Law Review Note: Analyzing Dissipation of Alcohol as an Exigent Circumstance in State v. Mcneely

1

PER SE OR NOT PER SE THAT IS THE QUESTION: PROVIDING A

COMPREHENSIVE INTERPRETATION OF SCHMERBER V. CALIFORNIA

THROUGH RECENT STATE COURT OPINIONS

Written by Brandon Mika

JD/MBA Student

Thomas Jefferson School of Law/San Diego State University

Spring, 2012

ABSTRACT

The purpose of this Note is to explore whether officers should be allowed to administer a blood

test to a DUI suspect without a warrant due to the dissipation of alcohol from the blood stream.

This Note will inform the reader of the Constitutional implications involved. Additionally, it

will examine the history of the issue and compare two recent state cases finding in opposition to

one another and determine which decision best balances society‟s interest in preventing drinking

and driving and the individual‟s right to constitutional protections. Finally, this Note will

propose a solution for states to follow.

A blood test has been classified as a search and therefore a warrant is required under the Fourth

Amendment. One exception to the warrant requirement occurs when exigent circumstances are

present.

Schmerber v. California found that dissipation of alcohol from the blood stream created an

exigent circumstance that could potentially excuse officers from having to obtain a warrant.

However, the language was unclear as to whether dissipation is a per se exigent circumstance or

whether other circumstances created the exigency.

In light of technological and legislative advancements, state should employ a totality of the

circumstances test before permitting a warrantless blood withdrawal. Electronic warrants can be

obtained in minutes. Additionally, retrograde extrapolation provides a method to calculate an

individual‟s BAC at the time of arrest when they test just under the legal limit and time was

spent procuring a warrant. Finally, implied consent statutes provide for administrative

punishments if a warrant cannot be acquired and an individual refuses a chemical test.

Therefore, a warrantless blood draw should only be used as a last resort for repeat offenders or

suspects whose licenses have already been suspended through implied consent laws in order to

provide justice when a warrant cannot reasonably be obtained.

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INTRODUCTION

Drinking and driving is an epidemic that plagues our society. One in every three people

will be involved in an alcohol related accident before they die.1 In 2005, 39% of all traffic

fatalities were attributed to alcohol.2 With alarming statistics such as these, it is no mystery why

many states afford police officers significant leeway in gathering evidence in drinking and

driving cases.3 The primary way for a state to obtain evidence is through chemical testing of the

breath, blood or urine of a suspect in order to determine his or her blood alcohol content (BAC).4

However, for nearly half a century, courts have struggled with the application of Fourth

Amendment protections in driving under the influence (DUI) cases as to whether a warrantless

blood draw is constitutional after an individual has been arrested based on clear probable cause,

due to the evanescent nature of alcohol in the blood stream.5

In attempting to find the proper balance of an individual‟s constitutional protections and

society‟s interest in preventing drinking and driving, police officers should only be permitted to

conduct a warrantless chemical test subsequent to an arrest when under a totality of the

circumstances, it would be impossible to obtain a warrant in a timely fashion.6 Although alcohol

dissipates at a rapid rate, advancements in technology and legislation since the landmark case of

1 NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, http://www.nhtsa.gov/NCSA (last visited Apr. 28,

2012). 2 Traffic Safety Facts 2005 Data, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, 1(2005),

http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Human%20Factors/Reducing%20Unsafe%20behavior

s/810616.pdf. 3 See, e.g. State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227 P.3d 729 (Or. 2010); State v.

Shriner, 751 N.W.2d 538 (Minn. 2008). 4 Debra T. Landis, Request Before Submitting to Chemical Sobriety Test to Communicate with Counsel as a Refusal

to Take Test, 97 A.L.R.3d 852 n.2 (1980) (defining a chemical test as an analysis of the breath, blood, or urine to

determine the amount of alcohol in the person‟s body). 5 Compare Schmerber v. California, 384 U.S. 757 (1966) (deciding as a matter of first impression in 1966 whether

the dissipation of alcohol constitutes an exigent circumstance due to its evanescent nature) with State v. McNeely,

358 S.W.3d 65 (Mo. 2012) (determining in 2012 whether the dissipation of alcohol is an exigent circumstance per se

by interpreting Schmerber). 6 State v. McNeely, 358 S.W.3d 65, 67, 74 (Mo. 2012) (stating that the court recognizes society‟s competing

interests and later goes on to hold that a totality of the circumstances test should be employed by police officers

before permitting a warrantless chemical test to determine a suspect‟s BAC).

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Schmerber v. California provide adequate measures of deterrence without significantly

infringing on one‟s constitutional protections, thus making a warrantless blood withdraw an

unnecessary intrusion in many instances.7 In the future, states considering legislation or

reviewing precedent cases should impose a totality of the circumstances checklist for officers to

follow with a warrantless blood draw as the last option.

Courts have determined that subjecting a person to chemical testing constitutes a search

of the person‟s body.8 Thus, chemical testing has been afforded the same constitutional

protections as any other search.9

Under the Fourth Amendment of the United States Constitution, a police officer must

first obtain a search warrant before conducting a search, unless an exception to the warrant

requirement applies.10

One exception permitting an officer to perform a warrantless search exists

when there are exigent circumstances present.11

Exigent circumstances include instances such as

when lives are being threatened or evidence is about to be destroyed.12

Studies show that alcohol

dissipates at a rapid rate in relation to many other substances that are commonly tested for, such

as narcotics.13

As a result, courts have the arduous task of determining whether the dissipation of

alcohol is, per se, an exigent circumstance due to the potential destruction of evidence, or

7 See infra Part II.B.

8 Schmerber, 384 U.S. at 767 (“[Chemical testing] plainly involves the broadly conceived reach of a search and

seizure under the Fourth Amendment.”). 9 Id.

10 U.S. CONST. amend. IV.

11 Id.

12 Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (holding that exigent circumstances justified a warrantless search

to prevent the destruction of evidence so long as the officers did not create the exigent circumstance). 13

OHS HEALTH AND SAFETY SERVICES, INC., http://www.ohsinc.com/what_every_parent_should_know_part2.htm

(last visited Mar. 17, 2012) [hereinafter OHS].

