed, and the alcohol content of the drink.26
Once the alcohol is
completely absorbed, it will begin to dissipate at a rate of approximately .015% per hour until it
has completely exited the blood stream.27
Alcohol has a faster dissipation rate than many other
banned substances.28
Alcohol will generally be out of the blood stream in a matter of hours,
whereas the dissipation rate for drugs such as cocaine is considerably longer.29
Because of the
evanescent nature of alcohol, law enforcement officials have found it necessary to obtain the
evidence as quickly as possible, even if it means doing so without a search warrant.30
B. The Fourth Amendment and Exigent Circumstance Exception
The Fourth Amendment of the United States Constitution protects:
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.31
As indicated by the language of the amendment, there generally must be a valid search warrant
to conduct a search, except in some special situations.32
The exigent circumstances exception to
the warrant requirement permits a warrantless search when lives are threatened, a suspect‟s
escape is imminent, or evidence is about to be destroyed.33
Once it was established that chemical
26
Id. at 516. 27
State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that .015% per hour is the
approximate dissipation rate); Wherry, supra note 25, at 516. 28
OHS, supra note 13. 29
State v. Jones, 895 P.2d 643, 644 (Nev. 1995) (“Further, the dissipation rate for cocaine and its metabolites
appears significantly slower than the dissipation rate for alcohol.”); OHS, supra note 13 (providing that the
dissipation rate of cocaine is approximately 1-2 days). 30
See, e.g., Schmerber v. California, 384 U.S. 757, 770-71 (1966) (determining whether the officer was justified in a
warrantless blood draw due to the evanescent nature of alcohol). 31
U.S. CONST. amend. IV. 32
United States v. Lovenguth, 514 F.2d 96, 99 (9th Cir. 1975) (finding that a warrantless search of the defendant‟s
truck was justified based on probable cause). 33
United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996).
7
testing was protected as a search under the Fourth Amendment, courts were faced with the task
of determining whether the dissipation itself constituted an exigent circumstance.
C. Breithaupt v. Abram
The United States Supreme Court first looked at the admissibility of blood tests and the
protections that suspects ought to receive in DUI cases in Breithaupt v. Abram.34
There, the
defendant was seriously injured when he collided with another car, killing three people.35
At the
scene, officers discovered a whiskey bottle in the defendant‟s glove compartment.36
The officers
then withdrew a blood sample from the defendant without his consent while he was unconscious
in the hospital.37
The New Mexico state court used the evidence to charge and convict the
defendant of involuntary manslaughter.38
The defendant filed a petition for a writ of habeas
corpus with the Supreme Court of New Mexico, claiming the nonconsensual blood test amounted
to an illegal search and seizure among other various constitutional violations.39
The Supreme
Court of New Mexico denied the writ, but the United States Supreme Court granted certiorari.40
The Supreme Court ultimately rejected the defendant‟s contention, determining that the blood
test was admissible to show his level of intoxication without offending his constitutional rights.41
The court based its ruling on New Mexico law, which did not follow the exclusionary rule.42
As
34
Breithaupt v. Abram, 352 U.S. 432 (1957). 35
Id. at 433. 36
Id. 37
Id. 38
Id. 39
Id. at 433-34. 40
Id. at 433. 41
Id. at 434. 42
The exclusionary rule provides that evidence secured in violation of one‟s constitutional rights should be excluded
as evidence. Id. at 434. New Mexico declined to follow the exclusionary rule based on Wolf v. People of the State
of Colorado, 338 U.S. 25 (1949), which held that it was unnecessary to exclude evidence in the prosecution of state
crimes when the evidence was taken in violation of one‟s Fourth Amendment rights. Id. The holding in Wolf was
overturned prior to Schmerber. Schmerber v. California, 384 U.S. 757, 767 (1966).
8
a result, the court failed to recognize the defendant‟s constitutional contentions.43
Although
unsuccessful, his claim paved the way for Schmerber v. California.
D. Schmerber v. California
The heart of this debate centers around the landmark case of Schmerber v. California.44
The defendant, Armando Schmerber, was taken to the hospital after being involved in a traffic
accident.45
After officers had an opportunity to investigate the scene, the defendant was arrested
while being treated for his injuries.46
The officers asked the defendant to consent to have his
blood drawn by a physician.47
Despite the defendant‟s refusal, the blood was withdrawn.48
The
results indicated that the defendant was intoxicated.49
The blood test was admitted into evidence
and Schmerber was convicted of DUI.50
The defendant appealed the ruling, contending that his
constitutional rights were violated, including the right to be free from illegal searches and
seizures.51
In determining whether the defendant‟s constitutional rights had in fact been violated, the
court found that the case “plainly involves the broadly conceived reach of a search and seizure
under the Fourth Amendment.”52
The court established that blood tests should be afforded the
same constitutional protections as any other search.53
The court then examined whether the
warrantless search violated the defendant‟s constitutional rights. Although the defendant‟s
appearance and odor clearly established probable cause for an arrest, as well as the need to
43
Breithaupt, 352 U.S. at 434. 44
Schmerber v. California, 384 U.S. 757 (1966). 45
Id. at 758. 46
Id. 47
Id. 48
Id. at 759. 49
Id. 50
Id. 51
Id. 52
Id. at 767. 53
Id.
