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Does Missouri v. McNeely apply retroactively to nonconsensual warrantless blood draw before 4/17/2013?

Palo Alto, CA |

On 4/17/2013, the U.S. Supreme Court ruled that "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." I was arrested in 2012, but my case is still in pretrial phase, no Motion to Suppress Evidence has been filed yet.

My question is whether Missouri v. McNeely applies to DUI searches in California prior the 4/17/2013 ruling? see Davis v. United States, 131 S. Ct. 2419 (2011)

BTW, I refused the Breathalyzer or blood test and my blood was taken by the Police without my consent or warrant, the Police told me they didn't need a warrant. There was not accident or injury involved. The Davis v. United States opinion could be found at:,50&case=2510124668192463279&scilh=0

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Attorney answers 9


Obviously there is no case law on that specific issue but I bet it does.


Yes McNeely is good law and applies to a 2012 open case. Your individual case may or may not be covered under the holding.

Of course, every DUI case is different and you should consult an experienced DUI defense attorney in your area with questions regarding your specific case. It is always in your best interest to have a good DUI attorney represent you when you have been arrested for a DUI.


McNeely only applies to warrantless blood draws. It may be applied to any pending case (prejudgement, undisposed, etc.). Many states have statutes that allow for blood to be taken without a warrant if you have injured someone in an accident or if you have prior convictions. Now post McNeely these statutes are not enough, the state must prove the exigent circumstances that required a search without a warrant (sticking a needle in your blood stream is a search just as breaking down the door to your home is a search). However you have not stated weather a warrant was obtained to search your blood or not so the application to your case is not certain.


File the motion and find out. I think that the blood draw would have to be a refusal case for McNeely to apply, but file the motion, it can't hurt.

Contributions on in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.


The short answer is YES! It does apply as long as you have not been convicted. The important thing to note is that it only applies if your case involved a warrantless blood draw that you did not conset to. Please contact a competent DUI lawyer ASAP to discuss how this case can affect your case.


McNeely itself holds that the Fourth Amendment proscription against unreasonable searches and seizures applies in cases where law enforcement’s only reason for a warrantless blood draw against an individual's consent is, the natural dissipation of blood alcohol. In essence, where there are no "exigent" circumstances other than the "natural dissipation of alcohol" from an individual's natural process of eliminating alcohol, if a warrant could have been obtained, the results get suppressed. The California Highway Patrol routinely conducted forced blood draws and video taped it in many cases to use as evidence of a refusal. CHP has recently suspended the practice after McNeely. The Supreme Court in McNeely distinguished the case from Schmerber v. California where in that case, there was an accident involving alcohol. Therefore, it applies to any pending case where there was a refusal and the only reason for the forced blood draw was the "natural dissipation of alcohol" where a warrant could have been obtained. There will undoubtedly be litigation on the issue of whether a warrant could have been obtained in a timely manner, whether it applies to closed cases, and most importantly, what other situations may be other than accident cases where warrantless forced blood draws may be lawful. Very interesting and developing issue.

Tai Christopher Bogan

Tai Christopher Bogan


There are pending appeals in some courts that have asked for further briefing in light of McNeely. Some courts have even asked "Does McNeely apply retroactively in light of United States v. Davis" As you are likely familiar Davis refused to extend Arizona vs. Gant retroactively or at least they rule that the Leon good faith exception applied and therefore the exclusionary rule would not apply in pending cases. In any event, I believe that McNeely is retro and applies to pending cases, since McNeeley didn't over rule Schmerber but simply restated the rule that "under the totality of the circumstances" the evidence in Schmerber case was not to be excluded. But yes, it is a very interesting developing case.

Joshua Kaizuka

Joshua Kaizuka




Hire an attorney. This issue is very likely to be litigated and probably appealed. My opinion is that Davis doesn't apply to the facts your present. Quick lesson - the Gant case overuled the Belton case. Both were US Supreme Court cases. Belton allowed the officer to search the car incident to arrest. Gant flipped that rule on its head in many circumstances.

Police relied on Gant to search cars for 40 years. So the cops in the pending cases said "hey we relied on the case of Belton...we were acting in 'Good Faith' therefore the court shouldn't exclude evidence that was acceptable under Belton, but not now Gant.

The US Supremes agreed and in Davis they applied the US vs. Leon "good faith" exception to the exclusionary rule = the rule that allows the exclusion of evidence for 4th amendment violations.

Here, McNeely never overruled Schmerber but reinforced the ruled that the court should look to the "totality of the circumstances" when deciding whether to grant a motion to suppress. My opinion is that McNeely shoudl apply to your case.

The above information does not establish an attorney client relationship nor is it meant to provide legal advice.


There is appalling confusion among lawyers and courts alike, so this will prove to be an unnecessarily rocky road. McNeely did not announce a new rule of law, but instead merely reiterated the rule given us 47 years ago in Schmerber, which was largely ignored or not noticed by too many lawyers and many courts. It stands for the same notion now as Schmerber - a warrant is presumptively required for a DUI blood draw. Some think it applies only to those blood draws occasioned by hogtying people and forcefully extracting - wrong: a search incident to arrest blood draw is what Schmerber, and McNeely, applies to, and that is what all DUI blood draws are - searches incident to arrest. The court notes that because the invasion beneath the skin is of greater signficance than searching a person's pockets, the search incident rationale does not carry the whole day - a warrant is nevertheless required, absent evidence-based justification for not obtaining one. But since it is not new law, it applies to all pending cases, and it will invite reversal for those of us who brought McNeely/Schmerber attacks, as I have done since the state version of McNeely came out a couple of years ago. I have been ordered to file a supplemental brief on a pending interlocutory appeal on calendar right now, defining the application of McNeely to my case. Since I had brought a McNeely motion which was denied with all of the insight of a Dan Quayle discussing foreign affairs, the application is clear and the motion denial will have to be reversed.

Davis, which is ignorant reactionary heresy, will not apply, because, until it is reversed [and I think it has been by implication in two subsequent cases], it will apply only where the established rule of law is reversed, not where it is reiterated. In addition to Davis's faulty history, it reiterates a troubling message - ignorance of the law is an excuse for government [even though it is never an excuse for us regular folk!]. But it won't apply here.


It depends on which judge is hearing the motion to suppress.

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