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whether police officers should employ a totality of the circumstances test in each situation to

determine if the time spent to procure a warrant would lead to the destruction of evidence.14

The issue of alcohol dissipation as an exigent circumstance was first examined in the

landmark case of Schmerber v. California.15

Although that court found that the dissipation of

alcohol constituted an exigent circumstance, states have not been able to decipher from the

language of the opinion whether the court intended for dissipation to be an exigent circumstance

in every situation, or whether the evanescent nature of alcohol in addition to other factors created

the exigent circumstance.16

Part I of this Note provides a brief understanding of the Fourth Amendment and exigent

circumstances, as well as the science behind alcohol dissipation. Part I also provides the

background for the debate by examining the United States Supreme Court precedent decisions

and their current application by the states, which is illustrated by State v. McNeely and State v.

Bohling, two recent state supreme court decisions that interpret the precedent in opposition to

one another. Part II analyzes each state court‟s opinion in order to determine which approach

provides the proper balance of society‟s interest in preventing drinking and driving and the right

of the people to be free from illegal searches and seizures. Finally, part III proposes that states

only use a warrantless blood withdrawal when circumstances make it impossible to obtain a

14

If the dissipation of alcohol from the blood stream is determined to be an exigent circumstance per se, then the

evanescent nature of alcohol alone is sufficient to bypass the warrant requirement. However, if a totality of the

circumstance test is employed, then the police officer must objectively determine whether circumstances make it

impossible to obtain a warrant prior to the destruction of evidence. See State v. McNeely, 358 S.W.3d 65, 70 (Mo.

2012). 15

Schmerber v. California, 384 U.S. 757 (1966). 16

See McNeely, 358 S.W.3d at 74; see also State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (“Schmerber can be

read in either of two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient

exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk

driving related violation or crime-as opposed to taking a blood sample for other reasons, such as to determine blood

type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and

the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw.”).

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warrant in a timely fashion and the accused is either driving on a suspended license or a second

or third strike offender.

I. SCIENTIFIC BACKGROUND AND PRECEDENT DECISIONS IMPACTING

WARRANTLESS BLOOD WITHDRAWALS

Since the introduction of chemical testing, courts have had to examine what

constitutional protections people ought to receive for chemical tests in drinking and driving

cases.17

Today, courts continue to examine this issue throughout the country.18

A. The Science Behind Alcohol Dissipation

In order to fully understand some of the courts‟ reasoning regarding alcohol dissipation

as an exigent circumstance, it is first important to understand the science behind alcohol

dissipation. The first breathalyzer test was invented by Dr. Rolla N. Harger in 1931 by having

people blow into a balloon.19

His concept revolutionized chemical testing.20

Since that time,

alcohol determinations have become one of the most commonly performed forensic

procedures.21

Once alcohol is consumed, it is absorbed in the blood and travels throughout the

body.22

Because it appears in every bodily fluid, all types of chemical tests are able to discover

the presence and level of alcohol in the blood stream.23

Currently, the most effective and

accurate chemical test is the blood sample.24

Alcohol is estimated to be completely absorbed

approximately thirty to ninety minutes after the last beverage was consumed.25

However, the

17

Breithaupt v. Abram, 352 U.S. 432, 434 (1957) (deciding as a matter of first impression the constitutional

protections that should be afforded to chemical testing). 18

See, e.g., McNeely, 358 S.W.3d at 70. 19

Rolla N. Harger Dies; Invented Drunkometer, N.Y. TIMES, Aug. 10, 1983, available at

http://www.nytimes.com/1983/08/10/obituaries/rolla-n-harger-dies-invented-drunkometer.html. 20

See id. 21

EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING CASES § 12:1 (2011) 22

Jennifer L. Pariser, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64

N.Y.L. SCH. L. REV. 141, 145-46 (1989). 23

Id. at 149. 24

Id. 25

John E. Wherry Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 AM. J. TRIAL ADVOC.

503, 516 (1996).

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absorption rate may be influenced by numerous factors including food consumption, the speed at

which the alcohol is consumed, and the alcohol content of the drink.26

Once the alcohol is

completely absorbed, it will begin to dissipate at a rate of approximately .015% per hour until it

has completely exited the blood stream.27

Alcohol has a faster dissipation rate than many other

banned substances.28

Alcohol will generally be out of the blood stream in a matter of hours,

whereas the dissipation rate for drugs such as cocaine is considerably longer.29

Because of the

evanescent nature of alcohol, law enforcement officials have found it necessary to obtain the

evidence as quickly as possible, even if it means doing so without a search warrant.30

B. The Fourth Amendment and Exigent Circumstance Exception

The Fourth Amendment of the United States Constitution protects:

[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.31

As indicated by the language of the amendment, there generally must be a valid search warrant

to conduct a search, except in some special situations.32

The exigent circumstances exception to

the warrant requirement permits a warrantless search when lives are threatened, a suspect‟s

escape is imminent, or evidence is about to be destroyed.33

Once it was established that chemical

26

Id. at 516. 27

State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that .015% per hour is the

approximate dissipation rate); Wherry, supra note 25, at 516. 28

OHS, supra note 13. 29

State v. Jones, 895 P.2d 643, 644 (Nev. 1995) (“Further, the dissipation rate for cocaine and its metabolites

appears significantly slower than the dissipation rate for alcohol.”); OHS, supra note 13 (providing that the

dissipation rate of cocaine is approximately 1-2 days). 30

See, e.g., Schmerber v. California, 384 U.S. 757, 770-71 (1966) (determining whether the officer was justified in a

warrantless blood draw due to the evanescent nature of alcohol). 31

U.S. CONST. amend. IV. 32

United States v. Lovenguth, 514 F.2d 96, 99 (9th Cir. 1975) (finding that a warrantless search of the defendant‟s

truck was justified based on probable cause). 33

United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996).

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testing was protected as a search under the Fourth Amendment, courts were faced with the task

of determining whether the dissipation itself constituted an exigent circumstance.