9
conduct a chemical test according to the court, the question remained whether the officer was
justified under the exigent circumstance exception to the Fourth Amendment in determining the
need for chemical testing without first procuring a warrant.54
In deciding whether the dissipation
of alcohol amounted to an exigent circumstance under the destruction of evidence, the court
stated:
The officer in the present case, however, might reasonably have believed that he
was confronted with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened „the destruction of evidence‟
(citation omitted). We are told that the percentage of alcohol in the blood begins
to diminish shortly after drinking stops, as the body functions to eliminate it from
the system. Particularly in a case such as this, where time had to be taken to bring
the accused to a hospital and to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant. Given these special facts, we
conclude that the attempt to secure evidence of blood-alcohol content in this case
was an appropriate incident to petitioner's arrest.55
States are split about the reasoning of Schmerber.56
The two common interpretations are that the
court either intended for dissipation to be a per se exigent circumstance, or that the special facts
present in that particular situation created the exigency, thereby establishing a totality of the
circumstances approach.57
The following state supreme court cases provide examples of the two
common interpretations of Schmerber.
E. State v. Bohling (Dissipation as a Per Se Exigent Circumstance)
State v. Bohling provides an example of a jurisdiction that has adopted a per se approach
to the dissipation of alcohol as an exigent circumstance.58
There, a police officer was dispatched
54
Id. at 770. 55
Id. at 770-71. 56
Compare State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Rodriguez, 156 P.3d 771 (Utah 2007); State v.
Johnson, 744 N.W.2d 340 (Iowa 2008), with State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227
P.3d 729 (Or. 2010); State v. Shriner, 751 N.W.2d 538 (Minn. 2008). 57
Compare State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (interpreting Schmerber to apply a per se exigency
factor for dissipation), with State v. McNeely, 358 S.W.3d 65, 70 (Mo. 2012) (interpreting Schmerber to mean that
dissipation must be viewed in light of all of the circumstances involved). 58
Bohling, 494 N.W.2d at 399.
10
to investigate an accident.59
Upon arriving at the scene, he discovered the defendant, David
Bohling, who portrayed all the signs of intoxication, including bloodshot eyes and the odor of
alcohol on his breath.60
The officer arrested the defendant and brought him to the station where
he refused to take a breathalyzer test.61
The officer informed him that he would have to draw his
blood in accordance with Wisconsin laws and force would be used if he refused.62
Bohling was
then transported to the local hospital and given a blood test without a warrant, despite his refusal
to sign the consent form.63
In reaching its holding, the court attempted to analyze Schmerber.64
The court explicitly
recognized that Schmerber can be read one of two ways: either that the rapid dissipation alone is
a sufficient exigent circumstance, or that the rapid dissipation in addition to some other lapse in
time, such as other delays from events like the accident or hospitalization of the suspect, creates
the exigent circumstance.65
The court determined that the first interpretation is more reasonable, thereby establishing
a per se approach to dissipation as an exigent circumstance.66
They reasoned that the special
facts present in Schmerber occur regularly in DUI cases so the exigency was caused by the
dissipation itself and not any unique circumstances.67
Additionally, the court reasoned that other
state and federal decisions follow this approach.68
Multiple state courts have already adopted a
per se approach, and Skinner v. Railway Labor Executives’ Association has recognized that a
59
Id. at 400. 60
Id. 61
Id. 62
Id. Wisconsin permits the use of reasonable force to obtain a blood sample. See State v. Krause, 484 N.W.2d
347, 351 (Wis. Ct. App. 1992). 63
Bohling, 494 N.W.2d at 400. 64
Id. at 399-400. 65
Id. at 402. 66
Id. 67
Id. (stating that the circumstances present in Schmerber delaying the officers from withdrawing the defendant‟s
blood are common in most every DUI case so the court in Schmerber was not reasoning that the circumstances
created the exigent circumstance, but instead that the dissipation of alcohol alone created it). 68
Id.
