2013 DWI - DEFENSES RISE UNDER THE 4th AMENDMENT - MISSOURI v. MCNEELY
On April 17, 2013, the U.S. Supreme Court issued a landmark decision in the case of Missouri v. McNeely. Over the years, there has been a steady erosion of rights to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. The exceptions to the requirement that law enforcement acquire a warrant before a search occurs was almost swallowed by the exceptions to that warrant requirement. The most vexsome exception was one for “exigent circumstances." Exigent circumstances exist where there is some urgency for a search to occur immediately. In DWI cases, it was argued that he rate at which alcohol dissipates from the blood is an exigency allowing law enforcement to require samples of blood, breath or urine – a search under the fourth amendment.
That is the issue that was argued in McNeely. In that case, the court put a halt to per se rules allowing for such DWI testing to occur without a warrant. Judge Sotomayor stated in the Court’s opinion that – “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. 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."
This decision puts a halt on the long slide away from the constitutional protections of the fourth amendment and gives rise to new challenges in every DWI case where testing occurs. The decision is well supported by the existing law. Both the United States and Minnesota constitutions protect an individual's right to be free of unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally, a warrantless search is "unreasonable" per se. State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985). The "overriding function" of this constitutional guarantee is to "protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U.S. 757, 757, 986 S.Ct.1826, 1834, 16 L.Ed.2d 908 (1966). But this constitutional guarantee does not protect against all intrusions. Rather, it protects only against unreasonable intrusions or searches "which are not justified in the circumstances, or which are made in an improper manner." Id. at 768, 86 S.Ct. at 1834. Thus, the general rule that only searches pursuant to a warrant are "reasonable" is subject to several "specifically established and well delineated exceptions." Hanley, 363 N.W.2d at 738.
The United States Supreme Court and the Minnesota Supreme Court have uniformly held that a Breathalyzer test constitutes a “search" pursuant to the Fourth and Fourteenth Amendments to the United States Constitution. See, Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)(blood, urine, and breath analysis all constitute searches as “they intrude upon expectations of privacy as to medical information"). Similarly, Minnesota Courts have ruled that chemical testing under Minnesota’s implied-consent law constitutes a “search" within the meaning of the Fourth Amendment. As such, any consent to be searched that is obtained "must be received, not extracted." State v. Dezso, 512 N.W.2d 877, 880 (Minn.1994); see also In re Welfare of J.W.K., 583 N.W2d 752, 755 (Minn. 1998) (applying Fourth Amendment protections to physical act of drawing blood and medical data obtained from subsequent chemical analysis).
In Skinner, the United States Supreme Court held that a Breathalyzer test, which generally requires the production of “deep lung" breath for chemical analysis, implicates similar concerns about bodily integrity as blood tests, and should likewise be deemed a search.
In light of our society’s concern for the security of one’s person, see, e.g.,Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests. Arizona v. Hicks, 480 U.S. 321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347 (1987). Much the same is true of the breath testing procedures. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or “deep lung" breath for chemical analysis, see, e.g., California v. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). Skinner, 489 U.S. at 616-17. Consequently, the Defendant may raise the violation of federal and state constitutional rights as grounds for suppression of chemical or physical test results and the court may exclude chemical or physical test results if the sample was improperly secured.
In the end, defenses exist to DWI offenses under the fourth amendment right to be free from unreasonable searches and seizures. What is unreasonable will be determined on a case by case basis and a totality of the circumstances test. Over time, our courts will define more closely when a warrant is necessary and when it is not. Until that occurs, challenges to DWI testing should be made.