C. Breithaupt v. Abram

The United States Supreme Court first looked at the admissibility of blood tests and the

protections that suspects ought to receive in DUI cases in Breithaupt v. Abram.34

There, the

defendant was seriously injured when he collided with another car, killing three people.35

At the

scene, officers discovered a whiskey bottle in the defendant‟s glove compartment.36

The officers

then withdrew a blood sample from the defendant without his consent while he was unconscious

in the hospital.37

The New Mexico state court used the evidence to charge and convict the

defendant of involuntary manslaughter.38

The defendant filed a petition for a writ of habeas

corpus with the Supreme Court of New Mexico, claiming the nonconsensual blood test amounted

to an illegal search and seizure among other various constitutional violations.39

The Supreme

Court of New Mexico denied the writ, but the United States Supreme Court granted certiorari.40

The Supreme Court ultimately rejected the defendant‟s contention, determining that the blood

test was admissible to show his level of intoxication without offending his constitutional rights.41

The court based its ruling on New Mexico law, which did not follow the exclusionary rule.42

As

34

Breithaupt v. Abram, 352 U.S. 432 (1957). 35

Id. at 433. 36

Id. 37

Id. 38

Id. 39

Id. at 433-34. 40

Id. at 433. 41

Id. at 434. 42

The exclusionary rule provides that evidence secured in violation of one‟s constitutional rights should be excluded

as evidence. Id. at 434. New Mexico declined to follow the exclusionary rule based on Wolf v. People of the State

of Colorado, 338 U.S. 25 (1949), which held that it was unnecessary to exclude evidence in the prosecution of state

crimes when the evidence was taken in violation of one‟s Fourth Amendment rights. Id. The holding in Wolf was

overturned prior to Schmerber. Schmerber v. California, 384 U.S. 757, 767 (1966).

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a result, the court failed to recognize the defendant‟s constitutional contentions.43

Although

unsuccessful, his claim paved the way for Schmerber v. California.

D. Schmerber v. California

The heart of this debate centers around the landmark case of Schmerber v. California.44

The defendant, Armando Schmerber, was taken to the hospital after being involved in a traffic

accident.45

After officers had an opportunity to investigate the scene, the defendant was arrested

while being treated for his injuries.46

The officers asked the defendant to consent to have his

blood drawn by a physician.47

Despite the defendant‟s refusal, the blood was withdrawn.48

The

results indicated that the defendant was intoxicated.49

The blood test was admitted into evidence

and Schmerber was convicted of DUI.50

The defendant appealed the ruling, contending that his

constitutional rights were violated, including the right to be free from illegal searches and

seizures.51

In determining whether the defendant‟s constitutional rights had in fact been violated, the

court found that the case “plainly involves the broadly conceived reach of a search and seizure

under the Fourth Amendment.”52

The court established that blood tests should be afforded the

same constitutional protections as any other search.53

The court then examined whether the

warrantless search violated the defendant‟s constitutional rights. Although the defendant‟s

appearance and odor clearly established probable cause for an arrest, as well as the need to

43

Breithaupt, 352 U.S. at 434. 44

Schmerber v. California, 384 U.S. 757 (1966). 45

Id. at 758. 46

Id. 47

Id. 48

Id. at 759. 49

Id. 50

Id. 51

Id. 52

Id. at 767. 53

Id.

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conduct a chemical test according to the court, the question remained whether the officer was

justified under the exigent circumstance exception to the Fourth Amendment in determining the

need for chemical testing without first procuring a warrant.54

In deciding whether the dissipation

of alcohol amounted to an exigent circumstance under the destruction of evidence, the court

stated:

The officer in the present case, however, might reasonably have believed that he

was confronted with an emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened „the destruction of evidence‟

(citation omitted). We are told that the percentage of alcohol in the blood begins

to diminish shortly after drinking stops, as the body functions to eliminate it from

the system. Particularly in a case such as this, where time had to be taken to bring

the accused to a hospital and to investigate the scene of the accident, there was no

time to seek out a magistrate and secure a warrant. Given these special facts, we

conclude that the attempt to secure evidence of blood-alcohol content in this case

was an appropriate incident to petitioner's arrest.55

States are split about the reasoning of Schmerber.56

The two common interpretations are that the

court either intended for dissipation to be a per se exigent circumstance, or that the special facts

present in that particular situation created the exigency, thereby establishing a totality of the

circumstances approach.57

The following state supreme court cases provide examples of the two

common interpretations of Schmerber.

E. State v. Bohling (Dissipation as a Per Se Exigent Circumstance)

State v. Bohling provides an example of a jurisdiction that has adopted a per se approach

to the dissipation of alcohol as an exigent circumstance.58

There, a police officer was dispatched

54

Id. at 770. 55

Id. at 770-71. 56

Compare State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Rodriguez, 156 P.3d 771 (Utah 2007); State v.

Johnson, 744 N.W.2d 340 (Iowa 2008), with State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227

P.3d 729 (Or. 2010); State v. Shriner, 751 N.W.2d 538 (Minn. 2008). 57

Compare State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (interpreting Schmerber to apply a per se exigency

factor for dissipation), with State v. McNeely, 358 S.W.3d 65, 70 (Mo. 2012) (interpreting Schmerber to mean that

dissipation must be viewed in light of all of the circumstances involved). 58

Bohling, 494 N.W.2d at 399.

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to investigate an accident.59

Upon arriving at the scene, he discovered the defendant, David

Bohling, who portrayed all the signs of intoxication, including bloodshot eyes and the odor of

alcohol on his breath.60

The officer arrested the defendant and brought him to the station where

he refused to take a breathalyzer test.61

The officer informed him that he would have to draw his

blood in accordance with Wisconsin laws and force would be used if he refused.62

Bohling was

then transported to the local hospital and given a blood test without a warrant, despite his refusal

to sign the consent form.63

In reaching its holding, the court attempted to analyze Schmerber.64

The court explicitly

recognized that Schmerber can be read one of two ways: either that the rapid dissipation alone is

a sufficient exigent circumstance, or that the rapid dissipation in addition to some other lapse in

time, such as other delays from events like the accident or hospitalization of the suspect, creates

the exigent circumstance.65

The court determined that the first interpretation is more reasonable, thereby establishing

a per se approach to dissipation as an exigent circumstance.66

They reasoned that the special

facts present in Schmerber occur regularly in DUI cases so the exigency was caused by the

dissipation itself and not any unique circumstances.67

Additionally, the court reasoned that other

state and federal decisions follow this approach.68

Multiple state courts have already adopted a

per se approach, and Skinner v. Railway Labor Executives’ Association has recognized that a

59

Id. at 400. 60

Id. 61

Id. 62

Id. Wisconsin permits the use of reasonable force to obtain a blood sample. See State v. Krause, 484 N.W.2d

347, 351 (Wis. Ct. App. 1992). 63

Bohling, 494 N.W.2d at 400. 64

Id. at 399-400. 65

Id. at 402. 66

Id. 67

Id. (stating that the circumstances present in Schmerber delaying the officers from withdrawing the defendant‟s

blood are common in most every DUI case so the court in Schmerber was not reasoning that the circumstances

created the exigent circumstance, but instead that the dissipation of alcohol alone created it). 68

Id.

