Supreme Court Considers Blood Test Without Warrants

The U.S. Supreme Court will soon make a decision on the constitutionality of warrantless blood tests to determine blood alcohol content of drivers pulled over and suspected of driving under the influence. On Wednesday, January 9, 2013, lawyers presented arguments to the Supreme Court for a case that began in Missouri. A police officer pulled Tyler McNeely of Missouri over after witnessing him speed and swerve; McNeely refused to have a breath test, and the officer drove McNeely to a hospital where a technician took a blood sample from the handcuffed McNeely. The results of the test showed that McNeely had a blood alcohol content of .154.

Though McNeely both failed field sobriety tests and slurred while speaking, the arresting officer chose not to obtain a warrant. This caused both the lower court and the Missouri Supreme Court to exclude the blood test from evidence; the courts determined that the test had violated McNeely’s Fourth Amendment rights.

Lawyers for Missouri and the Obama Administration claim that taking time to obtain a warrant would hinder officers because the alcohol would dissipate into the blood and blood alcohol evidence could potentially be destroyed.

Justices have considered both these problems the delay could cause as well as the intrusive methods of obtaining the blood alcohol content through a needle. Though all fifty states currently have an implied consent law, nearly half ban warrantless blood tests.

Virginia’s implied consent law allows a blood test without a warrant in three situations:

1. If the officer has probable cause that the driver is driving under the influence of drugs (along with alcohol or JUST drugs).

2. If the driver is unable to submit to a breath test.

3. If a breath test is unavailable.

Otherwise, Virginia implied consent REQUIRES a breath test.

photo credit: jeffmason

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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