Missouri v. McNeely

            The U.S. Supreme Court decided Missouri v. McNeely[1] in April of 2013. The Supreme Court upheld a trial court ruling suppressing evidence from a warrantless blood draw which the respondent refused but was taken anyway under Missouri's implied consent law. The Court said that the natural dissipation of alcohol in the blood stream, without any other factors that would make a blood draw more urgent, was not enough of an exigent circumstance to overcome the 4th Amendment prohibition on unreasonable search and seizure. The Court did not, however, explicitly prohibit warrantless blood draws under state implied consent laws—it just made them more difficult to justify.

            The U.S. Supreme Court vacated and remanded two DUI cases in the wake of its decision in McNeely. In State v. Brooks[2], a Minnesota case, the defendant argued that under McNeely, the dissipation of alcohol in his bloodstream was not a sufficient enough justification to order a blood draw without a warrant. The Supreme Court of Minnesota followed the Supreme Court’s ruling that the dissipation did not by itself create the exigency required for a warrantless search, but upheld the search on other grounds (namely that the defendant consented after being informed that refusal had a penalty under Minnesota’s implied consent law[3]). The second petition for certiorari to the Supreme Court was denied.[4]

            In Aviles v. State[5], the Court of Appeals of Texas followed McNeely in specifically asking for exigent circumstances to justify a warrantless blood draw. The state of Texas suggested that the court adopt a test balancing a (an allegedly) small invasion of privacy of the defendant against the (stated) larger interest of public safety and enforcing the laws. The court instead rejected that argument as they had before[6] and insisted on the McNeely totality of the circumstances test. Based on that standard, the court in Aviles reversed the trial court’s judgment allowing the warrantless blood test results into evidence and remanded the case for a new trial.

Other courts have also followed the majority opinion in McNeely. In People v. Schaufele[7], the Colorado Supreme Court en banc adopted the majority opinion over United States Chief Justice John Roberts’s concurring/dissenting opinion in McNeely, which would allow an officer to perform a warrantless blood draw if he or she reasonably believed that it was impossible to obtain a warrant before the suspect’s blood alcohol level returned to a level from which intoxication could not be proven. Since the state did not argue that the trial court had improperly performed the “totality of the circumstances” test and only challenged the test used by the court, the Colorado Supreme Court upheld the suppression of the defendant’s blood test results.

            At least one case has extended the McNeely rationalization to drugged driving, too. In Byars v. State[8], the Supreme Court of Nevada used Nevada’s drugged driving per se statute[9] to show that drugged driving testing directly parallels DUI testing.[10] The court found the portion of Nevada’s implied consent law that allowed officers to use force to obtain a blood sample[11] to be unconstitutional because it left suspects unable to revoke consent to the search (in this case, the testing). The court went on to say that just as in McNeely, the dissipation of THC (the metabolite of marijuana) from the bloodstream did not create an exigent circumstance which justified the warrantless blood draw performed on the defendant on this case. However, the court also held that the officer conducted the search in good faith[12], believing that he was following the law. The court in Byars consequently did not overturn the conviction, even though the evidence was acquired pursuant to a statute later found to be unconstitutional[13].

Some courts are still seeing a time lag in the application of the McNeely decision and are using the same rationale seen in Byars to refuse to suppress improperly-obtained blood test results. In People v. Youn[14], which was decided after McNeely, the Court of Appeal of California held that a warrantless blood draw performed solely because of the dissipation of alcohol from the bloodstream did not have to be suppressed because it was taken before McNeely was decided. Under the previous controlling precedent[15], the dissipation of alcohol from the bloodstream was the only exigent circumstance needed to perform a test without a warrant. Pursuant to the cases cited above and others[16], since the officer in this case ordered the blood draw relying in good faith on then-applicable appellate precedent, the results were not suppressed. This phenomenon will presumably cease to occur in the next couple of years.

            The “totality of the circumstances” exigency exception is not an impossible standard to meet. In State v. Stavish[17], the Court of Appeals of Minnesota ruled that the trial court erred in suppressing the results of a warrantless blood draw. In this case, the driver had hit and killed another person in one county, had been transported to another county for medical care, and was likely going to be transported to a third county for further care. The court cited several factors which distinguished this case from McNeely. The court suggested that gathering evidence for a criminal vehicular homicide case was much more important than gathering evidence for a routine DUI case (like McNeely). It also cited the portion of Minnesota’s DUI law[18] which required a blood sample to be taken within two hours of police response as evidence that the officer properly sought to go ahead and get a blood test. Finally, and perhaps most convincingly, the fact that the defendant’s medical care could have interfered with or invalidated his blood test results was reason to obtain a test before that important evidence was destroyed. These factors, together with the inherent exigency of alcohol in the bloodstream, allowed the court to rule that the warrantless blood draw was properly obtained in this case.