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warrant requirement is relaxed when the activity poses a serious public risk.69

Finally, the court

determined that a per se rule strikes the proper balance between an individual‟s right to be free

from illegal searches and Wisconsin‟s enforcement of its drunk driving laws.70

F. State v. McNeely (Totality of the Circumstances Test)

State v. McNeely provides a recent example of a jurisdiction voicing their dissatisfaction

with a per se approach and instead adopting a totality of the circumstances test in order to

determine whether a warrantless blood draw is justified.71

The defendant, Tyler McNeely, was

stopped by a highway patrolman as a routine traffic stop for speeding.72

The officer placed

McNeely under arrest for displaying signs of intoxication, such as slurred speech and the smell

of alcohol on his breath.73

After the defendant refused a breathalyzer test, the officer drove him

to the local hospital to obtain a blood sample.74

The defendant refused to consent to the blood

draw, but it was taken nonetheless.75

The issue before the court was whether the dissipation of

the alcohol alone is an exigent circumstance.76

Once again, the court attempted to interpret

Schmerber. In reaching a decision, the court relied on other jurisdictions‟ prior interpretations,

as well as their own insight.77

The presiding justices actually voiced their disagreement with

Bohling in the opinion:

[Bohling] reasoned that the exigency in Schmerber was caused “solely” by the

fact that alcohol dissipates in a person's blood stream over time. Bohling held that

a warrantless blood draw is permitted when a person is lawfully arrested for a

drunken-driving related crime and there is a clear indication that the evidence

69

Id. at 403-05. 70

Id. at 405. 71

State v. McNeely, 358 S.W.3d 65 (Mo. 2012). 72

Id. at 67. 73

Id. at 68. 74

Id. 75

Id. 76

Id. 77

Id.at 70-75.

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obtained will produce evidence of intoxication…This court cannot agree with

th[is] interpretation of Schmerber.78

As a result, McNeely determined that the court must adopt a totality of the circumstances test, in

which the officer must objectively determine whether special circumstances exist where the

evidence has a significant risk of being destroyed.79

The questions still remains as to which

approach strikes the proper balance between society‟s interest in preventing drinking and driving

and an individual‟s right to be free from illegal searches.

II. INTERPRETING SCHMERBER FORTY-SIX YEARS AFTER THE INITIAL

DECISION

Forty-six years after the decision in Schmerber, cases such as Bohling and McNeely

highlight the difficulty states are still having in interpreting the court‟s reasoning.80

The vague

analysis of Schmerber makes it difficult to decipher whether the court intended for the special

circumstances surrounding the incident to create an exigent circumstance, or whether the

circumstances described in the case are common in most every DUI case so that the evanescent

nature of alcohol creates an exigent circumstance per se.81

Because the Supreme Court has not

reexamined the issue in the forty-six years since the initial decision, it has been left to the states

to make a determination. In light of legislative and technological changes since Schmerber, a

totality of the circumstances test, similar to the one adopted in McNeely, will provide the best

balance of societal interests and individuals‟ constitutional rights in contemporary society.

A. Balancing Society’s Interest in Preventing Drinking and Driving with an Individual’s

Constitutional Protections

Before reaching a decision, courts will often consider policy implications. In DUI cases

dealing with chemical testing, the state has a strong interest in enforcing its DUI laws to protect

78

Id. at 73-74. 79

Id. at 74. 80

See, e.g., McNeely, 358 S.W.3d at 65; State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 81

Schmerber v. California, 384 U.S. 757, 770-71 (1966).

13

its citizens.82

On the other hand, an individual also has the right to be free from illegal searches

and seizures.83

Finding the proper balance is a difficult task for any judge.84

Additionally, as

times change, the balancing of these factors might change.85

Since the 1966 decision in

Schmerber, changes in legislation and technology have provided states with the ability to

properly enforce their DUI laws without infringing on one‟s constitutional protections through a

warrantless search, thereby furthering a totality of the circumstances approach.

B. Advancements Since Schmerber Affecting the Balance of Societal and Individual Interests

Since Schmerber was decided in 1966, states have employed various strategies to prevent

drunk driving.86

The following are a few of the changes since Schmerber that when used

together prevent the need for a per se rule for dissipation as an exigent circumstance.

1. Technological Advancements

Advances in technology, such as the telephonic or electronic warrant, provide police

officers with the ability to avoid the possible destruction of evidence through more efficient

measures. Telephonic warrants were first adopted by the Federal Rules of Criminal Procedure in

1977.87

Over the past thirty-five years, almost every jurisdiction has adopted some form of the

telephonic warrant so that they may be provided expeditiously for cases such as these when time

is of the essence.88

So long as the Fourth Amendment requirements are met, the warrant will be

82

Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at 67. 83

Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at 67. 84

See, e.g., Bohling, 494 N.W.2d at 405(illustrating the varying interests that a judge must consider in reaching a

decision); McNeely, 358 S.W.3d at 67. 85

The introduction of the electronic warrant and other advances post Schmerber have lessened the necessity of

protecting the public with a per se approach. 86

Since Schmerber was decided, electronic warrants, retrograde extrapolation, and implied consent laws have

become commonly used to prevent drinking and driving. 87

Wherry, supra note 25, at 520. 88

See WIS. STAT. ANN. § 968.12 (West 2011); MO. REV. STAT. § 542.276 (2011); UTAH CODE ANN. § 77-7-10

(West 2011).

