The potential impact of Missouri v. McNeely is so far-reaching, that I feel it is necessary to break it down over several posts. For some background on the case, a man (Mr. McNeely) in Missouri was pulled over for suspicion of drunk driving. He submitted to field sobriety tests and performed poorly. He was then asked to take a breath test, to which Mr. McNeely refused. Upon his refusal, law enforcement transported him to a medical clinic where his blood was drawn over his objection and without his consent. Mr. McNeely was found to have a blood alcohol content above the legal limit and was charged with Driving While under the Influence.
Mr. McNeely and his attorney challenged this warrantless blood-draw as a violating the Fourth Amendment right to be free from unreasonable government search or seizure. The defense relied on the argument that a blood draw is such an intrusive type of search that it should require a warrant, while the prosecution argued that the natural dissipation of alcohol from the blood was an “exigent circumstance” and therefore an exception to the warrant requirement. At the trial court level, the judge agreed with Mr. McNeely, the state appealed, and the case eventually ended up in front of the Supreme Court. The impact of the Supreme Court’s holding is still being debated. However, it is clear that the natural dissipation of alcohol from the bloodstream is not a per se exigency so as to never require a warrant.
So what does all of this mean for Oregon? Unfortunately, we can’t be 100% sure yet on how this will affect every case for driving under the influence of intoxicants. However, for those people charged with DUII in Oregon based on a warrantless blood draw, it seems that in a vast majority of cases, the BAC evidence will be thrown out as a product of an illegal search. For breath tests, the waters are a bit murkier. Though the same dissipation/exigency arguments would apply, a breath test is not as intrusive as a forced blood draw, and it appears courts will be deciding these issues on a much more case-by-case basis.
Additionally, it will be interesting to see what happens to Oregon’s implied consent laws. Oregon Courts have previously held that the implied consent scheme in Oregon is inherently coercive, which means that a person who “consents” to a breath test after being read the implied consent warnings hasn’t consented voluntarily. Without the ability to rely on “exigent circumstances” or consent as exceptions to the warrant requirement, this could be a major problem for law enforcement moving forward as they attempt to request breath tests in routine DUII investigations.
Finally, despite being unaware of how this case could impact every DUII case in Oregon, McNeely is a welcomed sign from the Supreme Court that it has endorsed a modern view of the warrant requirement in search and seizure cases. Defense attorneys and trial courts have long lamented law enforcement’s lack of a warrant in search and seizure cases, and ultimately, this case should lead us to a system in which police officers are at least making attempts to get search warrants before deciding to violate your rights.