You’ve been arrested for a
DUII. You’ve failed the field sobriety
tests, and now you have the choice of taking the breath test or refusing. On the one hand, you could fail the breath
test, and as
the officer tells you, you can get your license suspended. Not only that, if you blow over the .08 limit, the state will use that evidence to prove you were driving under the influence of intoxicants. On the other hand, you could refuse, your license will be suspended anyway, and you’ll be slapped with a violation of the implied consent law. At least the state won’t have evidence of how much you had to drink? Not exactly.
In Oregon, drivers facing DUII investigations may be taken directly to a hospital by an officer to have their blood drawn for evidence of blood alcohol content (BAC). After a car accident, if a driver is suspected of being intoxicated, officers can collect blood of the suspect from the treating hospital to gain evidence of intoxication without a warrant.
How is this not a constitutional rights violation? In 2010, the Supreme court of Oregon decided, “for purposes of the Oregon Constitution, the evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw”, unless the particular facts of a case show that a warrant could have been obtained and executed significantly faster than the process of obtaining the blood draw. State v. Machuca, 347 Or 644 (2010). Basically, officers investigating DUIIs can take your blood without a warrant because the alcohol content in your blood (the evidence) is disappearing every second and there’s not enough time to get a warrant before the evidence disappears entirely.
However, the United States Supreme Court may have thrown a wrench in the Oregon system. In a recent plurality decision, the United States’ Supreme Court ruled “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 569 U.S. ____ (2013) (emphasis added). Justice Sotomayor, writing for the plurality, explained, “when officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. She goes on to point out that while some circumstances may make obtaining a warrant impractical, but it is those circumstances that require case by case factual determination of whether obtaining a warrant is impractical rather than a per se exception for DUII investigations. In other words, the facts of every DUII case should be examined separately to determine whether, under the totality of the circumstances, obtaining a warrant was impractical before taking a suspect’s blood.
What does this mean for Oregonians? Well, if you have had your blood drawn during a DUII investigation, you may have a challenge to the admission of that evidence against you under the Fourth Amendment. We may also see some new cases in the Oregon Supreme Court dealing with this issue and possibly some new legislation. Contact a lawyer to see if your case may have a new challenge to a warrantless blood draw.
and the DUII Attorneys at Harris Law Firm