11
warrant requirement is relaxed when the activity poses a serious public risk.69
Finally, the court
determined that a per se rule strikes the proper balance between an individual‟s right to be free
from illegal searches and Wisconsin‟s enforcement of its drunk driving laws.70
F. State v. McNeely (Totality of the Circumstances Test)
State v. McNeely provides a recent example of a jurisdiction voicing their dissatisfaction
with a per se approach and instead adopting a totality of the circumstances test in order to
determine whether a warrantless blood draw is justified.71
The defendant, Tyler McNeely, was
stopped by a highway patrolman as a routine traffic stop for speeding.72
The officer placed
McNeely under arrest for displaying signs of intoxication, such as slurred speech and the smell
of alcohol on his breath.73
After the defendant refused a breathalyzer test, the officer drove him
to the local hospital to obtain a blood sample.74
The defendant refused to consent to the blood
draw, but it was taken nonetheless.75
The issue before the court was whether the dissipation of
the alcohol alone is an exigent circumstance.76
Once again, the court attempted to interpret
Schmerber. In reaching a decision, the court relied on other jurisdictions‟ prior interpretations,
as well as their own insight.77
The presiding justices actually voiced their disagreement with
Bohling in the opinion:
[Bohling] reasoned that the exigency in Schmerber was caused “solely” by the
fact that alcohol dissipates in a person's blood stream over time. Bohling held that
a warrantless blood draw is permitted when a person is lawfully arrested for a
drunken-driving related crime and there is a clear indication that the evidence
69
Id. at 403-05. 70
Id. at 405. 71
State v. McNeely, 358 S.W.3d 65 (Mo. 2012). 72
Id. at 67. 73
Id. at 68. 74
Id. 75
Id. 76
Id. 77
Id.at 70-75.
12
obtained will produce evidence of intoxication…This court cannot agree with
th[is] interpretation of Schmerber.78
As a result, McNeely determined that the court must adopt a totality of the circumstances test, in
which the officer must objectively determine whether special circumstances exist where the
evidence has a significant risk of being destroyed.79
The questions still remains as to which
approach strikes the proper balance between society‟s interest in preventing drinking and driving
and an individual‟s right to be free from illegal searches.
II. INTERPRETING SCHMERBER FORTY-SIX YEARS AFTER THE INITIAL
DECISION
Forty-six years after the decision in Schmerber, cases such as Bohling and McNeely
highlight the difficulty states are still having in interpreting the court‟s reasoning.80
The vague
analysis of Schmerber makes it difficult to decipher whether the court intended for the special
circumstances surrounding the incident to create an exigent circumstance, or whether the
circumstances described in the case are common in most every DUI case so that the evanescent
nature of alcohol creates an exigent circumstance per se.81
Because the Supreme Court has not
reexamined the issue in the forty-six years since the initial decision, it has been left to the states
to make a determination. In light of legislative and technological changes since Schmerber, a
totality of the circumstances test, similar to the one adopted in McNeely, will provide the best
balance of societal interests and individuals‟ constitutional rights in contemporary society.
A. Balancing Society’s Interest in Preventing Drinking and Driving with an Individual’s
Constitutional Protections
Before reaching a decision, courts will often consider policy implications. In DUI cases
dealing with chemical testing, the state has a strong interest in enforcing its DUI laws to protect
78
Id. at 73-74. 79
Id. at 74. 80
See, e.g., McNeely, 358 S.W.3d at 65; State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 81
Schmerber v. California, 384 U.S. 757, 770-71 (1966).
13
its citizens.82
On the other hand, an individual also has the right to be free from illegal searches
and seizures.83
Finding the proper balance is a difficult task for any judge.84
Additionally, as
times change, the balancing of these factors might change.85
Since the 1966 decision in
Schmerber, changes in legislation and technology have provided states with the ability to
properly enforce their DUI laws without infringing on one‟s constitutional protections through a
warrantless search, thereby furthering a totality of the circumstances approach.
B. Advancements Since Schmerber Affecting the Balance of Societal and Individual Interests
Since Schmerber was decided in 1966, states have employed various strategies to prevent
drunk driving.86
The following are a few of the changes since Schmerber that when used
together prevent the need for a per se rule for dissipation as an exigent circumstance.
1. Technological Advancements
Advances in technology, such as the telephonic or electronic warrant, provide police
officers with the ability to avoid the possible destruction of evidence through more efficient
measures. Telephonic warrants were first adopted by the Federal Rules of Criminal Procedure in
1977.87
Over the past thirty-five years, almost every jurisdiction has adopted some form of the
telephonic warrant so that they may be provided expeditiously for cases such as these when time
is of the essence.88
So long as the Fourth Amendment requirements are met, the warrant will be
82
Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at 67. 83
Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at 67. 84
See, e.g., Bohling, 494 N.W.2d at 405(illustrating the varying interests that a judge must consider in reaching a
decision); McNeely, 358 S.W.3d at 67. 85
The introduction of the electronic warrant and other advances post Schmerber have lessened the necessity of
protecting the public with a per se approach. 86
Since Schmerber was decided, electronic warrants, retrograde extrapolation, and implied consent laws have
become commonly used to prevent drinking and driving. 87
Wherry, supra note 25, at 520. 88
See WIS. STAT. ANN. § 968.12 (West 2011); MO. REV. STAT. § 542.276 (2011); UTAH CODE ANN. § 77-7-10
(West 2011).
