In State v. German, decided earlier this week, the SC Supreme Court walked back some of the more extreme language in State v. McCall, finding that SC Code 56-5-2946 is unconstitutional under the Fourth Amendment and the SC Constitution’s right to privacy to the extent that it allows warrantless blood draws in the absence of actual consent or exigent circumstances.

Below, we will review the implications of State v. German, including:

• Why actual consent or an exception to the Fourth Amendment’s warrant requirement is necessary before police can draw blood without a warrant,
• Why the SC Constitution’s explicit right to privacy applies to forced blood draws, and
• How some of our SC Supreme Court justices would throw the SC and federal Constitutions out the window if it helps law enforcement.

Are Forced Blood Draws Without a Warrant Constitutional in SC?

In Missouri v. McNeely, the US Supreme Court held that a warrant is required before police can order a blood draw without a warrant based upon probable cause unless exigent circumstances are present.

In State v. McCall, the SC Supreme Court then suggested that nearly every felony DUI case would qualify as exigent circumstances, signaling to law enforcement and prosecutors that they should continue ignoring the US Supreme Court and forcing blood draws without first seeking a warrant.

In State v. German, decided this week, the SC Supreme Court walked back the broad language of McCall that suggested police could ignore McNeely’s warrant requirement in nearly every felony DUI case, holding that actual consent is required before police can take blood without a warrant.

Consent is Required for a Warrantless Blood Draw

One exception to the Fourth Amendment’s warrant requirement is consent.

A finding of consent requires “a fact-specific determination of whether the suspect invoked her consent,” and “[t]he Fourth Amendment requires a finding that consent be given voluntarily
under the totality of the circumstances.”

SC’s implied consent laws cannot legislate consent – creating by statute a thing that the Fourth Amendment forbids, and there cannot be a “categorical exception to the general warrant requirement.” Consent must be voluntarily given, and “a valid finding of consent requires a suspect to be able to refuse or revoke consent.”

In German, the defendant did not consent to the blood draw:

• The state trooper “acknowledged that he could have procured a warrant, yet he decided to order the blood draw without one” because he believed that section 56-5-2946 authorized it,
• The defendant refused to sign the implied consent waiver form presented to her by the state trooper (the Court notes that the trooper gave her the wrong form anyway),
• There was no “implied consent” – the defendant was belligerent, obstinate, and did not agree to a blood draw, and
• The state trooper told her “Like it or not, we are getting a blood draw.”

At no point did the defendant agree to allow the blood draw, and the legislature’s attempt to force consent through legislation is unconstitutional and ineffective.

Or Exigent Circumstances

The Court in German identifies three situations where police can legally take a person’s blood for testing:

1. Pursuant to a warrant based upon probable cause,
2. When the suspect actually consents to the blood draw (not pursuant to legislatively mandated “implied consent”), or
3. When there are exigent circumstances that would justify the warrantless blood draw (pursuant to McNeely, which included a consideration of the availability of procedures to obtain a warrant, which were available in German according to the trooper).

South Carolina’s Constitutional Right to Privacy

The Court in German also held that the warrantless blood draw, in the absence of actual consent or exigent circumstances, violates the SC Constitution’s explicit right to privacy:

Turning to the instant case, we find the provision in our state constitution is implicated when law enforcement obtains a warrantless blood draw. As the United States Supreme Court recognized in Schmerber v. California, there is a constitutional right to privacy in one’s blood. 384 U.S. 757, 767 (1966)… Blood tests require piercing the skin and the extraction of a part of the person’s body, and a blood test provides law enforcement with a preservable sample that contains a person’s DNA and other medical information besides the BAC reading. Id. at 464. The drafters of our constitutional provision were concerned with the emergence of new technology enabling more invasive searches, and a blood test’s process certainly is one of the most invasive government searches a suspect may encounter…

Because he ordered the blood draw despite Appellant’s refusal, he violated Appellant’s right to be free from an unreasonable invasion of privacy.

The Court goes on to make it clear that legislatively imposed “implied consent” to a blood draw cannot be constitutional and violates the SC Constitution when there is no warrant:

At bottom, implied consent, as referred to in the impaired driver statutory scheme, is non-existent outside of matters involving the civil suspension or revocation of driver’s licenses. There is no constitutionally approved, statutory per se implied consent to a blood draw. Law enforcement’s demand for a warrantless blood test must be founded on an approved exception to the warrant requirement of the Fourth Amendment. A mandatory and forced blood draw is patently distinct from other modes of DUI investigation and, consequently, violates the South Carolina Constitution when administered without a warrant.

As with other types of searches, medical procedures, and a woman’s right to choose an abortion, the SC Constitution’s right to privacy affords much greater protection than the Fourth Amendment.

Justice Few’s Concurrence – We All Consent to Blood Draws as a Condition of Driving

Why do we have the Fourth Amendment, and why did the drafters of the SC Constitution include an express right to privacy?

They intended to protect us from government overreach – in the absence of 1) enumerated rights in a constitution and 2) judges who are willing to enforce those rights against the government that signs their paychecks, our government will not respect the rights of individuals.

Even in countries that have written constitutions, there is often a slippery slope into fascism and a police state.

When citizens do not demand their rights (and others’ rights), and when courts do not enforce those rights, we lose them. A Bill of Rights is nothing more than a historical piece of paper if the courts do not enforce it.

How does fascism take hold in a country that has a Bill of Rights and constitutional protections? Consider that at least one of our Supreme Court justices would ignore the Fourth Amendment and the SC’s right to privacy, finding that every person who drives a vehicle has consented to provide a blood sample.

Why? Because the legislature said so…

For Justice Few (the same justice who wrote in Planned Parenthood that he would approve a total ban on abortion in South Carolina and that the Fetal Heartbeat Act did not violate SC’s right to privacy because the courts “must defer to the legislative judgment,”) the constitutionality of the implied consent statute is not in question, and there is no need to consider the SC Constitution’s right to privacy.

Instead, the Court need only analyze the facts in light of whether the consent was valid, and Justice Few would find that the consent was valid because:

• The legislature said that we all consent (“German—like all adults who hold
  a driver’s license in South Carolina—is an adult. She made a voluntary decision to
  accept the privilege of driving in this State in exchange for granting consent to have
  her blood drawn under the circumstances of this case”),
• Although German was drunk and belligerent, she wasn’t drunk and belligerent when the legislature passed the implied consent law (“Importantly, German was not intoxicated when she voluntarily granted consent under the implied consent law”),
• The officer read a form to German that stated she did not have to give the blood sample (even though it was the wrong form, and she did not agree to give the blood sample),
• “There is no evidence she ‘refused’ to sign” the form” (although the officer wrote “refused to sign” on the form, Justice Few speculates that, “For all we know, she did not sign
  the form because she believed doing so was unnecessary in light of the implied
  consent law”), and
• The phlebotomist testified that German “was willing to have the blood drawn” (even though the officer had just told German, “Like it or not, we are getting a blood draw”).

According to Justice Few, German voluntarily consented to the blood draw, willingly gave the blood draw, and “[t]here is nothing in this record that indicates German withdrew or revoked the consent she impliedly gave.”

When the courts refuse to enforce the law or protect constitutional rights, what could go wrong? History has shown, over and over, that governments and law enforcement will forcefully take what they want from individuals…

Charleston, SC DUI Lawyers

Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense in the Charleston, SC area.

If you have been charged with DUI, DUAC, or any DUI-related offense, call Grant B. Smaldone now at (843) 808-2100 or contact us through our website to talk to a Charleston, SC DUI defense lawyer today.