A flurry of new motions is about to hit Minnesota courts. The United States Supreme Court has granted cert to hear a case arising out of Missouri: State of Missouri v. Tyler G. McNeely, 358 S.W.3d 65 (Mo. 2012). McNeely follows a line of cases dealing with the issue of warrantless, nonconsensual blood draws.
In 1966, the United States Supreme Court decided the case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Schmerber Court stated that in rare circumstances, a warrantless, nonconsensual blood draw was allowed. There must be probable cause plus exigent circumstance beyond dissipation of alcohol from the body; the Court named two factors in Schmerber: time needed to bring the defendant to the hospital and time needed to investigate the accident scene. Id. at 769–71. Because too much time would have passed before a warrant could have been procured, the Court found that the warrantless blood draw was admissible. Id. at 771.
In 2008, the Minnesota Supreme Court decided the case of State v. Shriner, 751 N.W.2d 538 (Minn. 2008), cert. denied Jan. 21, 2009. Interpreting Schmerber, the Minnesota Supreme Court reversed the court of appeals in a split decision, holding that the “rapid, natural dissipation” of alcohol from the body creates a single-factor exigency allowing a nonconsensual, warrantless blood draw when law enforcement has probable cause to believe that the defendant violated the criminal vehicular homicide or operation laws. Id. at 549–50.
In 2009, the Minnesota Supreme Court decided the case of State v. Netland, 766 N.W.2d 202 (Minn. 2009). This case involved a breath test. Id. at 205–06. Here, the court held that “under the exigency exception, no warrant is necessary to secure a blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an element of the offense.” Id. at 214. “[T]he evanescent nature of the evidence creates the conditions that justify a warrantless search. It is the chemical reaction of the alcohol in the person’s body that drives the conclusion on exigency . . . .” Id. at 213.
Now, in 2012, the United States Supreme Court is preparing to hear a similar issue in McNeely. The Missouri Supreme Court arrived at a different interpretation of Schmerber than did Minnesota and two other states, which is noted in the opinion. 358 S.W.3d at 73–74. The court quoted Netland and Shriner, and wrote, “This Court cannot agree with these interpretations of Schmerber. In Schmerber, the Supreme Court rejected a per se exigency and explicitly warned against such expansive interpretations.” Id. at 74. Essentially, the Missouri Supreme Court is telling Minnesota that Minnesota is wrong to have interpreted Schmerber to mean that dissipation of the alcohol in the body alone is always an exigency. Id. The court continued, “Schmerber requires some exigency beyond the mere natural dissipation of blood-alcohol evidence. It explicitly found that the time delay that resulted from both the investigation of the accident and the transportation of the defendant to the hospital were ‘special facts’ that authorized a warrantless blood draw under the Fourth Amendment.” Id. at 74 (citing Schmerber, 384 U.S. at 770–71). Indeed, the Schmerber court warned, “It bears repeating, however, that we reach this judgment only on the facts of the present record.” 384 U.S. at 772. “That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusion, or intrusions under other conditions.” Id.
The United States Supreme Court addressed the issue of bodily intrusion in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). The Court wrote, “A compelled surgical intrusion into an individual’s body for evidence, however, implicates the expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence of a crime.” Id. at 759. The Court continued, “The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.” Id. at 760.
McNeely is on its way to the United States Supreme Court. Resolution of McNeely must include a decision as to whether or not dissipation of alcohol in the body alone is an exigency that, coupled with sufficient probable cause, allows a nonconsensual, warrantless blood draw. In Minnesota, blood, breath, and urine tests all implicate the Fourth Amendment. See Ellingson v. Commissioner of Public Safety, 800 N.W.2d 805, 807 (Minn. Ct. App. 2011); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). No matter the test, the United States Supreme Court in McNeely will determine the standard to be utilized in alcohol-related cases.
Another issue that arises in these motions is implied consent—is it really consent? Is it coerced? Minnesota courts have declined to reach the issue of whether the Implied Consent Advisory is coercive, leaving an individual’s consent obtained during the advisory void. The courts presented with this issue have fallen back to the conclusion in Netland that dissipation of alcohol is an exigent circumstance, which, coupled with probable cause, allows for a warrantless search. See, e.g., State v. Brooks, No. A11-1043, 2012 WL 1914073, *2 (Minn. Ct. App. May 29, 2012); Swanson v. Comm’r of Public Safety, No. A11-1589, 2012 WL 1813431, *2 (Minn. Ct. App. May 21, 2012); State v. Zortman, No. A11-646, 2012 WL 426586, *3 (Minn. Ct. App. Feb. 13, 2012); State v. DeNucci, No. A09-2340, 2010 WL 4181148, *6 (Minn. Ct. App. Oct. 26, 2010); Ersfeld v. Comm’r of Public Safety, No. A08-1856, 2009 WL 2595947 (Minn. Ct. App. Aug. 25, 2009).
The future of Shriner and Netland now rest with the United States Supreme Court. If the Court rules in favor of McNeely, then Minnesota Supreme Court would have erred in both Shriner and Netland and Minnesota law must change.