Archive for August 26th, 2014

Can Police Legally Take a Blood Sample From a Driver Without His Consent?

Tuesday, August 26th, 2014

Last year, the United States Supreme Court issued its long-awaited decision in Missouri vs. McNeely, a DUI case that involved the right of police officers to forcefully take a blood sample from a driver without his consent or a search warrant. The Court ruled that absent any exigent circumstances, such a taking of blood constituted a violation of the 4th Amendment’s right to be free from unreasonable searches of the person. Natural dissipation of alcohol from the system (present in every case) did not constitute such an exigency.  (I am, incidentally, flattered and greatly honored that in his written opinion Chief Justice Roberts cited my book, Drunk Driving Defense (7th edition), as recognized legal authority in the field.)

Question:  Most states have "Implied Consent" laws which basically state that anyone who drives on the highways impliedly consents to submit to blood-alcohol testing.  Further, a refusal to do so can result in extended licenses suspensions and/or criminal punishment.  So, doesn’t the McNeely decision overrule this?  Is an officer permitted to forecefuly take a blood sample without that drivers express consent?

The state supreme courts have been silent about this….until now:


S.D. Supreme Court: No Implied Consent in DUI Cases

Sioux Falls, SD.  Aug. 21 — The South Dakota Supreme Court confirmed Thursday that police cannot collect blood samples from DUI suspects without consent or a warrant.

The ruling strikes down the state’s 2006 implied consent law that allowed police to draw blood from DUI suspects, by force if necessary.

The decision leaves legislators to decide whether to return to a previous law, which suspended the driver’s licenses of those who refuse a blood test, to write a new law or to do nothing.

A penalty for refusal was in place before and could be modified by incoming lawmakers. Some say a return to the old system would be wise.

“Everybody’s going to refuse it unless there’s some kind of penalty,” said Sen. Tim Begalka, R-Clear Lake.

Others, including the law’s author, Lee Schoenbeck, say the strike down means that police now will need to incorporate telephonic warrants for blood draws into their standard practices.

“It takes about five minutes,” Schoenbeck said.

The state high court’s ruling comes more than a year after the U.S. Supreme Court decision in Missouri vs. McNeely, which held that the natural dissipation of alcohol in the blood does not constitute an exigent circumstance justifying a warrantless blood draw in drunken driving cases.

Defense lawyers have argued since then that McNeely invalidated South Dakota’s implied consent law. South Dakota Attorney General Marty Jackley had argued that the decision did not deal a death blow to implied consent, as McNeely dealt with a different law in a different state…


It will be interesting to see how the other states decide to apply the U.S. Supreme Court’s decision.

Share