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DUI prosecution set back

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High profile cases may be impacted

By Damon Lawrence

A decision issued by the U.S. Supreme Court on Wednesday could have major ramifications in drunk-driving cases across Tennessee.

“We’re looking at it,” District Attorney General Russell Johnson said.

“We’re talking to the people in Nashville that run the DUI programs about what the response is going to be, but clearly, no more forced blood draws.”

The case — Missouri v. McNeely — involved a man who was stopped by a police officer for speeding and crossing the road’s centerline.

“After declining to take a breath test to measure his blood alcohol concentration, he was arrested and taken to a nearby hospital for blood testing,” the Supreme Court said. “The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample.”

McNeely’s blood-alcohol content was above the legal limit and he was charged with driving while intoxicated.

He moved to suppress the test results, contending the taking of his blood without a search warrant violated his rights under the Fourth Amendment.

The trial court and the Missouri Supreme Court agreed.

“This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency,” the U.S. Supreme Court said, “and thus, the nonconsensual, warrantless test violated McNeely’s right to be free from unreasonable searches of his person.”  

The U.S. Supreme Court agreed with the Missouri state courts.

Justice Sonia Sotomayor delivered the opinion.

“Here and in its own courts the state based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect,” the Supreme Court said.

In the 1966 case Schmerber v. California, the Supreme Court held that an officer can have a person’s blood drawn without a warrant if the officer “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.”  

The Supreme Court concluded those circumstances didn’t exist in the Missouri v. McNeely case.  

“The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases,” the Supreme Court said. “We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”

The decision was cheered by some local defense attorneys.

“That sounds like what I would think, that you just can’t go around taking people’s blood without having probable cause to do so and getting a warrant,” said defense attorney Chris Cawood.

“I think it’s a well-written opinion,” defense attorney Pat Cooley added. “It’s not saying they can’t force draw blood. It’s saying they’re going to limit the circumstances when they can.”

Cooley said Tennessee law allows forced blood draws when there was a death or injury or a suspect has a previous DUI.

“My gut feeling is the forced blood draw will stand when there’s death or bodily injury,” Cooley said.

Cooley said he thinks courts will find forced blood draws unacceptable in DUI cases where no one was hurt.  

“Unless the facts of that particular case can show there was an emergency,” he said.

Johnson said officers can still have a suspect’s blood drawn. They’ll just need a warrant to do so.

“That means more time and it’s harder to get a search warrant as opposed to just taking someone in for a mandatory blood draw,” he said.

Some of the local cases that could be affected by the decision involve Kingston City Councilman Kevin McClure and The Roane Alliance Vice President of Business Development Darrell Williams.

McClure was charged with DUI after he was found unresponsive in his vehicle on Ladd Wright Road on May 22, 2012.

Test results found his blood alcohol level at .21. The legal limit is .08.

McClure’s attorney, Tom McFarland, argued the blood results should be suppressed, but General Sessions Judge Larry Warner denied the motion, and the case was bound over to the grand jury.

McFarland said McClure objected to the blood draw.

“We’ll have to look at how it affects that case and other cases,” Johnson said of the Supreme Court decision. “It will mean that we can’t use blood-test results where it was done on a forced draw situation.”

Johnson indicated that prosecutors can still move forward with the DUI case against McClure.

He said they’ll just have to rely on other evidence, such as police video and testimony of the arresting officer.

McClure performed poorly on the field sobriety tests, according to officer Michael Self’s report about the arrest.

Self also reported finding a bottle of vodka in McClure’s car.

In the case of Williams, Kingston police charged him with DUI after a lunchtime crash last September. He was also charged with violation of implied consent for refusing to submit to a blood-alcohol test.