14
issued electronically.89
Twenty-five years ago, courts determined that ninety minutes was a
sufficient amount of time for a telephonic warrant to be issued.90
However, technological
advancements have continued to make the process more efficient. For example, in 1998, an
Arizona court determined from testimony by the Mesa police station that an electronic warrant
could be obtained in as little as fifteen minutes, with the average time not exceeding one hour.91
Today, counties are beginning to issue electronic warrants or “e-warrants” through the
use of smart phones or tablet devices.92
In Douglas County, Kansas, all five county judges read
and sign warrants on iPads.93
They can submit the warrant in less than an hour, which even
includes their signature and is thus no different than a paper warrant.94
The use of iPads for
issuing electronic search warrants in Douglas County was specifically utilized for DUI cases.95
With the dissipation rate of alcohol being estimated to be .015% BAC per hour, the chance of
someone exceeding .08% BAC at the time of the arrest and falling under the legal limit in less
than an hour is rare.96
2. Retrograde Extrapolation
Even if someone tests just under the legal limit a short time after being formally
arrested, there is still a method of determining the suspect‟s BAC at the time of arrest.
Retrograde extrapolation is a mathematical process used to calculate one‟s BAC at the time the
89
State v. Rodriguez, 156 P.3d 771, 778 (Utah 2007) (“The warrant must be „upon probable cause, supported by
oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”‟). 90
Wherry, supra note 25, at 523 (citing United States v. Alvarez, 810 F.2d 879, 883 (9th Cir. 1987). 91
State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 92
Bill Robinson, Electronic Warrants Speed Law Enforcement, THE RICHMOND REGISTER (Dec. 1, 2011),
http://richmondregister.com/localnews/x1331365215/Electronic-warrants-speed-law-enforcement. 93
George Diepenbrock, With iPads, Judges in Touch any Time, any Place, LJWORLD.COM (February 5, 2012, 11:17
PM) http://www2.ljworld.com/news/2012/feb/05/ipads-judges-touch-any-time-any-place/. 94
Id.; To view a sample electronic affidavit and search warrant, see No-Refusal Sample, NATIONAL HIGHWAY
TRAFFIC SAFETY ADMINISTRATION,
http://www.nhtsa.gov/staticfiles/planners/NoRefusalWeekend/docs/samplewarrant.pdf (last visited April 29, 2012). 95
Diepenbrock, supra note 93. 96
State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that this is the approximate
dissipation rate); Wherry, supra note 25, at 516.
15
suspect was operating a motor vehicle by using the information obtained from the chemical test
and relating it back to the time the individual was driving.97
Courts have disagreed whether to
allow the evidence to be used at trial by the prosecution in order to obtain a conviction.98
It is
imperative to have an expert familiar with the process provide the testimony in order for a court
to find it admissible.99
Any expert hired to testify should also have knowledge of individual
characteristics of the defendant that would impact the calculation, such as the defendant‟s age,
weight, food consumption, and the time lapse between drinking and driving, or any other factor
that could influence the absorption rate.100
Because of the many factors that can affect retrograde extrapolation, it should be used
sparingly as evidence used to obtain a conviction.101
However, so long as the courts enforce that
any expert called to testify have considerable knowledge of the facts of the case, especially the
time lapse between drinking and driving and the defendant‟s personal characteristics, retrograde
extrapolation can be used effectively.
This Note proposes that retrograde extrapolation only be used for short term calculations
when suspects test just under the legal limit and the necessary details are known to the expert, in
order to determine if the time spent getting a warrant impacted their BAC. Critics argue that
retrograde extrapolation is not a precise calculation due to all of the influential factors and
therefore, should not be used as admissible evidence.102
However, courts have determined that
97
Jim Fraiser, Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions, 119 A.L.R.5th 379
(2004). 98
Id. 99
Id. 100
Id. 101
Id. 102
Critics of retrograde extrapolation argue that it is difficult to calculate an individual‟s BAC back to a previous
point in time because so many factors influence the absorption rate of alcohol. When an individual consumes a
drink, the alcohol absorbs into the blood stream. As the alcohol absorbs, his or her BAC rises until it is completely
absorbed, at which point, he or she reaches a peak BAC. After the peak is reached, the alcohol slowly begins to
dissipate. Critics of retrograde extrapolation argue that it is difficult to determine how long after consuming the last
16
the calculation is based on a scientific method and may be admissible to calculate one‟s BAC for
as long as fifteen hours prior to chemical testing.103
Because it should take no longer than one
hour to obtain an electronic warrant as previously determined,104
one‟s BAC should only
dissipate .015%.105
. The number of cases in which a suspect‟s BAC lowers to a legal level
during the time to get a warrant therefore should be minimal. Nevertheless, retrograde
extrapolation is an available method for courts to consider so that critics of electronic warrants
do not contend that an hour is too long to wait, even if it means protecting an individual from a
warrantless search.
