The United States Supreme Court has agreed to hear the case of Missouri v. McNeely to examine the issue of whether a police officer may obtain a blood sample without a DWI warrant and without consent from the accused. Of course, drivers are well within their rights to refuse blood, breath or urine testing, though it will often lead to an additional charge against them.

While some states have statutes that permit warrant-less blood draws, the majority, including New Hampshire, do not. Under New Hampshire law, the police are typically required to obtain a warrant before obtaining evidence, except in certain limited circumstances.

Nonetheless, this U.S. Supreme Court case may eventually have implications for all those facing a DWI conviction in NH. The law changes frequently, giving our state lawmakers the opportunity to make revisions in the future. As always, if you are facing a DWI and have questions about your case that involve blood tests and DWI warrants, be sure to get in touch with an experienced attorney as soon as possible.

The Case: Missouri v. McNeely

In 2010, Tyler McNeely was stopped for speeding near Cape Girardeau, Missouri. The officer reported that McNeely failed the field sobriety test and then refused to provide either a breath or blood sample for the officer to determine his blood alcohol content. The officer then took McNeely to a hospital, where he ordered a forcible blood draw. The DUI blood test indicated that McNeely's blood alcohol content was above the legal limit, and he was arrested for driving under the influence.

At trial, McNeely argued that it was a wrongful DWI arrest because he did not consent to the blood draw and he did not obtain a warrant. The state countered, arguing that the officer could not wait for a warrant. The exigent circumstance of McNeely's body processing the alcohol in his blood, and therefore lowering the measurable level in his body, required the blood draw to occur as soon as possible. In a previous opinion, the Supreme Court stated that police could obtain evidence, in certain limited circumstances, where the evidence would be destroyed if they waited to obtain a warrant. Essentially, the state was arguing that waiting would destroy evidence of McNeely's DWI.

The trial court agreed with McNeely's argument and suppressed the blood evidence. The state then appealed all the way to the Missouri Supreme Court, who also found that the officer could not obtain the blood draw without consent or a warrant, and that the metabolization of alcohol in the blood does not constitute exigent circumstances. The state then appealed the case to the U.S. Supreme Court.

Some have compared warrant-less blood draws to forcibly pumping a suspect's stomach to look for evidence, a practice which the Supreme Court has ruled unconstitutional. Others, however, view the practice as a necessity for the police to obtain evidence against drunk drivers and ensure that they cannot harm other motorists.

While it may be easy to assume how the Supreme Court will rule in some cases, it is not as easy in this case. It is unlikely that a decision will be along liberal or conservative lines. This is particularly true because the Supreme Court justices will have to look at such competing interests as the state's need for evidence and the desire to protect the public from drunk drivers versus a person's right to bodily integrity, a person's right to be free from unreasonable search and seizure, and one's right to avoid self-incrimination.