A couple years ago, a Missouri man named Tyler McNeely was pulled over for speeding. According to the cop that pulled him over Cpl. Mark Winder, he appeared drunk and unsteady, so he asked that McNeely submit to a breath test. When McNeely refused, Winder took him to a hospital and ordered a blood test. McNeely refused the blood test, but Winder had the lab technician take his blood anyway to test his blood alcohol level. It turned out that McNeely had a blood alcohol level over the limit, after which he was arrested.
McNeely’s attorney persuaded the judge to throw out the blood test as evidence since there was no consent from the driver to be searched, and there was no warrant obtained by the cop. But the Missouri legislature had just changed a law that year regarding sobriety tests that allowed police to give anyone a breath or blood test with or without consent of the driver. In fact, based on the new language in the law, driving on Missouri roads itself is now an implied consent to be sobriety tested. If you choose to drive in a car, then you are giving your consent to be tested upon request by a cop. The language also states that refusing a sobriety test will be used as evidence against you.
Winder said in response that he was simply going by this new law change that didn’t require any further consent on McNeely’s part, and that since he was driving in Missouri, that’s all the cop needed to test him.
Further, Missouri prosecutors appealed to a 1966 U.S. Supreme Court decision in California. In Schmerber v. California, a Mr. Schmerber was in a car accident, and when he was transported to the hospital for medical treatment, his blood was also tested for alcohol level. No warrant was obtained, and because of the man’s condition, no consent was granted either. The court upheld that the police had a right to get the man’s blood tested without warrant or consent because of the “exigency” of the situation. The police officer was in effect investigating the accident scene, and obtaining a warrant to test the man’s blood would have taken too long. By the time the warrant was obtained, Mr. Schmerber’s body would have already metabolized the alcohol in his bloodstream.
For the past 50 years, prosecutors have appealed to this case as justification for police to test any driver’s blood for alcohol levels with or without consent or warrant. They argue that the test needs to be done in an “exigent” manner so that they get the most current reading before the blood is metabolized any further.
Now, the U.S. Federal Government has sided with Missouri prosecutors, writing “the fact that the evidence of intoxication is necessarily leaving the suspect’s system provides the required exigency.”