State v. McCall: Is a Warrantless Blood Draw Now Okay In Every Felony DUI in SC?
In State v. McCall, decided yesterday, February 5, 2020, the SC Supreme Court upheld a warrantless blood draw in a felony DUI case finding that there were “exigent circumstances” in a situation that describes every felony DUI case.
Although the US Supreme Court has held in Missouri v. McNeely that a warrant is required before taking blood unless there are exigent circumstances, the SC Supreme Court now says that any serious traffic accident is enough for exigent circumstances. That’s every felony DUI case.
Although the US Supreme Court held that police must attempt to get a warrant unless it is impracticable, noting that advances in technology have made it possible to obtain warrants by telephone or computer across the country (including SC), the SC Supreme Court now says it is not necessary for officers to even attempt to obtain a warrant before getting a blood draw if there was a serious accident.
Although the US Supreme Court overruled Schmerber v. California to the extent that it meant no warrant is necessary when there is a DUI accident and a danger of alcohol dissipating because of the advances in the past 50 years that allow an officer to obtain a warrant more quickly, the SC Supreme Court mostly based its decision on Schmerber, relying heavily on the fact that there was a DUI accident and a danger of alcohol or other drugs dissipating.
Although the US Supreme Court rejected the government’s argument that the dissipation of alcohol per se creates exigent circumstances, the SC Supreme Court now says that the dissipation of alcohol creates exigent circumstances that justify a warrantless blood draw, an officer’s suspicion of drug use is more urgent because drugs dissipate more quickly, and the fact that there was an accident “places this case much higher on the “exigency spectrum.’”
Every. Felony. DUI.
The SC Supreme Court has effectively excluded all felony DUIs – DUIs where there is an accident and injuries, alcohol may dissipate from the driver’s bloodstream, and the officer suspects drug use – from Missouri v. McNeely’s holding.
What are Exigent Circumstances that Would Allow a Warrantless Blood Draw?
What are exigent circumstances?
In the context of the Fourth Amendment, you could say that it means an emergency situation that is unfolding quickly that justifies an exception to the Fourth Amendment’s warrant requirement.
For example, police or other government agents do not need to get a warrant before entering a home or searching a vehicle if:
- A person needs emergency assistance inside a home (“I hear a baby crying Bob. You hear that baby crying?”);
- The officers are in “hot pursuit” of a suspect;
- A building is burning, and they are there to put the fire out;
- Evidence will be destroyed if police do not act quickly (“I hear the toilet flushing Bob. There goes the evidence…”); or
- The suspect is in a vehicle that could drive away while police are getting a warrant (the “automobile exception”).
In the context of a felony DUI blood draw, exigent circumstances = circumstances that would prevent the officer from getting a warrant or that would cause excessive delay before drawing the suspect’s blood.
What Did the US Supreme Court Mean by Exigent Circumstances?
The US Supreme Court in Missouri v. McNeely said that exigent circumstances that would make getting a warrant impracticable (extremely difficult or impossible) will excuse the warrant requirement in a felony DUI blood draw:
But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.
The Court found that taking McNeely’s blood without consent and without a warrant violated the Fourth Amendment where the government did not show circumstances that would have made getting a warrant impracticable.
Dissipation of Alcohol Alone is not an Exigent Circumstance
The McNeely Court rejected the government’s argument that the dissipation of alcohol in the system is, of itself, an exigent circumstance that justifies not getting a warrant. They noted that, in any DUI case, there is going to be a delay in getting the blood sample whether or not police officers are required to get a warrant because the suspect will have to be transported to a medical facility where someone with the proper training can draw the suspect’s blood:
Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.
When there is a process in place for obtaining a search warrant quickly, another officer can work on getting the warrant as the arresting officer is investigating the crash or transporting the suspect to a medical facility:
Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.
Police cannot say, “I don’t need to get a warrant because of exigent circumstances,” when they could have gotten a warrant by making a phone call or sending another officer to get the warrant.
When, despite procedures in place to get a warrant, the officer does not even bother to attempt to get a warrant, the officer was not prevented from getting a warrant by exigent circumstances. They didn’t get a warrant because they didn’t want to be bothered with getting a warrant.
That does not justify an exception to the Fourth Amendment.