14

issued electronically.89

Twenty-five years ago, courts determined that ninety minutes was a

sufficient amount of time for a telephonic warrant to be issued.90

However, technological

advancements have continued to make the process more efficient. For example, in 1998, an

Arizona court determined from testimony by the Mesa police station that an electronic warrant

could be obtained in as little as fifteen minutes, with the average time not exceeding one hour.91

Today, counties are beginning to issue electronic warrants or “e-warrants” through the

use of smart phones or tablet devices.92

In Douglas County, Kansas, all five county judges read

and sign warrants on iPads.93

They can submit the warrant in less than an hour, which even

includes their signature and is thus no different than a paper warrant.94

The use of iPads for

issuing electronic search warrants in Douglas County was specifically utilized for DUI cases.95

With the dissipation rate of alcohol being estimated to be .015% BAC per hour, the chance of

someone exceeding .08% BAC at the time of the arrest and falling under the legal limit in less

than an hour is rare.96

2. Retrograde Extrapolation

Even if someone tests just under the legal limit a short time after being formally

arrested, there is still a method of determining the suspect‟s BAC at the time of arrest.

Retrograde extrapolation is a mathematical process used to calculate one‟s BAC at the time the

89

State v. Rodriguez, 156 P.3d 771, 778 (Utah 2007) (“The warrant must be „upon probable cause, supported by

oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”‟). 90

Wherry, supra note 25, at 523 (citing United States v. Alvarez, 810 F.2d 879, 883 (9th Cir. 1987). 91

State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 92

Bill Robinson, Electronic Warrants Speed Law Enforcement, THE RICHMOND REGISTER (Dec. 1, 2011),

http://richmondregister.com/localnews/x1331365215/Electronic-warrants-speed-law-enforcement. 93

George Diepenbrock, With iPads, Judges in Touch any Time, any Place, LJWORLD.COM (February 5, 2012, 11:17

PM) http://www2.ljworld.com/news/2012/feb/05/ipads-judges-touch-any-time-any-place/. 94

Id.; To view a sample electronic affidavit and search warrant, see No-Refusal Sample, NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION,

http://www.nhtsa.gov/staticfiles/planners/NoRefusalWeekend/docs/samplewarrant.pdf (last visited April 29, 2012). 95

Diepenbrock, supra note 93. 96

State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that this is the approximate

dissipation rate); Wherry, supra note 25, at 516.

15

suspect was operating a motor vehicle by using the information obtained from the chemical test

and relating it back to the time the individual was driving.97

Courts have disagreed whether to

allow the evidence to be used at trial by the prosecution in order to obtain a conviction.98

It is

imperative to have an expert familiar with the process provide the testimony in order for a court

to find it admissible.99

Any expert hired to testify should also have knowledge of individual

characteristics of the defendant that would impact the calculation, such as the defendant‟s age,

weight, food consumption, and the time lapse between drinking and driving, or any other factor

that could influence the absorption rate.100

Because of the many factors that can affect retrograde extrapolation, it should be used

sparingly as evidence used to obtain a conviction.101

However, so long as the courts enforce that

any expert called to testify have considerable knowledge of the facts of the case, especially the

time lapse between drinking and driving and the defendant‟s personal characteristics, retrograde

extrapolation can be used effectively.

This Note proposes that retrograde extrapolation only be used for short term calculations

when suspects test just under the legal limit and the necessary details are known to the expert, in

order to determine if the time spent getting a warrant impacted their BAC. Critics argue that

retrograde extrapolation is not a precise calculation due to all of the influential factors and

therefore, should not be used as admissible evidence.102

However, courts have determined that

97

Jim Fraiser, Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions, 119 A.L.R.5th 379

(2004). 98

Id. 99

Id. 100

Id. 101

Id. 102

Critics of retrograde extrapolation argue that it is difficult to calculate an individual‟s BAC back to a previous

point in time because so many factors influence the absorption rate of alcohol. When an individual consumes a

drink, the alcohol absorbs into the blood stream. As the alcohol absorbs, his or her BAC rises until it is completely

absorbed, at which point, he or she reaches a peak BAC. After the peak is reached, the alcohol slowly begins to

dissipate. Critics of retrograde extrapolation argue that it is difficult to determine how long after consuming the last

16

the calculation is based on a scientific method and may be admissible to calculate one‟s BAC for

as long as fifteen hours prior to chemical testing.103

Because it should take no longer than one

hour to obtain an electronic warrant as previously determined,104

one‟s BAC should only

dissipate .015%.105

. The number of cases in which a suspect‟s BAC lowers to a legal level

during the time to get a warrant therefore should be minimal. Nevertheless, retrograde

extrapolation is an available method for courts to consider so that critics of electronic warrants

do not contend that an hour is too long to wait, even if it means protecting an individual from a

warrantless search.

3. Implied Consent Statutes

The last critical change since Schmerber is the widespread use of implied consent laws to

impose civil punishments on individuals who refuse to submit to chemical testing.106

A typical

implied consent statute states that if an individual is using public roads, he or she is impliedly

consenting to a chemical test.107

All or virtually all states have some form of the implied consent

statute in place.108

Even the federal government has an implied consent statute for maritime and

territorial jurisdictions.109

If the individual still refuses to consent to a chemical test after being

properly instructed as to the implied consent statute, the individual will usually be subject to

drink that an individual will reach his or her peak BAC. As a result, the suspect may be at his peak during a

chemical test, resulting in a higher BAC than when he was driving. For more information about the potential pitfalls

of retrograde extrapolation and examples of BAC curves, see EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING

CASES § 10:13 (2011). 103

Smith v. City of Tuscalossa, 601 So.2d 1136, 1138-39 (Ala. Crim. App. 1992) (finding the retrograde

extrapolation testimony admissible for determining the suspect‟s BAC level 15 hours prior to when the chemical

testing occurred). 104

State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 105

State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that .015% per hour is the

approximate dissipation rate). 106

See Murphy v. Director of Revenue, 170 S.W.3d 507, 511 (Mo. Ct. App. 2005) (“Our legislature responded to

Schmerber by its enactment, like many other states, of an “implied consent” statute.”). 107

JAMES BUCHWALTER, ET AL., 8 AM. JUR. 2D AUTOMOBILES § 991 (2012). 108

Anable v. Ford, 653 F.Supp. 22, 35 (W.D. Ark. 1985) (“[M]ost if not all states have enacted statutes which

provide implied consent to such tests by motor vehicle operators.”). 109

U.S.C.A. § 3118 (West 2012).