3. Implied Consent Statutes
The last critical change since Schmerber is the widespread use of implied consent laws to
impose civil punishments on individuals who refuse to submit to chemical testing.106
A typical
implied consent statute states that if an individual is using public roads, he or she is impliedly
consenting to a chemical test.107
All or virtually all states have some form of the implied consent
statute in place.108
Even the federal government has an implied consent statute for maritime and
territorial jurisdictions.109
If the individual still refuses to consent to a chemical test after being
properly instructed as to the implied consent statute, the individual will usually be subject to
drink that an individual will reach his or her peak BAC. As a result, the suspect may be at his peak during a
chemical test, resulting in a higher BAC than when he was driving. For more information about the potential pitfalls
of retrograde extrapolation and examples of BAC curves, see EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING
CASES § 10:13 (2011). 103
Smith v. City of Tuscalossa, 601 So.2d 1136, 1138-39 (Ala. Crim. App. 1992) (finding the retrograde
extrapolation testimony admissible for determining the suspect‟s BAC level 15 hours prior to when the chemical
testing occurred). 104
State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 105
State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that .015% per hour is the
approximate dissipation rate). 106
See Murphy v. Director of Revenue, 170 S.W.3d 507, 511 (Mo. Ct. App. 2005) (“Our legislature responded to
Schmerber by its enactment, like many other states, of an “implied consent” statute.”). 107
JAMES BUCHWALTER, ET AL., 8 AM. JUR. 2D AUTOMOBILES § 991 (2012). 108
Anable v. Ford, 653 F.Supp. 22, 35 (W.D. Ark. 1985) (“[M]ost if not all states have enacted statutes which
provide implied consent to such tests by motor vehicle operators.”). 109
U.S.C.A. § 3118 (West 2012).
17
administrative punishments, such as the revocation of his or her license, but he or she will
usually not be forced to submit to a chemical test so that the individual‟s constitutional rights are
not violated.110
Courts reviewing implied consent statutes have held administrative punishments
to be constitutional as a result of Schmerber.111
Implied consent statutes have proven to be an effective form of punishment.112
Because
individuals must be informed of their rights in most jurisdictions prior to submitting to a
chemical test if it is to be admissible, they can make an informed decision whether they wish to
submit to the test or face administrative punishments should they refuse.113
Additionally, the
right to revoke one‟s license or impound his or her car serves as a deterrent without infringing
upon an individual‟s Fourth Amendment rights.114
Implied consent statutes begin to lose their effectiveness however once constitutional
rights become involved. In Oregon, it is illegal to refuse to submit to a chemical test.115
The
simple act of refusing may be used to convict a person of DUI.116
Implied consent statutes
should be viewed as an alternative means of punishment through civil penalties that will deter
drinking and driving without infringing on one‟s Constitutional protections.
110
BUCKWALTER, supra note 107. 111
Murphy v. Director of Revenue, 170 S.W.3d 507, 511 -12 (Mo. Ct. App. 2005). 112
BUCKWALTER, supra note 107. 113
Id. 114
A Guide to Sentencing DWI Offenders, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION AND NATIONAL
INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM , 20 (2005),
http://www.nhtsa.gov/people/injury/alcohol/dwioffenders/A%20Guide2.pdf (providing statistics which show that
administrative punishments, such as impounding or immobilizing the arrestee‟s vehicle, reduces recidivism by 40-
70% and a license revocation for a first time offender lowers alcohol related fatalities by 6-19% ) [hereinafter
Sentencing]. 115
State v. Machuca, 227 P.3d 729, 737 (Or. 2010). 116
OR. REV. STAT. § 813.310 (2012).
18
C. Comparing Bohling’s and McNeely’s Interpretation of Schmerber in Light of the
Foregoing Advancements
Bohling and McNeely are two state supreme court cases decided in the past twenty years,
which highlight the opposing viewpoints of this debate.117
Both cases were decided after the
introduction of the electronic warrant, retrograde extrapolation, and implied consent laws,
making them capable of comparison in determining which approach best serves society.118
Additionally, the opinion in McNeely directly attacks Bohling’s interpretation of Schmerber, and
their adoption of a per se exigency approach to dissipation.119
In attempting to compare these
cases, it becomes evident that the recent advancements have established that a totality of the
circumstances test strikes the best balance of society‟s interest in deterring drinking and driving
and protecting an individual‟s constitutional rights.
The facts of Bohling and McNeely are largely similar, which makes it possible to
compare the courts‟ reasoning.120
The only notable difference is that the defendant in Bohling
was involved in a car accident,121
whereas the defendant in McNeely was pulled over for a traffic
violation.122
However, in reaching its holding, the court in Bohling fails to mention the
emergency circumstance exception outlined in Schmerber that may have permitted a warrantless
blood withdrawal. Instead, the court interprets Schmerber as indicating that dissipation alone is,
117
State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 118
Wherry, supra note 25, at 520 (stating that electronic warrants were first adopted by the Federal Rules of
Criminal Procedure in 1977); State v. Bohling, 494 N.W.2d 399, 403, 405 (Wis. 1993) (discussing the use of
implied consent laws and extrapolation as potential deterrents). 119
McNeely, 358 S.W.3d at 73-74 (stating that the court cannot agree with Bohling’s interpretation that Schmerber
intended for dissipation of alcohol to be a per se exigent circumstance). 120
See McNeely, 358 S.W.3d at 65; Bohling, 494 N.W.2d at 399. 121
Bohling, 494 N.W.2d at 400. 122
McNeely, 358 S.W.3d at 67.
