What is the status of Ohio’s forced blood draw law [R.C. 4511.191] following the decision in Missouri v. McNeeley, 2013 U.S. LEXIS 3160 (2013).
In Missouri v, McNeely, the United States Supreme Court ruled that a nonconsensual warrantless forced blood draw violates a person’s right to be free from unreasonable searches and seizures under the 4th Amendment to the Constitution. The McNeely decision raises some questions for search warrants in OVI cases. Some of the questions include (1) Did this decision invalidate the implied consent laws? and (2) Are search warrants required for every DUI arrest before a forced blood draw can be taken from a person suspected of drunk driving? First, let’s review the facts giving rise to the decision.
Facts of the Case. On October 3, 2010, at 2:08 a.m., a Missouri State Trooper stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and cross the centerline three times. Upon making contact with the McNeely, the trooper observed McNeely to have bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. McNeely admitted to consuming “a couple of beers” at a bar. Based upon these observations, the trooper asked McNeely to step out of the vehicle and immediately noticed McNeely to be unsteady on his feet. McNeely performed poorly on the field sobriety tests and declined to submit to a preliminary breath test. Based upon the trooper’s observations, the trooper placed McNeely under arrest for driving under the influence of alcohol. While en route to the jail, the Trooper asked McNeely if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely stated he would refuse to provide a breath sample. Based upon this statement, instead of taking McNeely to the jail, the trooper took McNeely to a nearby hospital to obtain a blood sample to secure evidence of intoxication. McNeely refused to voluntarily provide a blood sample. Consequently, the trooper directed a hospital lab technician to draw a blood sample. Although the trooper had obtained search warrants in previous drunk-driving cases, in this instance, the trooper did not seek a search warrant based upon a training session he attended where it was stated that a search warrant was no longer necessary due to a recent change to the “refusal” provision of the Missouri implied consent law. Blood was taken from McNeely without a warrant. The trial court granted McNeely’s motion to suppress the blood evidence, holding that the warrantless blood draw violated his Fourth Amendment right. The trial court held that the natural dissipation of alcohol in the bloodstream does not constitute a sufficient exigency to justify a warrantless blood draw in a routine DUI case.
Issues for Consideration. The U.S. Supreme Court was tasked with determining whether the trial court, holding that the dissipation of alcohol in a routine DUI case does not create a per se exigency was consistent with its prior decision in Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the Supreme Court affirmed the drawing of blood without a warrant or consent. Since 1966, the enforcement of drunk driving laws has increased and many states adopted “no refusal” laws giving police the right to force blood from a defendant. See Ohio Revised Code 4511.191.
Decision and Ruling. The court notes that because the invasion beneath the skin in a forced blood draw is of greater significance than searching a person’s pockets, the search incident rationale does not carry the whole day – a warrant is required. The Court pointed out that the diminishing of BAC upon the cessation of drinking is only one factor that must be considered in determining whether a warrant is required. The Court further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. The Court did not address the factors to be taken into account in determining the reasonableness of acting without a warrant. These factors will be developed by subsequent decisions on this issue. The Court made a point to highlight that all 50 states have adopted implied consent laws. While the Court concluded that a reasonable expectation of privacy against involuntary blood draws exists, granting individual’s nonconsensual (forced) blood draws protection under the Fourth Amendment, it did not invalidate the existing implied consent laws. Consequently, the ruling requires that if a person revokes their “implied” consent, a warrant must be obtained.
How Does The Ruling Affect Ohio? Ohio adopted a “no refusal” forced blood draw statue at R.C. 4511.191, which states, “if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” [emphasis added]. Obviously, the McNeeley decision places this law in jeopardy. When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving inves- tigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The decision of the court used the previous rules for exigent circumstances as set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling. Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.
OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and protecting you. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI defense.”
Ohio forced blood draw information and other city-specific info at the following links: