November-December 2012

SCOTUS grants certiorari in Missouri v. McNeely

Lauren Owens

TDCAA Research Attorney in Austin

In a move that could affect DWI prosecution nationwide, the Supreme Court of the United States granted certiorari in Missouri v. McNeely, a case involving a nonconsensual, warrantless blood draw after a DWI arrest. The court will soon determine whether the dissipation of alcohol from the blood alone is sufficient to implicate the exigent circumstances exception to the Fourth Amendment warrant requirement.
    The facts of the case are thus:  Tyler McNeely was arrested for DWI, and after refusing to provide a breath or blood sample, the arresting officer ordered a phlebotomist to take a blood sample without obtaining a warrant.1 The Supreme Court of Missouri held that the warrantless blood draw violated the Fourth Amendment because there were no “special facts” to justify the arresting officer’s failure to obtain a warrant before taking a sample of McNeely’s blood.2
     Missouri joined Utah, Iowa, and the Ninth Circuit in interpreting the Supreme Court’s holding in Schmerber v. California3 to require additional exigent circumstances beyond the natural dissipation of alcohol to justify a warrantless blood draw. These “special facts” have been held to include the need to investigate an accident or transport a defendant to the hospital for injuries.4 Other courts, including the highest courts in Wisconsin, Oregon, and Minnesota, have adopted a broader interpretation of Schmerber, holding that the dissipation of alcohol in the blood alone is an exigent circumstance sufficient to justify a warrantless blood draw.5
    The outcome of the case could lead to a dramatic increase in the number of DWI cases supported by blood evidence, and prosecutors around the nation will no doubt be anticipating the court’s decision. Oral arguments will likely be scheduled for early 2013.


1 State v. McNeely, 358 S.W.3d 65, 68 (Mo. 2012).
2 Id. at 75.
3 348 U.S. 757 (1966).
4 McNeely, 358 S.W.3d at 74-75.
5 Id. at 73.