In a recent Missouri Supreme Court opinion, State of Missouri v. Tyler G. McNeely, the Missouri Supreme Court held that an officer not presented with "special facts" that an emergency is present must obtain a warrant to draw blood from an individual who has been arrested for a DWI and refuses to give his blood.

In this case the defendant, Tyler McNeely, was pulled over for speeding at 2 a.m. As the officer spoke with McNeely he noticed McNeely displayed signs of intoxication. McNeely performed standard field sobriety tests and the officer believed based on the results of the tests McNeely was intoxicated. The officer then placed McNeely under arrest. McNeely was then offered to take a breath test and refused. Upon McNeely's refusal the officer drove McNeely to a local hospital to test his blood and secure evidence of his intoxication. McNeely refused to consent to a blood draw and the officer directed that his blood be taken without his consent. The results of the blood test revealed that McNeely's blood alcohol content was well above the legal limit.

In 1966 the United States Supreme Court held in the case Schmerber v. California that when there are "special facts" giving an officer the reasonable belief that circumstances present an emergency in which the delay in obtaining a warrant might permit evidence to be destroyed then an officer can take a defendant's blood without his consent. In Schmerber v. California the "special facts" supporting the threat of evidence destruction were that the percentage of alcohol in a person's blood begins to diminish shortly after a person stops drinking and that the officer had to take time both to investigate the scene of an accident and to transport the defendant to the hospital, giving the officer no time to seek out a judge to secure a search warrant.

However, in McNeely's case the officer was not faced with the same kind of special facts. Unlike, Schmerber v. California, in McNeely's case there was no accident to investigate, no need to arrange for the medical treatment of any occupants of the vehicle, no delay that would have permitted evidence to be destroyed before a warrant could be obtained, and no evidence for which the officer would have been unable to obtain a warrant had he attempted to do so.

The sole special fact present in McNeely's case was that blood alcohol levels dissipate after drinking ceases. The Missouri Supreme Court says this alone is not reason to allow an officer to order a blood test without first obtaining a warrant. There must be some other special emergency to allow the officer to take a person's blood without a warrant.

I believe this is a big win for the 4^th Amendment of the United States Constitution. It would have been a very sorry outcome if the Missouri Supreme Court held it is all right of law enforcement officers to stick a needle in your arm without your consent.