            Missouri v. McNeely influenced cases about other types of Fourth Amendment searches, too. In United States v. Wurie[19], the dissent cited McNeely to argue for a case-by-case determination of whether or not it would be proper for law enforcement to search the phone of an arrestee. The dissent also used it to point out that it was not necessary to establish a bright line rule on whether or not cell phones could be searched incident to arrest since the Supreme Court failed to establish a bright-line rule on another type of search in McNeely. However, the majority opinion pointed out that McNeely dealt with exigent circumstances, not the much broader search-incident-to-arrest doctrine.

In 2014, the Supreme Court decided in Riley v. California[20] (in conjunction with the appeal of the Wurie case) that police officers typically need to secure a search warrant before searching the cell phone of someone they have arrested. The Court cited McNeely to acknowledge that there might be exigent circumstances that would require police to respond to the possibility that data related to a crime might be remotely wiped from the phone (despite the ease of using Faraday bags to block any outside signals to the phone, as suggested in an amicus brief by a group of criminal law professors). However, it also cited McNeely to acknowledge that the process of getting a warrant is much faster than it used to be and therefore those exigent circumstances that would allow a warrantless search of a phone happen less often than in the past.

            We have seen the wide-reaching effects of Missouri v. McNeely in DUI and other cases across the legal system since the decision was handed down from the Supreme Court. Some cases have led to the exclusion of improperly-obtained evidence, some have led to the inclusion of such evidence through another justification, and a few cases have even identified proper exigent circumstances in which warrantless blood draws are still permissible. As the legal system discharges its pre-McNeely backlog of DUI cases, new questions of interpretation and application of the case surely await. We see this presently in drugged driving per se cases and will probably also encounter heretofore unseen scenarios. As a result, the full impact of Missouri v. McNeely likely will not be felt for years to come.

            Update: On June 23, 2016, the Supreme Court of the United States slightly distinguished McNeely and held in Birchfield v. North Dakota[21] that states are not permitted to criminalize refusal of warrantless blood draws incident to a DUI arrest but are permitted to criminalize refusal of warrantless breath tests incident to a DUI arrest. You can read the opinion here.

Appendix

This is a list of published state appellate court cases which discuss and/or analyze the Missouri v. McNeely opinion in their main opinion and have not yet been superseded in some manner. (Current through 6/1/2015)

State v. Butler, 232 Ariz. 84, 302 P.3d 609 (2013)

People v. Rossetti, 2014 Cal. App. LEXIS 950 (Cal. App. 1st Dist. Oct. 22, 2014)

People v. Youn, 229 Cal. App. 4th 571, 176 Cal. Rptr. 3d 652 (2014)

People v. Jones, 231 Cal. App. 4th 1257, 180 Cal. Rptr. 3d 407 (2014)

People v. Harris, 225 Cal. App. 4th Supp. 1, 170 Cal. Rptr. 3d 729 (2014)

People v. Harris, 234 Cal. App. 4th 671, 184 Cal. Rptr. 3d 198 (2015)

People v. Toure, 232 Cal. App. 4th 1096, 181 Cal. Rptr. 3d 857 (2015)

People v. Schaufele, 2014 CO 43, 325 P.3d 1060

People v. Barry, 2015 Colo. App. LEXIS 95 (Colo. Ct. App. Jan. 29, 2015)

Flonnory v. State, 109 A.3d 1060 (Del. 2015)

Williams v. State, 296 Ga. 817, 771 S.E.2d 373 (2015)

State v. Won, 134 Haw. 59, 332 P.3d 661 (2014)

State v. Santiago, 134 Haw. 180, 339 P.3d 534 (Ct. App. 2014)

State v. Halseth, 339 P.3d 368 (Idaho 2014)

State v. Boehm, 346 P.3d 311 (Idaho Ct. App. 2015)

