May-June 2013

What to do about Missouri v. McNeely

W. Clay Abbott

TDCAA DWI Resource Prosecutor in Austin

Summary of Missouri v. McNeely
No. 11-1425; 4/17/13 (8-1)

Does the inevitable dissipation of alcohol in blood alone constitute an ­automatic exigency to support a non-consensual, warrantless blood test ­during a DWI investigation?

Holding (Sotomayor, J.):
No, but—depending on the “totality of the circumstances” in a particular case—an exigency may develop. Otherwise, a warrant is required.

Concurring in Part (Kennedy, J.)
Would limit holding to the exact facts in issue.

Concurring and dissenting (Roberts, C.J., Breyer, & Alito, J.J.):
The totality of the circumstances test is fine in general, but drunk-driving ­cases are a discrete class, and the court should provide more guidance.

Dissenting (Thomas, J.):
Yes. “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance.”

Like many significant cases from the U.S. Supreme Court, Missouri v. McNeely,1 leaves more questions than it answers. The fractured majority opinion, written by Justice Sotomayor, held that inevitable dissipation of alcohol in blood alone does not constitute an automatic exigency to support a warrantless blood test during a DWI investigation. The opinion, however, noted that depending on all the circumstances in a particular case, an exigency may develop. Without an adequate showing of exigent circumstances, a warrant is required, the court concluded.
    The ultimate impact of this decision on mandatory blood draw statutes like Texas has in Transportation Code Chapter 724 is unclear, but a few conclusions are certain. First and foremost, this case did not rule that Texas’s—or any other—mandatory blood-draw law was unconstitutional. Justice Sotomayor in footnote 9 of the majority opinion cited a number of states’ mandatory blood-draw provisions, not to declare them unconstitutional, but rather as support for her conclusion that a reasonable expectation of privacy against involuntary blood draws exists, placing DWI blood draws under the Fourth Amendment. She made positive note of implied consent statutes generally and reiterated the holding in South Dakota v. Neville,2 that they do not violate the Fifth Amendment.
    I am sure many defense counsel will cite McNeely as the end of everything related to blood evidence in DWI cases, but this is just not so. The opinion of the Supreme Court is endorsed in its entirety by only four justices. There assuredly will be subsequent opinions on the issue, and it seems very likely that those future decisions will include opinions concerning mandatory draw laws.
   Further, the majority opinion does not say that exigent circumstances can never exist to justify a warrantless blood draw in a DWI case, but rather that they did not exist in McNeely. Missouri argued only alcohol elimination as an exigent circumstance and sought to have only that issue resolved by the court. The majority opinion clearly upholds the decision in Schmerber v. California.3 Schmerber involved a crash, and testimony was introduced that a long delay would be necessary to obtain a warrant for blood; in its decision, the Supreme Court said the non-consensual blood draw was justified by exigent circumstances. In McNeely the majority of the court found that metabolism of alcohol alone does not create exigency. The majority opinion also found that “unreasonable” delay or the inability to procure judicial review could create exigency. Justice Sotomayor simply scolded Missouri for not trying.
    So how does this impact the provisions of Transportation Code §724.012(b) requiring an officer to obtain a chemical sample (blood, for all practical purposes) in cases of crashes, DWI with a child, and felony DWI? As mentioned before, §724.012 was among those cited in footnote 9 without being overruled. But because the Supreme Court rejected per se exigency and firmly held exigency must be found on a case-by-case basis, there is certain to be increased litigation.
    Nothing in the opinion relieved officers of their statutory obligation to draw blood in these circumstances. Nothing in the opinion prevents officers from drawing blood if exigent circumstances exist in the specific investigation. The opinion simply requires the State to establish exigency by showing more than the fact that the defendant’s liver is destroying evidence with each passing moment. (Special thanks to Justice Thomas who in his dissent seems to be the only one who gets that.) A crash, a child passenger, or any other complicating factor when added to metabolization may create exigency under McNeely. So could a genuine local inability to get judicial review in a reasonable amount of time, a factor noted by Justice Sotomayor’s opinion. (Clearly a Monday morning warrant application for a Friday afternoon arrest is worthless.) Crashes, multiple injuries, custody of minor children, multiple defendants, or high arrest numbers (such as a holiday, festival, or major sporting event) could all be additional factors in creating exigency.
    This puts a burden on every officer to get a blood sample in cases outlined in §724.012 but may require more effort than the State had to make before McNeely came down. As the most conservative approach (and in these most important felony cases, why would we not take a conservative approach?), I recommend getting a search warrant, if possible, in all existing mandatory blood-draw situations. If an officer cannot get a blood search warrant in a reasonable time, then the law enforcement officer should explain why he was unable to get a warrant and proceed to get a blood sample under the Texas statute. That explanation (of why getting a warrant was impossible) is what prosecutors will use in suppression hearings to defend the evidence.
    Prosecutors will also play an important role in how officers respond. Every agency and office should speak with their local prosecutors. I have included policy positions made by Richard Alpert in Tarrant County and Warren Diepraam in Montgomery County (after the endnotes below). They do not totally agree, and that is not entirely surprising. The Supreme Court’s opinion raised as many questions as it did answers, and until the court answers some of these questions, we are all left to make our best educated guesses.
    Prosecutors can also assist by providing protocols on how to show due diligence in obtaining blood search warrants in their own jurisdictions. Let officers know what magistrates to call, how to call, when to call whom, what forms to use, and what procedures to follow. Without the involvement of prosecutors on the front end, officers will not be able to answer the now very important question, “Why did you not get a warrant?” Adopt a written policy outlining the steps an officer must take to obtain a warrant. Include instructions for weekdays, nights, and weekends. Go over the exigency factors as they apply to your jurisdiction.
    Be prepared for a flood of appeals and writs. I will follow up with comments on how to address those. For the time being, polish up briefs on procedural default. As Bob Schneider sings, “It is not the end of everything, just the end of everything you know.” This too shall pass.
    Finally, there is a tendency to panic when the Supreme Court seemingly changes our world with a pen stroke. Don’t. Texas is in a very advantageous position because blood search warrants are not new to us. Our implied consent and mandatory blood draw laws have not been ruled unconstitutional and, based on the dissent and concurrences, may not be. This new opinion may be the push we need to make Texas no-refusal all the time. That would be a good thing.