17

administrative punishments, such as the revocation of his or her license, but he or she will

usually not be forced to submit to a chemical test so that the individual‟s constitutional rights are

not violated.110

Courts reviewing implied consent statutes have held administrative punishments

to be constitutional as a result of Schmerber.111

Implied consent statutes have proven to be an effective form of punishment.112

Because

individuals must be informed of their rights in most jurisdictions prior to submitting to a

chemical test if it is to be admissible, they can make an informed decision whether they wish to

submit to the test or face administrative punishments should they refuse.113

Additionally, the

right to revoke one‟s license or impound his or her car serves as a deterrent without infringing

upon an individual‟s Fourth Amendment rights.114

Implied consent statutes begin to lose their effectiveness however once constitutional

rights become involved. In Oregon, it is illegal to refuse to submit to a chemical test.115

The

simple act of refusing may be used to convict a person of DUI.116

Implied consent statutes

should be viewed as an alternative means of punishment through civil penalties that will deter

drinking and driving without infringing on one‟s Constitutional protections.

110

BUCKWALTER, supra note 107. 111

Murphy v. Director of Revenue, 170 S.W.3d 507, 511 -12 (Mo. Ct. App. 2005). 112

BUCKWALTER, supra note 107. 113

Id. 114

A Guide to Sentencing DWI Offenders, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION AND NATIONAL

INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM , 20 (2005),

http://www.nhtsa.gov/people/injury/alcohol/dwioffenders/A%20Guide2.pdf (providing statistics which show that

administrative punishments, such as impounding or immobilizing the arrestee‟s vehicle, reduces recidivism by 40-

70% and a license revocation for a first time offender lowers alcohol related fatalities by 6-19% ) [hereinafter

Sentencing]. 115

State v. Machuca, 227 P.3d 729, 737 (Or. 2010). 116

OR. REV. STAT. § 813.310 (2012).

18

C. Comparing Bohling’s and McNeely’s Interpretation of Schmerber in Light of the

Foregoing Advancements

Bohling and McNeely are two state supreme court cases decided in the past twenty years,

which highlight the opposing viewpoints of this debate.117

Both cases were decided after the

introduction of the electronic warrant, retrograde extrapolation, and implied consent laws,

making them capable of comparison in determining which approach best serves society.118

Additionally, the opinion in McNeely directly attacks Bohling’s interpretation of Schmerber, and

their adoption of a per se exigency approach to dissipation.119

In attempting to compare these

cases, it becomes evident that the recent advancements have established that a totality of the

circumstances test strikes the best balance of society‟s interest in deterring drinking and driving

and protecting an individual‟s constitutional rights.

The facts of Bohling and McNeely are largely similar, which makes it possible to

compare the courts‟ reasoning.120

The only notable difference is that the defendant in Bohling

was involved in a car accident,121

whereas the defendant in McNeely was pulled over for a traffic

violation.122

However, in reaching its holding, the court in Bohling fails to mention the

emergency circumstance exception outlined in Schmerber that may have permitted a warrantless

blood withdrawal. Instead, the court interprets Schmerber as indicating that dissipation alone is,

117

State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 118

Wherry, supra note 25, at 520 (stating that electronic warrants were first adopted by the Federal Rules of

Criminal Procedure in 1977); State v. Bohling, 494 N.W.2d 399, 403, 405 (Wis. 1993) (discussing the use of

implied consent laws and extrapolation as potential deterrents). 119

McNeely, 358 S.W.3d at 73-74 (stating that the court cannot agree with Bohling’s interpretation that Schmerber

intended for dissipation of alcohol to be a per se exigent circumstance). 120

See McNeely, 358 S.W.3d at 65; Bohling, 494 N.W.2d at 399. 121

Bohling, 494 N.W.2d at 400. 122

McNeely, 358 S.W.3d at 67.

19

per se, an exigent circumstance.123

Therefore, the reasoning provided by the court in both cases

can be easily compared.

In order for an exigent circumstance to be present as an exception to the warrant

requirement, officers must reasonably believe they are confronted with an emergency situation

where obtaining a warrant would threaten the destruction of evidence.124

Whether exigent

circumstances exist must be determined on a case-by-case basis.125

The test to determine

whether exigent circumstances exist is an objective test.126

As a result, an officer must

reasonably determine in each situation the likelihood that evidence will be destroyed. Even if

Schmerber is to be read that the dissipation alone is sufficient to create an emergency

circumstance, it only becomes an exigent circumstance if the officer objectively believes the

evidence will be destroyed before procuring a warrant. However, with the introduction of

electronic warrants, the process will generally take less than an hour.127

Therefore, a warrantless

blood withdrawal should only be completed after considering other options, such as the

electronic warrant. Thus, no matter which way the issue is examined, a totality of the

circumstances test is employed.

The court in Bohling provided four reasons for its decision in determining that dissipation

is a per se exigent circumstance: “(1) a logical reading of Schmerber, (2) the Supreme Court's

123

Bohling, 494 N.W.2d at 402 (“We believe that the more reasonable interpretation of Schmerber is the first one set

forth-exigency based solely on the fact that alcohol rapidly dissipates in the bloodstream.”). 124

Schmerber v. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of

dwellings, and absent an emergency, no less could be required where intrusions into the human body are

concerned.”). 125

United States v. Morrow, 541 F.2d 1229, 1232 (7th Cir. 1976) (finding that the FBI agents‟ actions met the

minimum reasonableness for exigent circumstances, but in the future a search warrant should be obtained whenever

possible). 126

United States v. Elder, 352 F.Supp.2d 880, 884 (C.D. Ill. 2005) (finding that exigent circumstances justified a

warrantless search of the defendant‟s shed, the court stated that the officer acted reasonably entering when the door

was left open); Schmerber, 384 U.S. at 770 (“The requirement that a warrant be obtained is a requirement that

inferences to support the search „be drawn by a neutral and detached magistrate instead of being judged by the

officer engaged in the often competitive enterprise of ferreting out crime.”‟). 127

State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998).

20

decision in Skinner v. Railway Labor Executives' Assn., (citation omitted), (3) interpretations of

Schmerber by other courts, and (4) an examination of Wisconsin's interest in enforcing its drunk

driving laws.”128

However, the court‟s arguments fail to provide any persuasive support for a per

se approach.