People v. Armer, 2014 IL App (5th) 130342

People v. Gaede, 2014 IL App (4th) 130346, 386 Ill. Dec. 488, 20 N.E.3d 1266

People v. Hasselbring, 2014 IL App (4th) 131128, 386 Ill. Dec. 843, 21 N.E.3d 762

People v. Harris, 2015 IL App (4th) 140696

State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794 (2014)

Williams v. Commonwealth, 2015 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 27, 2015)

Commonwealth v. Duncan, 2015 Ky. LEXIS 1614 (Ky. May 14, 2015)

State v. Brooks, 838 N.W.2d 563 (Minn. 2013)

State v. Stavish, 852 N.W.2d 906 (Minn. Ct. App. 2014)

Stevens v. Comm'r of Pub. Safety, 850 N.W.2d 717 (Minn. Ct. App. 2014)

State v. Bernard, 844 N.W.2d 41 (Minn. Ct. App. 2014)

O'Connell v. State, 858 N.W.2d 161 (Minn. Ct. App. 2015)

State v. Reed, 400 S.W.3d 509 (Mo. Ct. App. 2013)

Byars v. State, 2014 Nev. LEXIS 111 (Nev. 2014)

State v. Adkins, 433 N.J. Super. 479, 81 A.3d 680 (Super. Ct. App. Div. 2013)

State v. Jones, 437 N.J. Super. 68, 96 A.3d 297 (Super. Ct. App. Div. 2014)

State v. McCrary, 2014 N.C. App. LEXIS 1081 (N.C. Ct. App. Oct. 21, 2014)

State v. Granger, 761 S.E.2d 923 (N.C. Ct. App. 2014)

State v. Dahlquist, 750 S.E.2d 580 (N.C. Ct. App. 2013)

State v. Adkins, 2015 N.J. LEXIS 393 (N.J. May 4, 2015)

People v. Heidgen, 22 N.Y.3d 259, 980 N.Y.S.2d 320, 3 N.E.3d 657 (2013)

State v. Smith, 2014 ND 152, 849 N.W.2d 599

McCoy v. N.D. DOT, 2014 ND 119, 848 N.W.2d 659

State v. Birchfield, 2015 ND 6, 858 N.W.2d 302

State v. Baxter, 2015 ND 107

State v. Greer, 2013-Ohio-4267 (Ct. App.)

State v. Jones, 2013-Ohio-2375 (Ct. App.)

State v. Little, 2014-Ohio-4871, 23 N.E.3d 237 (Ct. App.)

State v. Clark, 2014-Ohio-4873, 23 N.E.3d 218 (Ct. App.)

State v. Mazzola, 356 Or. 804, 345 P.3d 424 (2015)

State v. Ritz, 270 Or. App. 88, 347 P.3d 1052 (2015)

Sprecher v. DOT, Bureau of Driver Licensing, 2014 Pa. Commw. LEXIS 475 (Pa. Commw. Ct. Sept. 29, 2014)

Faircloth v. DOT, Bureau of Driver Licensing, 2014 Pa. Commw. LEXIS 433 (Pa. Commw. Ct. July 1, 2014)

Siers v. Weber, 2014 S.D. 51, 851 N.W.2d 731

State v. Wells, 2014 Tenn. Crim. App. LEXIS 933 (Tenn. Crim. App. Oct. 6, 2014)

State v. Kennedy, 2014 Tenn. Crim. App. LEXIS 930 (Tenn. Crim. App. Oct. 3, 2014)

State v. Walker, 2014 Tenn. Crim. App. LEXIS 777 (Tenn. Crim. App. Aug. 8, 2014)

State v. Reynolds, 2014 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. Nov. 12, 2014)

State v. Gardner, 2014 Tenn. Crim. App. LEXIS 1023 (Tenn. Crim. App. Nov. 12, 2014)

State v. Turner, 2014 Tenn. Crim. App. LEXIS 1173 (Tenn. Crim. App. Dec. 30, 2014)

State v. Brown, 2015 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. Apr. 30, 2015)

State v. Anderson, 2014 Tex. App. LEXIS 11151 (Tex. App. Beaumont Oct. 8, 2014)

McNeil v. State, 2014 Tex. App. LEXIS 8519 (Tex. App. San Antonio Aug. 6, 2014)

Aviles v. State, 2014 Tex. App. LEXIS 8508 (Tex. App. San Antonio Aug. 6, 2014)