SC Law Enforcement Has the Ability to Obtain Search Warrants Quickly
The US Supreme Court also notes that, in the 47 years since Schmerber v. California was decided (the case that the SC Supreme Court relied on to find a warrant was not necessary), advances in technology have allowed for warrants to be processed quickly. The SC Supreme Court and SC’s trial judges know that SC officers, in most if not all counties, also now have the ability to obtain warrants with minimal delay.
The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1.
Most states (including SC), in the nearly 50 years since Schmerber, have implemented procedures that allow officers to quickly obtain warrants by telephone, email, or videoconferencing, and there are standard fill-in-the-blank forms for DUI warrant applications:
States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk driving investigations.
Nowhere in SC should a court blindly accept that law enforcement is unable to get a search warrant for a felony DUI blood draw unless the government can show that 1) there are no procedures in place for officers to obtain warrants telephonically or by email, or 2) the officer attempted to obtain a warrant and was unable.
What Does the SC Supreme Court Mean by Exigent Circumstances?
The SC Supreme Court’s holding in State v. McCall can be summed up as: “Any felony DUI is an exception to the warrant requirement for a blood draw.”
Wait, that’s not what they said… Isn’t it, though?
McCall Could Have Been Decided Based on Express Consent
Based on the facts contained in the Supreme Court’s opinion, they could have said, “McCall expressly consented to the blood draw, as evidenced by the testimony and his signature on the consent form. Because we find that no warrant was necessary in light of McCall’s express consent, we need not reach the remaining issues.”
According to the officer and the nurse who took the blood sample, McCall consented and signed a consent form:
According to McAlhany, McCall agreed to a blood and urine test and signed the implied consent form while lying on the stretcher. Further, the nurse administering the tests noted that she would never collect a person’s blood if he resisted and that McCall at no point objected to the tests.
McCall said that he did not sign the form. Did he? The Supreme Court does not reference whether a form was entered into evidence, whether his signature was on it, or what the trial court’s findings were regarding the consent form that the officer and nurse say that he signed.
If he signed a consent form and if the consent was valid, the SC Supreme Court didn’t need to go any further with their analysis to determine that a warrant wasn’t necessary. Instead, they glossed over the issue of express consent and continued to explain why no warrant is ever needed for a felony DUI blood draw in SC.
The SC Supreme Court Finds that Dissipation of Alcohol is an Exigency Justifying a Warrant Exception
The SC Supreme Court notes that the US Supreme Court has decided the alcohol-dissipation-exigency issue in two separate cases, Schmerber and McNeely:
While the exception may apply in numerous settings, see id. at 148–49, in the context of a suspected impaired driver, the rationale derives in part from the destruction of evidence—that evidence of impaired driving would dissipate in the bloodstream during the time needed to procure a warrant. Two Supreme Court cases guide our exigency discussion: Schmerber and McNeely.
The Court then goes on to ignore McNeely’s main holding – that the dissipation of alcohol alone does not justify a warrantless draw, a holding that partially overrules Schmerber.
Instead, they then focus on Schmerber’s holding (again, overruled in McNeely) that the dissipation of alcohol justifies a warrantless blood draw because 1) it took time to transport the defendant to the hospital, 2) it took time to investigate the accident, and 3) there was no time to get a warrant from a magistrate:
After noting that alcohol in the blood begins to dissipate shortly after consumption ends, the Supreme Court held the blood test—in that specific case—did not violate the Fourth Amendment because 1) time had elapsed to take the defendant to the hospital for treatment, 2) time was spent investigating the accident, and 3) there was no time to secure a warrant from a magistrate.
What the SC Supreme Court ignores and does not reference in the McCall opinion is that the US Supreme Court, nearly 50 years later in McNeely, held that a warrantless blood draw under similar circumstances does violate the Fourth Amendment because 1) they’re going to transport the defendant to the hospital whether they get a warrant or not, 2) another officer can get the warrant while the arresting officer is investigating the accident, and 3) in the nearly 50 years since Schmerber was decided, technology has developed to allow officers to obtain warrants much more quickly.
So, the dissipation of alcohol, despite the US Supreme Court’s holding in McNeely, is now an exigent circumstance justifying a warrantless blood draw in SC. Which describes every suspected DUI.