First, Bohling’s reading of Schmerber does not justify a per se rule. The court in Bohling

claims that the special circumstances surrounding the situation did not create the exigent

circumstance because a police officer must transport the suspect to the hospital in either case in

order to withdraw the blood.129

However, in Schmerber, the officer did not see the defendant

until two hours after the initial encounter because he had to investigate the scene of the

accident.130

Moreover, in contemporary society, a police officer should be able to secure a

warrant in the time it takes to transport a suspect to the hospital to have a trained medical

professional draw the blood.131

Thus, Bohling’s reading of Schmerber does not provide adequate

support for a per se rule.

Next, Bohling attempts to broaden a narrow holding in Skinner.132

In Skinner, laborers

working on a railroad filed suit to challenge regulations requiring drug tests.133

The court held

that a warrantless drug test is reasonable under the Fourth Amendment because the government

interests served by the regulations outweighed the employees‟ privacy concerns.134

The court

reasoned that the warrant requirement is relaxed when the activity poses a serious public risk.135

Bohling uses Skinner to assert that the constitutional protections provided to drivers should be

128

State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993). 129

Id. 130

Schmerber, 384 U.S. at 770. 131

Flannigan, 978 P.2d at 131 (explaining that it generally takes the Mesa Police department less than an hour to

obtain an electronic warrant). 132

Bohling, 494 N.W.2d at 405 133

Skinner v. Railway Labor Executives‟ Ass‟n,, 489 U.S. 602, 612 (1989). 134

Id. at 633. 135

Id. at 627.

21

relaxed as well.136

However, the status of the individuals makes these cases distinguishable.

Precedent has held that employers have the right to drug test employees without a warrant for

liability purposes when they are conducting work in sensitive positions.137

Nevertheless,

permitting a drug test of the employee without a warrant is distinguishable from permitting a

warrantless drug test of a member of the general public. As a result, the holding of this case

cannot be extended to Bohling.

Bohling also asserts that a per se rule provides the proper balance of policy interests

because there is minimal constitutional intrusion, and a per se rule is necessary to enforce its

drinking and driving laws to protect the public.138

However, the public‟s safety will be just as

protected without lowering individual‟s constitutional rights. In order to enforce drinking and

driving laws, Bohling claims that the probative value of BAC evidence is diminished by delayed

testing, making a per se rule vital.139

However, as previously determined, a warrant may be

obtained in the time it takes to transport a suspect to the hospital so that his or her blood is

withdrawn by a trained professional, and “the mere possibility of delay does not give rise to

exigency.”140

Additionally, administrative punishments are in place through implied consent

laws to stop drinking and driving.141

Studies have shown that administrative punishments for first

time offenders may reduce recidivism by up to 70%.142

Forcing someone to submit to a

chemical test after a refusal infringes on one‟s constitutional rights more than is necessary since

punishments are already in place to enforce DUI laws. Thus, advancements since Schmerber

have altered the balance of policy interests.

136

Bohling, 494 N.W.2d at 405 (citing Skinner, 489 U.S. at 602). 137

National Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 (1989). 138

Bohling, 494 N.W.2d at 403. 139

Id. at 405. 140

State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998) (explaining that the possibility of a delay in

obtaining a search warrant does not create an exigent circumstance). 141

See, e.g. MO. REV. STAT. § 577.041 (2011); WIS. STAT. ANN. § 343.305 (West 2011). 142

Sentencing, supra note 114 at 20.

22

Finally, even though some courts have reached decisions consistent with Bohling by

adopting a per se rule, just as many have found in opposition with a totality of the circumstance

rule.143

Bohling cites a few different jurisdictions that have adopted a per se rule, such as

Mississippi and Maine.144

However, the court in McNeely cites a number of jurisdictions that

have rejected the per se approach and adopted a totality of the circumstances test, such as Iowa

and Utah.145

Thus, this argument fails to provide any real support for the decision.

In contrast to Bohling, McNeely persuasively relies on their own interpretation of

Schmerber and attacks jurisdictions such as Bohling that have adopted a per se approach.146

Although it is impossible to interpret Schmerber with absolute certainty, an overly broad

interpretation adopted by the per se jurisdictions runs the risk of seriously infringing on the

public‟s constitutional protections, which Schmerber seems to warn against in the opinion.147

McNeely’s interpretation of Schmerber provides the more reasonable interpretation.

Schmerber states:

Particularly in a case such as this, where time had to be taken to bring the accused

to a hospital and to investigate the scene of the accident, there was no time to seek

out a magistrate and secure a warrant. Given these special facts, we conclude that

the attempt to secure evidence of blood-alcohol content in this case was an

appropriate incident to petitioner's arrest.148

Because the court explicitly references the extra time that had to be taken to investigate the scene

and transport the individual to the hospital as special facts, they seem to be implying that it was

143

See State v. McNeely, 358 S.W.3d 65, 70-75 (Mo. 2012) (providing examples of multiple jurisdictions that have

adopted a per se rule or a totality of the circumstances test). 144

Bohling, 494 N.W.2d at 403-06. 145

McNeely, 358 S.W.3d at 70-71. 146

Id. at 70-74. 147

See Schmerber v. California, 384 U.S. 757, 772 (1966) (stating that they reach the judgment only on the facts of

the record and do not want it to be extended). 148

McNeely, 358 S.W.3d at 74 (citing Schmerber, 384 U.S. at 772).

23

these circumstances that created the exigent circumstance.149

McNeely’s interpretation seems

more reasonable in light of the language used in Schmerber.

McNeely also attacks jurisdictions such as Bohling that have adopted a per se approach by

referencing Schmerber’s warning for overly broad interpretations:

It bears repeating, however, that we reach this judgment only on the facts of the

present record. The integrity of an individual's person is a cherished value of our

society. That we today hold that the Constitution does not forbid the States minor

intrusions into an individual's body under stringently limited conditions in no way

indicates that it permits ... intrusions under other conditions.150

As stated in McNeely, Schmerber explicitly warns against a per se rule, such as the one adopted

in Bohling. The court seems to imply that there are more severe ramifications from a broad

interpretation when the constitutional implications are considered.151

In light of McNeely’s interpretation of Schmerber and the advancements made since

Schmerber was decided, a totality of the circumstances test provides the best balance of society‟s

interest in preventing drunk driving with individuals‟ constitutional protections.