1 No. 11-1425 (issued April 17, 2013).
2 459 U.S. 553 (1983).
3 384 U.S. 757 (1966).

Richard Alpert, ­misdemeanor chief in Tarrant County:
“Instruct your officers to obtain a search warrant in all mandatory blood-draw scenarios (those arrested for intoxication manslaughter, intoxication assault, felony DWI, DWI with a child, DWI with bodily injury and transport, and DWI with a prior conviction for intoxication manslaughter, intoxication assault, or DWI with a child). While it is tempting to continue to rely on our mandatory provisions that might not even be in jeopardy, we believe that it is our primary duty to protect these more serious cases from protracted litigation and outcome uncertainty that would follow from our ignoring this case’s potential impact. Using a search warrant in these cases will thwart any additional litigation that might arise post-McNeely.”

Warren Diepraam, ­special prosecutions chief in Montgomery County:
“I have asked Montgomery County prosecutors and officers to be aware of exigency factors when doing mandatory blood draws and to make sure the officers document their reports. I have set out three guidelines:  First, in all mandatory blood draw cases where the officer can’t articulate an exigency, I am asking them to get a warrant.  Second, during No-Refusal (when a judge is obviously available), I am asking law enforcement to get warrants in all DWI refusals.  Third, in intoxication manslaughter and intoxication assault cases, officers get a mandatory sample before we arrive (generally) and I am having them continue that practice but am getting a warrant an hour after the mandatory draw.”