The Dissipation of Drugs is an Even Greater Exigency
If the dissipation of alcohol is not enough (the US Supreme Court has said it’s not enough), then a warrantless blood draw is justified by the dissipation of drugs in a person’s system, which the SC Supreme Court says will dissipate more quickly than alcohol (I don’t see how that could be true, but I’m no toxicologist).
The SC Supreme Court uses this to distinguish McCall from McNeely:
Finally, unlike the trilogy of cases decided by the Supreme Court, officers quickly believed that McCall was impaired by a substance other than alcohol. While alcohol has a relatively steady dissipation rate, other substances dissipate much faster. Without immediately knowing the substance’s identity, officers could not possibly know how long it would remain in McCall’s blood, thus increasing the urgency.
So, if the officer suspects drug use instead of or in addition to alcohol consumption, the danger of the drugs dissipating from the suspect’s system even more quickly than alcohol creates an exigent circumstance that justifies a warrantless blood draw. Which describes, potentially, every DUI.
If There is an Accident, that is an Exigency that Justifies a Warrantless Blood Draw
When the SC Supreme Court acknowledges that the US Supreme Court has held that the dissipation of drugs, like the dissipation of alcohol, is not alone an exigent circumstance, they go on to say that, when there is a serious accident, that creates an exigency that justifies a warrantless blood draw:
While McNeely makes it clear that the natural dissipation of drugs cannot by itself qualify as an exigency, the seriousness of the accident places this case much higher on the “exigency spectrum.” Mitchell, 139 S.Ct. at 2533 (noting the car accident in Schmerber “heightened” the “degree of urgency common to all drunk-driving cases,” thereby placing it higher on the “exigency spectrum”).
The Court also recognizes that no one fact can support an exigency in a DUI blood draw case and that the court must look at the “totality of the circumstances:”
We recognize any one fact alone may not support exigency; however, we find the trial court thoroughly analyzed the totality of the circumstances…
Their conclusion? Dissipation of alcohol or drugs (every DUI case) + a serious accident (every felony DUI case) = exigent circumstances that justify a warrantless blood draw. Every felony DUI.
Did the Officer Have Time to Get a Warrant?
Although the SC Supreme Court does not say it, it’s clear that the officer did not attempt to get a search warrant before the blood draw. The Court notes that the officer took two hours before he arrived at the hospital, and yet implies that the 90 minutes the officer said it would take to get a warrant was too long for it to be practical:
While McCall argues that officers had ample time to obtain a warrant, McAlhany rightfully secured the scene and thoroughly investigated the accident before arriving at the hospital two hours later. We also do not believe obtaining a warrant was practical, as McAlhany testified it likely would have taken at least ninety minutes to obtain one after 5 p.m.
It’s as if the SC Supreme Court is assuming that the arresting officer must personally drive to a magistrate and request a search warrant, and there are no other officers who could have gotten the search warrant (which would take 90 minutes according to the officer) during the two hours before the arresting officer arrived at the hospital.
It was a serious accident requiring extensive investigation. At least ten officers responded.
The SC Supreme Court ignored the US Supreme Court’s admonishment in McNeely that one officer could get the warrant as other officers investigate the accident scene and transport the suspect to the hospital:
…an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.
Instead, the SC Supreme Court finds that it would have been impractical for another officer to obtain the warrant, inexplicably citing the fact that there were ten officers on the scene as a reason to not get a warrant…
Is SC’s Implied Consent Statute Unconstitutional?
Finally, the SC Supreme Court says that SC’s implied consent statute, which permits officers to take blood draws without consent, might be unconstitutional and cites multiple courts that have found similar statutes unconstitutional.
First, it is unconstitutional, after Missouri v. McNeely. A warrantless blood draw without exigent circumstances violates the Fourth Amendment. SC’s implied consent statute makes no reference to exigent circumstances and instead authorizes police to take blood without a warrant in every felony DUI.
Second, “Because we affirm based on exigent circumstances, we need not reach the question concerning whether a warrantless blood draw pursuant to section 56-5-2946 is constitutional” is a cop-out, plain and simple.
If the statute is unconstitutional, why would they reference it and then deny McCall’s appeal? “Your constitutional rights were probably violated, but we will save that question for another day?”
Charleston, SC DUI Lawyer
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.