Michigan DUI drivers must, upon reasonable request of a police officer, must give a sample of their breath blood or urine so that it can be tested for the presence and/or amount of alcohol or drugs. This requirement is based on Michigan’s implied consent law.
But what happens if the driver refuses to give a sample? In Michigan DUI cases it is a well-established process that when the driver refuses, a warrant is obtained. In fact, Michigan’s DUI law requires the officer to get a warrant for blood.[i] Often this is done through remote means, i.e., via fax, telephone and the like, a procedure that is lawful in Michigan.[ii] The examining magistrate or judge must then review the warrant and determine if a blood draw is appropriate. According to Michigan DUI law, this blood draw must take place “in a medical environment.”
On April 17, 2013, the United State Supreme Court, in the case of Missouri v. McNeely, ruled that Michigan’s procedure was both appropriate and necessary. From this perspective, the ruling will change Michigan law and procedure very little.
What is interesting about this case however is the impact the court’s reasoning may have on Michigan DUI law, the closeness of the decision and the basis or rational of the decision.
The Impact of Missouri v. McNeely on Michigan DUI Law
As it relates to the warrant issue, the decision is likely to have very little impact with the possible exception that it leaves the door open to allow warrantless blood draws under some circumstances.
Essentially, the Court was called upon to decide whether or not the dissipation of alcohol always created an exigent circumstances exception to the warrant requirement. The court found that it did not:
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
Thus, the Court acknowledged that circumstances may exist where a warrantless blood draw would be permissible. As a result, it is possible that we might start seeing warrantless blood draws in Michigan, or at least more attempts by police officers and prosecuting attorneys to establish appropriate exigent circumstances. Whether this would comport with the Michigan DUI laws requiring a warrant is another matter.
- Medical Environments and Blood Draws
It has become increasingly commonplace in Michigan for blood draws to be conducted in a jail cell, jail nurse’s station or EMT van called to and parked at a police station rather than at an actual hospital. In these cases the question often is whether or not these alternatives satisfy the DUI law in Michigan, specifically, the statute’s requirements. MCL 257.625a provides in part:
(c) A sample or specimen of urine or breath shall be taken and collected in a reasonable manner. Only a licensed physician, or an individual operating under the delegation of a licensed physician under section 16215 of the public health code, qualified to withdraw blood and acting in a medical environment, may withdraw blood at a peace officer’s request to determine the amount of alcohol or presence of a controlled substance or both in the person’s blood, as provided in this subsection.
When the issue of whether or not a jail cell for example is a medical environment, many courts have ruled that it is. It may be that the Missouri v. McNeely case calls this practice into question as it apparently emphasizes the importance of a hospital blood draw. It should be noted however, that the “medical environment” language was not specifically addressed. But, nearly every time the place of blood draws in discussed in the court’s opinion, the assumption is made that the place is a hospital.
For example, the Court indicated:
We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based “on the facts of the present record.” Id., at 772.
Then, the court indicates in footnote 2, page 6 of the Chief Justice’s Opinion:
This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California (“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse”); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns. See ante, at 14–15
Furthermore: [A]s to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable.
It would appear that this language reinvigorates the argument that in Michigan “medical environment” should mean hospital.
Closeness of the Opinion
This was a 5/4 decision that could easily have gone the other way. The prospect of a carte blanche exigent circumstances exception would have opened the door in Michigan for the opposite of a more restrained interpretation of “medical environment” and more than that, opened the door to roadside blood draws.
The prospect of police officers being “trained” to draw blood, and then doing so roadside, as they do in Arizona, would have become an all too real possibility in Michigan.
More broadly speaking, such an all-encompassing interpretation would have led to a further evisceration of the Fourth Amendment’s protections against unreasonable searches and seizures.
Rational of the Decision
In Jones, the Government used a GPS they had surreptitiously installed in the defendant’s jeep to collect evidence used against him in a narcotics trial. He was found guilty and on appeal the district court found use of this evidence ok based on the diminished expectation of privacy in one’s automobile. The Court of Appeals reversed. The USSC ruled against the government’s appeal, the Supreme Court majority did not apply the “reasonable expectation” test. It found that Antoine Jones had been the object of a Fourth Amendment search, which is presumptively unreasonable in the absence of a warrant, because of Jones’s property rights in the car.
The Jones case was a reversal of the trend toward examining alleged fourth amendment violations based on the “reasonable expectation” test.
In Missouri v. McNeely the government again argued for application of the reasonable expectation test. In rejecting this broader interpretation and analysis the Court indicated:
But the fact that people are “accorded less privacy in . . .automobiles because of th[e] compelling governmental need for regulation,” California v. Carney, 471 U. S. 386, 392 (1985), does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin.
United States v. Jones is a case that means having title to a vehicle bars the government from using it as a surveillance device.[iv] It would appear that McNeely is a case that means have “title” to one’s own body bars the government from “piercing the skin”; at least not without first establishing before a neutral and detached Magistrate or Judge that at least probable cause exists to believe the driver was drunk.
[i] Mich. Comp. Laws Ann. §257.625d(1)
[ii] Mich. Comp. Laws Ann. §§780.651(2)–(6) (West 2006);
[iii] See, Litigating the Fourth Amendment after Jones, Harper, The Champion, January/February (2013) and U.S. v. Jones, 132 S. Ct. 945 U.S., 2012
Patrick T. Barone
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