Forsyth v. State, 438 S.W.3d 216 (Tex. App. 2014)

Douds v. State, 434 S.W.3d 842 (Tex. App. 2014)

Weems v. State, 434 S.W.3d 655 (Tex. App. 2014)

Sutherland v. State, 436 S.W.3d 28 (Tex. App. 2014)

Lyssy v. State, 429 S.W.3d 37 (Tex. App. 2014)

Gore v. State, 451 S.W.3d 182 (Tex. App. 2014)

Cole v. State, 454 S.W.3d 89 (Tex. App. 2014)

State v. Garcia, 457 S.W.3d 546 (Tex. App. 2015)

Chidyausiku v. State, 457 S.W.3d 627 (Tex. App. 2015)

State v. Villarreal, 2014 Tex. App. LEXIS 645 (Tex. App. Corpus Christi Jan. 23, 2014)

Smith v. State, 2014 Tex. App. LEXIS 12372 (Tex. App. Corpus Christi Nov. 13, 2014)

Perez v. State, 2015 Tex. App. LEXIS 2492 (Tex. App. Houston 1st Dist. Mar. 17, 2015)

State v. Tercero, 2015 Tex. App. LEXIS 3284 (Tex. App. Houston 1st Dist. Apr. 2, 2015)

Huff v. State, 2015 Tex. App. LEXIS 3401 (Tex. App. San Antonio Apr. 8, 2015)

State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 849 N.W.2d 867

State v. Reese, 2014 WI App 27, 353 Wis. 2d 266, 844 N.W.2d 396

State v. Hart (In re Hart), 2013 WI App 94, 349 Wis. 2d 528, 835 N.W.2d 292

State v. Tullberg, 2014 WI 134, 359 Wis. 2d 421, 857 N.W.2d 120

State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834

State v. Foster, 2014 WI 131, 360 Wis. 2d 12, 856 N.W.2d 847

State v. Blatterman, 2015 WI 46



[1] Missouri v. McNeely, 133 S. Ct. 1552 (2013).

[2] State v. Brooks, 838 N.W.2d 563 (Minn. 2013).

[3] We see this phenomenon occur elsewhere (for example, in State v. Smith, 2014 ND 152). Merely informing a DUI suspect that refusal to take the implied consent blood test will have legal consequence is not considered coercion, and therefore consent gleaned in that situation will be valid to override the warrant requirement.

[4] Brooks v. Minnesota, 134 S. Ct. 1799 (2014).

[5] Aviles v. State, 2014 Tex. App. LEXIS 8508 (Tex. App. San Antonio Aug. 6, 2014).

[6] Weems v. State, 434 S.W.3d 655 (Tex. App. San Antonio 2014).

[7] People v. Schaufele, 2014 CO 43, 325 P.3d 1060.

[8] Byars v. State, 2014 Nev. LEXIS 111 (Nev. 2014).

[9] Nev. Rev. Stat. Ann. § 484C.110

[10] 21 states (Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Montana, Nevada, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and Wisconsin) have drugged driving per se statutes. Montana, Nevada, Ohio, Virginia, and Washington have specifically defined levels at which users are held to be impaired; it seems reasonable to assume that the argument saying dissipation of THC (or other prohibited substance; substances included in these laws vary by state) in the bloodstream creates an exigent circumstance (and therefore justification for a warrantless blood draw) would surface in these states first/most prominently.

[11] Nev. Rev. Stat. Ann. § 484C.160 (7)

[12] See, e.g., United States v. Leon, 468 U.S. 897 (1984); Illinois v. Krull, 480 U.S. 340 (1987); Ariz. v. Evans, 514 U.S. 1 (1995).

[13] See generally Illinois v. Krull, 480 U.S. 340 (1987).

[14] People v. Youn, 229 Cal. App. 4th 571, 176 Cal. Rptr. 3d 652 (2014).

[15] Schmerber v. California, 384 U.S. 757 (1966).

[16] See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011).

[17] State v. Stavish, 852 N.W.2d 906 (Minn. Ct. App. 2014).

[18] Minn. Stat. § 169A.20

[19] United States v. Wurie, 728 F.3d 1 (3d Cir. 2013).

[20] Riley v. California, 134 S. Ct. 2473 (2014).

[21] Birchfield v. North Dakota, ___ U.S. ___, No. 14-1468, slip opinion (2016).