But the simple fact that alcohol in the blood begins dissipating when a person stops drinking does not qualify as such a circumstance, the high court decided in a case out of Cape Girardeau County.
Assistant prosecutor Jack Koester said he would appeal to the U.S. Supreme Court because of a split in how states have interpreted the federal court's 1966 ruling in a case on warrantless blood tests. In Iowa and Utah, for example, the state supreme courts ruled that dissipation of alcohol in the blood doesn't qualify as a special circumstance, but the high courts in Wisconsin, Oregon and Minnesota all ruled that it does.
"It's a bit of a long shot, because there are a lot of petitions filed every year and the Supreme Court only takes a small percent," Koester said. "But hopefully the court will think it's a worthwhile case and will weigh in on the issue."
Siding with the defendant in a routine 2010 stop for suspected drunken driving, Missouri's high court ruled that the man was subjected to an unconstitutional search when a hospital employee drew his blood on orders from a Missouri State Highway Patrol trooper without a warrant. The man had refused a road-side breath test.
The Missouri justices wrote that there must be "exigent circumstances under which the time needed to obtain a warrant would endanger life, allow a suspect to escape or risk the destruction of evidence."
The court pointed to the same U.S. Supreme Court ruling in 1966, in Schmerber v. California, which carved out "a very limited exception to the warrant requirement for a blood draw in alcohol-related cases." In that case, the blood test was delayed because the officer first had to investigate a serious accident involving a suspected drunken driver and get the injured defendant to a hospital. Stopping to get a warrant would have delayed the blood test even more.
But in the Missouri case, there was no accident, and the trooper who stopped the driver at 2:08 a.m. took him directly to a hospital, where blood was drawn at 2:33 a.m. That scenario means there were no special circumstances, the Missouri court wrote.
"Defendant's case is unquestionably a routine DWI case," the court wrote in upholding a trial judge's suppression of the blood-test evidence.
Cape Girardeau attorney Stephen C. Wilson, who represented defendant Tyler McNeely, said the county prosecutor there has created a system that makes it simple to get a judge's warrant for a search.
"We showed six cases in which they got a warrant in under two hours in the middle of the night," Wilson said.
One or more scientific tests presently are conducted in all jurisdictions on driving-while-intoxicated suspects for the purpose of (1) bolstering and corroborating police opinion testimony of intoxication and, (2) in those states that set presumptive blood-alcohol intoxication levels, to demonstrate that the defendant's blood-alcohol level exceeded the permissible. Use of evidence of blood-alcohol concentration helps standardize the opinions of experts and minimizes reliance on the traditional evidence of intoxication on which opinions can vary so widely. Where a scientific test has been made on the defendant, it often is the main weapon of the prosecution, with all other evidence being used to corroborate the test results.
There are four basic scientific tests which may be conducted to determine the degree of intoxication: blood, urine, breath, and saliva tests. The results of urine, saliva, and breath tests for alcohol must be converted into a blood-alcohol reading in order to be useful in determining whether the subject was intoxicated. Read More...