III. STATES SHOULD IMPOSE SPECIFIC REQUIREMENTS THAT MUST BE

PRESENT BEFORE PERMITTING A WARRANTLESS BLOOD DRAW

Advances since Schmerber have made a totality of the circumstances test the proper

balance of the states‟ interest in preventing drinking and driving while protecting individuals‟

constitutional rights. States examining the issue should consider a comprehensive checklist for

officers to follow, with a warrantless blood draw being the last option.

149

See id. 150

Id. at 74 (citing Schmerber, 384 U.S. at 772). 151

See id. at 74.

24

A. Universal Checklist for Officers

In order to assure that police officers do not infringe upon a citizen‟s constitutional rights,

states should impose a universal checklist for officers to fill out before being able to request a

warrantless blood withdrawal. Precedent decisions have held that when exigent circumstances

are a close call, officers should always attempt to obtain an electronic warrant.152

The state

should determine a period of time that they believe is objectively reasonable for a suspect to wait

prior to a blood draw.153

Once it is determined that an electronic warrant cannot be obtained in

the reasonable length of time, the officer should run a background check. If the suspect has no

prior DUI arrests and is driving on a valid driver‟s license, the officer should inform the suspect

of his or her rights under the state‟s implied consent laws and ask whether the suspect wants to

submit to a chemical test. If the suspect refuses, the officer should be required to inform the

suspect of the administrative penalties under the implied consent statute, including an extended

license suspension.154

However, if the suspect is driving on a suspended license or has been

arrested for DUI in the past, the officer should be permitted to gather evidence in any way

necessary, including a warrantless blood draw.

B. Obtaining a Paper or Electronic Warrant

In any circumstance, not just in DUI cases, an officer should always first attempt to

obtain a warrant before performing a search whenever possible. When exigent circumstances are

a close call, a police officer should always attempt to obtain an electronic warrant.155

Because of

the abundance of DUI cases in contemporary society, states should consider adopting a program

152

United States v. McEachin, 670 F.2d 1139, 1146 (D.C. Cir. 1981). 153

State v. Bohling, 494 N.W.2d 399, 408 (Wis. 1993) (Abrahamson, J., dissenting) (“The state had the burden to

show that there was insufficient time to use the telephonic search warrant procedure.”). 154

Administrative punishments, such as an extended license suspension or immobilizing the vehicle, have shown to

prevent future DUI arrests. For more information on preventative measures, see Sentencing, supra note 114 at 12. 155

McEachin, 670 F.2d at 1146.

25

for electronic warrants, similar to the one employed in Douglas County, Kansas, by providing

iPads to judges so they have the ability to electronically sign off on a warrant in a matter of

minutes.156

Although it may initially raise costs, the result will be a more efficient proceeding,

resulting in fewer appeals, and thereby saving tax payers money. The process will only continue

to become more efficient and less expensive as technology evolves. With electronic warrants

taking less than an hour to execute, there should not be many instances where an officer can

objectively determine that dissipation is an issue that must be addressed immediately.157

C. Implied Consent

Implied consent statutes should be used as an alternative way to deter drinking and

driving when the suspect refuses to take a chemical test and circumstances make it impossible to

obtain a warrant in a timely fashion. Studies show that administrative punishments through

implied consent laws have been an effective means of deterrence.158

Implied consent statutes

should enforce strict administrative punishments, such as revoking the suspect‟s license for a

period of one year for a first time offender, in addition to possibly impounding the individual‟s

vehicle.159

However, critics of implied consent statutes may question what happens if a suspect

is caught driving on a suspended or revoked license and circumstances make it impossible to

obtain an electronic warrant in a timely fashion.

D. Warrantless Blood Draw

Under a totality of the circumstances test, a warrantless blood draw should be the last

form of enforcement to be considered, but it may be unavoidable in certain situations. If an

individual‟s license has already been suspended or they are a repeat offender and circumstances

156

Diepenbrock, supra note 93 (stating that Douglas County employed the use of iPads because of the abundance of

DUI cases and the rapid dissipation rate of alcohol). 157

State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 158

Sentencing, supra note 114, at 12. 159

Id.

26

make it impossible to obtain a warrant in a timely fashion, an officer may be justified in

executing a warrantless blood draw. It is important to impose a punishment that will deter the

conduct in the future. Most states impose stricter penalties for second or third time offenders.160

Therefore, if the implied consent statute or previous arrest have not stopped the individual from

committing the offense, it may be necessary to obtain the evidence in any manner so that justice

may be served. However, this should be an absolute last resort that occurs only if it is impossible

to obtain a warrant in a timely fashion. What constitutes a timely fashion should be determined

by the jurisdiction.

In cases where a warrantless blood draw was executed, the burden should always be on

the prosecution to objectively show that the officer could not have obtained a warrant in a timely

fashion set forth by the court.161

If a court determines that it was reasonable for the officer to

determine that a warrantless blood draw was the only way to assure that justice is served, the

evidence should be held admissible without violating one‟s constitutional rights.

IV. CONCLUSION

Obtaining a blood sample without a warrant in DUI cases should be considered an

unreasonable search under the Fourth Amendment of the United States Constitution, except in

some very limited circumstances. The language of the landmark case of Schmerber v. California

is unclear as to whether dissipation should be considered an exception to the Fourth Amendment

as a per se exigent circumstance or whether special circumstances created the exigency.162

In

attempting to find the proper balance of the state‟s interest in preventing drinking and driving

and an individual‟s right to be free from illegal searches and seizures, advancements made since

160

8 AM. JUR. 2D AUTOMOBILES § 971 (2012). 161

State v. Bohling, 494 N.W.2d 399, 408 (Wis. 1993) (Abrahamson, J., dissenting) (“The state had the burden to

show that there was insufficient time to use the telephonic search warrant procedure.”). 162

See Schmerber, 384 U.S. at 771.

27

Schmerber make a totality of the circumstances test the most logical option. In the future, states

should consider employing a totality of the circumstance approach that is known to the officers

with a warrantless blood draw being the absolute last option.