19
per se, an exigent circumstance.123
Therefore, the reasoning provided by the court in both cases
can be easily compared.
In order for an exigent circumstance to be present as an exception to the warrant
requirement, officers must reasonably believe they are confronted with an emergency situation
where obtaining a warrant would threaten the destruction of evidence.124
Whether exigent
circumstances exist must be determined on a case-by-case basis.125
The test to determine
whether exigent circumstances exist is an objective test.126
As a result, an officer must
reasonably determine in each situation the likelihood that evidence will be destroyed. Even if
Schmerber is to be read that the dissipation alone is sufficient to create an emergency
circumstance, it only becomes an exigent circumstance if the officer objectively believes the
evidence will be destroyed before procuring a warrant. However, with the introduction of
electronic warrants, the process will generally take less than an hour.127
Therefore, a warrantless
blood withdrawal should only be completed after considering other options, such as the
electronic warrant. Thus, no matter which way the issue is examined, a totality of the
circumstances test is employed.
The court in Bohling provided four reasons for its decision in determining that dissipation
is a per se exigent circumstance: “(1) a logical reading of Schmerber, (2) the Supreme Court's
123
Bohling, 494 N.W.2d at 402 (“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.”). 124
Schmerber v. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of
dwellings, and absent an emergency, no less could be required where intrusions into the human body are
concerned.”). 125
United States v. Morrow, 541 F.2d 1229, 1232 (7th Cir. 1976) (finding that the FBI agents‟ actions met the
minimum reasonableness for exigent circumstances, but in the future a search warrant should be obtained whenever
possible). 126
United States v. Elder, 352 F.Supp.2d 880, 884 (C.D. Ill. 2005) (finding that exigent circumstances justified a
warrantless search of the defendant‟s shed, the court stated that the officer acted reasonably entering when the door
was left open); Schmerber, 384 U.S. at 770 (“The requirement that a warrant be obtained is a requirement that
inferences to support the search „be drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.”‟). 127
State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998).
20
decision in Skinner v. Railway Labor Executives' Assn., (citation omitted), (3) interpretations of
Schmerber by other courts, and (4) an examination of Wisconsin's interest in enforcing its drunk
driving laws.”128
However, the court‟s arguments fail to provide any persuasive support for a per
se approach.
First, Bohling’s reading of Schmerber does not justify a per se rule. The court in Bohling
claims that the special circumstances surrounding the situation did not create the exigent
circumstance because a police officer must transport the suspect to the hospital in either case in
order to withdraw the blood.129
However, in Schmerber, the officer did not see the defendant
until two hours after the initial encounter because he had to investigate the scene of the
accident.130
Moreover, in contemporary society, a police officer should be able to secure a
warrant in the time it takes to transport a suspect to the hospital to have a trained medical
professional draw the blood.131
Thus, Bohling’s reading of Schmerber does not provide adequate
support for a per se rule.
Next, Bohling attempts to broaden a narrow holding in Skinner.132
In Skinner, laborers
working on a railroad filed suit to challenge regulations requiring drug tests.133
The court held
that a warrantless drug test is reasonable under the Fourth Amendment because the government
interests served by the regulations outweighed the employees‟ privacy concerns.134
The court
reasoned that the warrant requirement is relaxed when the activity poses a serious public risk.135
Bohling uses Skinner to assert that the constitutional protections provided to drivers should be
128
State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993). 129
Id. 130
Schmerber, 384 U.S. at 770. 131
Flannigan, 978 P.2d at 131 (explaining that it generally takes the Mesa Police department less than an hour to
obtain an electronic warrant). 132
Bohling, 494 N.W.2d at 405 133
Skinner v. Railway Labor Executives‟ Ass‟n,, 489 U.S. 602, 612 (1989). 134
Id. at 633. 135
Id. at 627.
21
relaxed as well.136
However, the status of the individuals makes these cases distinguishable.
Precedent has held that employers have the right to drug test employees without a warrant for
liability purposes when they are conducting work in sensitive positions.137
Nevertheless,
permitting a drug test of the employee without a warrant is distinguishable from permitting a
warrantless drug test of a member of the general public. As a result, the holding of this case
cannot be extended to Bohling.
Bohling also asserts that a per se rule provides the proper balance of policy interests
because there is minimal constitutional intrusion, and a per se rule is necessary to enforce its
drinking and driving laws to protect the public.138
However, the public‟s safety will be just as
protected without lowering individual‟s constitutional rights. In order to enforce drinking and
driving laws, Bohling claims that the probative value of BAC evidence is diminished by delayed
testing, making a per se rule vital.139
However, as previously determined, a warrant may be
obtained in the time it takes to transport a suspect to the hospital so that his or her blood is
withdrawn by a trained professional, and “the mere possibility of delay does not give rise to
exigency.”140
Additionally, administrative punishments are in place through implied consent
laws to stop drinking and driving.141
Studies have shown that administrative punishments for first
time offenders may reduce recidivism by up to 70%.142
Forcing someone to submit to a
chemical test after a refusal infringes on one‟s constitutional rights more than is necessary since
punishments are already in place to enforce DUI laws. Thus, advancements since Schmerber
have altered the balance of policy interests.
