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The United States Supreme Court has determined that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

The Court refused to adopt a per se rule that exigent circumstances always exist when an officer has probable cause to believe that a person is driving under the influence, and determined that when it comes to a warrantless blood draw, there must be a case by case, “fact-intensive, totality of the circumstances” approach to determining whether the exigency exception to the Fourth Amendment applies. The Court concluded that when officers in drunk-driving investigations can reasonably obtain a warrant before forcing a blood draw, they must do so.

Unfortunately, the Court showed its ignorance by discussing only “dissipating” blood alcohol content (BAC) and did not acknowledge that an individual’s blood alcohol content first actually rises after the consumption of alcohol before it declines. Missouri v. McNeely, 133 S. Ct. 1552 (April 12, 2013), Slip Opinion No. 11-1425

Attorney Jessica D’Varga handles OVI , criminal, and traffic cases as part of the defense team at The Law Offices of Saia & Piatt, Inc.