Page 31 - November December 2019 TPA Journal

we later held that the exigent-circumstances the blood begins to diminish shortly after drinking
exception would not permit a warrantless blood stops, as the body functions to eliminate it from the
draw in every drunk-driving case, we acknowledged system. Particularly in a case such as this, where [2]
that delays in BAC testing can “raise questions time had to be taken to bring the accused to a
about . . . accuracy.” hospital and to investigate the scene of the accident,
there was no time to seek out a magistrate and
It is no wonder, then, that the implied-consent laws secure a warrant. Given these special facts, we
that incentivize prompt BAC testing have been with conclude that the attempt to secure evidence of
us for 65 years and now exist in all 50 States. These blood-alcohol content in this case [without a
laws and the BAC tests they require are tightly warrant] was . . . appropriate . . . .” 384 U. S., at
linked to a regulatory scheme that serves the most 770–771.
pressing of interests.
Thus, exigency exists when (1) BAC evidence is
Finally, when a breath test is unavailable to promote dissipating and (2) some other factor creates
those interests, “a blood draw becomes necessary.” pressing health, safety, or law enforcement needs
Thus, in the case of unconscious drivers, who that would take priority over a warrant application.
cannot blow into a breathalyzer, blood tests are Both conditions are met when a drunk-driving
essential for achieving the compelling interests suspect is unconscious, so Schmerber controls:
described above. With such suspects, too, a warrantless blood draw is
lawful.
Indeed, not only is the link to pressing interests here
tighter; the interests themselves are greater: Drivers In Schmerber, the extra factor giving rise to urgent
who are drunk enough to pass out at the wheel or needs that would only add to the delay caused by a
soon afterward pose a much greater risk. It would warrant application was a car accident; here it is the
be perverse if the more wanton behavior were driver’s unconsciousness. Indeed, unconsciousness
rewarded—if the more harrowing threat were does not just create pressing needs; it is itself a
harder to punish. For these reasons, there clearly is medical emergency. It means that the suspect will
a “compelling need” for a blood test of drunk- have to be rushed to the hospital or similar facility
driving suspects whose condition deprives officials not just for the blood test itself but for urgent
of a reasonable opportunity to conduct a breath test. medical care. Police can reasonably anticipate that
The only question left, under our exigency doctrine, such a driver might require monitoring, positioning,
is whether this compelling need justifies a and support on the way to the hospital; that his
warrantless search because there is, furthermore, blood may be drawn anyway, for diagnostic
“‘no time to secure a warrant.’” purposes, immediately on arrival; and that
immediate medical treatment could delay (or
We held that there was no time to secure a warrant
otherwise distort the results of) a blood draw
before a blood test of a drunk-driving suspect in
Schmerber because the officer there could conducted later, upon receipt of a warrant, thus
“reasonably have believed that he was confronted reducing its evidentiary value. All of that sets this
case apart from the uncomplicated drunk-driving
with an emergency, in which the delay necessary to
scenarios addressed in McNeely. Just as the
obtain a warrant, under the circumstances,
ramifications of a car accident pushed Schmerber
threatened the destruction of evidence.” So even if
the constant dissipation of BAC evidence alone over the line into exigency, so does the condition of
does not create an exigency, Schmerber shows that an unconscious driver bring his blood draw under
the exception. In such a case, as in Schmerber, an
it does so when combined with other pressing
officer could “reasonably have believed that he was
needs:
confronted with an emergency.”
“We are told that [1] the percentage of alcohol in

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