136
Bohling, 494 N.W.2d at 405 (citing Skinner, 489 U.S. at 602). 137
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 (1989). 138
Bohling, 494 N.W.2d at 403. 139
Id. at 405. 140
State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998) (explaining that the possibility of a delay in
obtaining a search warrant does not create an exigent circumstance). 141
See, e.g. MO. REV. STAT. § 577.041 (2011); WIS. STAT. ANN. § 343.305 (West 2011). 142
Sentencing, supra note 114 at 20.
22
Finally, even though some courts have reached decisions consistent with Bohling by
adopting a per se rule, just as many have found in opposition with a totality of the circumstance
rule.143
Bohling cites a few different jurisdictions that have adopted a per se rule, such as
Mississippi and Maine.144
However, the court in McNeely cites a number of jurisdictions that
have rejected the per se approach and adopted a totality of the circumstances test, such as Iowa
and Utah.145
Thus, this argument fails to provide any real support for the decision.
In contrast to Bohling, McNeely persuasively relies on their own interpretation of
Schmerber and attacks jurisdictions such as Bohling that have adopted a per se approach.146
Although it is impossible to interpret Schmerber with absolute certainty, an overly broad
interpretation adopted by the per se jurisdictions runs the risk of seriously infringing on the
public‟s constitutional protections, which Schmerber seems to warn against in the opinion.147
McNeely’s interpretation of Schmerber provides the more reasonable interpretation.
Schmerber states:
Particularly in a case such as this, where time had to be taken to bring the accused
to a hospital and to investigate the scene of the accident, there was no time to seek
out a magistrate and secure a warrant. Given these special facts, we conclude that
the attempt to secure evidence of blood-alcohol content in this case was an
appropriate incident to petitioner's arrest.148
Because the court explicitly references the extra time that had to be taken to investigate the scene
and transport the individual to the hospital as special facts, they seem to be implying that it was
143
See State v. McNeely, 358 S.W.3d 65, 70-75 (Mo. 2012) (providing examples of multiple jurisdictions that have
adopted a per se rule or a totality of the circumstances test). 144
Bohling, 494 N.W.2d at 403-06. 145
McNeely, 358 S.W.3d at 70-71. 146
Id. at 70-74. 147
See Schmerber v. California, 384 U.S. 757, 772 (1966) (stating that they reach the judgment only on the facts of
the record and do not want it to be extended). 148
McNeely, 358 S.W.3d at 74 (citing Schmerber, 384 U.S. at 772).
23
these circumstances that created the exigent circumstance.149
McNeely’s interpretation seems
more reasonable in light of the language used in Schmerber.
McNeely also attacks jurisdictions such as Bohling that have adopted a per se approach by
referencing Schmerber’s warning for overly broad interpretations:
It bears repeating, however, that we reach this judgment only on the facts of the
present record. The integrity of an individual's person is a cherished value of our
society. That we today hold that the Constitution does not forbid the States minor
intrusions into an individual's body under stringently limited conditions in no way
indicates that it permits ... intrusions under other conditions.150
As stated in McNeely, Schmerber explicitly warns against a per se rule, such as the one adopted
in Bohling. The court seems to imply that there are more severe ramifications from a broad
interpretation when the constitutional implications are considered.151
In light of McNeely’s interpretation of Schmerber and the advancements made since
Schmerber was decided, a totality of the circumstances test provides the best balance of society‟s
interest in preventing drunk driving with individuals‟ constitutional protections.
III. STATES SHOULD IMPOSE SPECIFIC REQUIREMENTS THAT MUST BE
PRESENT BEFORE PERMITTING A WARRANTLESS BLOOD DRAW
Advances since Schmerber have made a totality of the circumstances test the proper
balance of the states‟ interest in preventing drinking and driving while protecting individuals‟
constitutional rights. States examining the issue should consider a comprehensive checklist for
officers to follow, with a warrantless blood draw being the last option.
149
See id. 150
Id. at 74 (citing Schmerber, 384 U.S. at 772). 151
See id. at 74.
24
A. Universal Checklist for Officers
In order to assure that police officers do not infringe upon a citizen‟s constitutional rights,
states should impose a universal checklist for officers to fill out before being able to request a
warrantless blood withdrawal. Precedent decisions have held that when exigent circumstances
are a close call, officers should always attempt to obtain an electronic warrant.152
The state
should determine a period of time that they believe is objectively reasonable for a suspect to wait
prior to a blood draw.153
Once it is determined that an electronic warrant cannot be obtained in
the reasonable length of time, the officer should run a background check. If the suspect has no
prior DUI arrests and is driving on a valid driver‟s license, the officer should inform the suspect
of his or her rights under the state‟s implied consent laws and ask whether the suspect wants to
submit to a chemical test. If the suspect refuses, the officer should be required to inform the
suspect of the administrative penalties under the implied consent statute, including an extended
license suspension.154
However, if the suspect is driving on a suspended license or has been
arrested for DUI in the past, the officer should be permitted to gather evidence in any way
necessary, including a warrantless blood draw.
B. Obtaining a Paper or Electronic Warrant
In any circumstance, not just in DUI cases, an officer should always first attempt to
obtain a warrant before performing a search whenever possible. When exigent circumstances are
a close call, a police officer should always attempt to obtain an electronic warrant.155
Because of
the abundance of DUI cases in contemporary society, states should consider adopting a program
152
United States v. McEachin, 670 F.2d 1139, 1146 (D.C. Cir. 1981). 153
State v. Bohling, 494 N.W.2d 399, 408 (Wis. 1993) (Abrahamson, J., dissenting) (“The state had the burden to
show that there was insufficient time to use the telephonic search warrant procedure.”). 154
Administrative punishments, such as an extended license suspension or immobilizing the vehicle, have shown to
prevent future DUI arrests. For more information on preventative measures, see Sentencing, supra note 114 at 12. 155
McEachin, 670 F.2d at 1146.
25
for electronic warrants, similar to the one employed in Douglas County, Kansas, by providing
iPads to judges so they have the ability to electronically sign off on a warrant in a matter of
minutes.156
Although it may initially raise costs, the result will be a more efficient proceeding,
resulting in fewer appeals, and thereby saving tax payers money. The process will only continue
to become more efficient and less expensive as technology evolves. With electronic warrants
taking less than an hour to execute, there should not be many instances where an officer can
objectively determine that dissipation is an issue that must be addressed immediately.157
C. Implied Consent
Implied consent statutes should be used as an alternative way to deter drinking and
driving when the suspect refuses to take a chemical test and circumstances make it impossible to
obtain a warrant in a timely fashion. Studies show that administrative punishments through
implied consent laws have been an effective means of deterrence.158
Implied consent statutes
should enforce strict administrative punishments, such as revoking the suspect‟s license for a
period of one year for a first time offender, in addition to possibly impounding the individual‟s
vehicle.159
However, critics of implied consent statutes may question what happens if a suspect
is caught driving on a suspended or revoked license and circumstances make it impossible to
obtain an electronic warrant in a timely fashion.
D. Warrantless Blood Draw
Under a totality of the circumstances test, a warrantless blood draw should be the last
form of enforcement to be considered, but it may be unavoidable in certain situations. If an
individual‟s license has already been suspended or they are a repeat offender and circumstances
156
Diepenbrock, supra note 93 (stating that Douglas County employed the use of iPads because of the abundance of
DUI cases and the rapid dissipation rate of alcohol). 157
State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 158
Sentencing, supra note 114, at 12. 159
Id.
26
make it impossible to obtain a warrant in a timely fashion, an officer may be justified in
executing a warrantless blood draw. It is important to impose a punishment that will deter the
conduct in the future. Most states impose stricter penalties for second or third time offenders.160
Therefore, if the implied consent statute or previous arrest have not stopped the individual from
committing the offense, it may be necessary to obtain the evidence in any manner so that justice
may be served. However, this should be an absolute last resort that occurs only if it is impossible
to obtain a warrant in a timely fashion. What constitutes a timely fashion should be determined
by the jurisdiction.
In cases where a warrantless blood draw was executed, the burden should always be on
the prosecution to objectively show that the officer could not have obtained a warrant in a timely
fashion set forth by the court.161
If a court determines that it was reasonable for the officer to
determine that a warrantless blood draw was the only way to assure that justice is served, the
evidence should be held admissible without violating one‟s constitutional rights.
IV. CONCLUSION
Obtaining a blood sample without a warrant in DUI cases should be considered an
unreasonable search under the Fourth Amendment of the United States Constitution, except in
some very limited circumstances. The language of the landmark case of Schmerber v. California
is unclear as to whether dissipation should be considered an exception to the Fourth Amendment
as a per se exigent circumstance or whether special circumstances created the exigency.162
In
attempting to find the proper balance of the state‟s interest in preventing drinking and driving
and an individual‟s right to be free from illegal searches and seizures, advancements made since
160
8 AM. JUR. 2D AUTOMOBILES § 971 (2012). 161
State v. Bohling, 494 N.W.2d 399, 408 (Wis. 1993) (Abrahamson, J., dissenting) (“The state had the burden to
show that there was insufficient time to use the telephonic search warrant procedure.”). 162
See Schmerber, 384 U.S. at 771.
27
Schmerber make a totality of the circumstances test the most logical option. In the future, states
should consider employing a totality of the circumstance approach that is known to the officers
with a warrantless blood draw being the absolute last option.