Felony DUI – a Blood Draw Requires a Warrant in SC
When police take a blood sample from a felony DUI suspect in SC, the police must first apply for a warrant unless the suspect consents – despite the implications of the recent SC Supreme Court case Hamrick v. State, a blood draw requires a warrant in SC.
In Missouri v. McNeely, decided in 2012, the US Supreme Court held that a warrantless blood draw without a suspect’s consent violates the Fourth Amendment – regardless of state laws that say every driver impliedly consents to provide a blood sample for analysis upon request.
In Hamrick v. State, the SC Supreme Court reversed a felony DUI based on improper testimony by the officer. In the opinion, however, the Court included a brief and potentially misleading discussion of the Fourth Amendment issues involved in a warrantless blood draw.
Although a careful reading by a person who understands the legal principles involved reveals that the SC Supreme Court is not saying a warrant is not needed for a blood draw, I have no doubt that police officers and prosecutors across the state may not read the opinion carefully, or, if they do read it carefully, may attempt to use it to argue to non-attorney magistrates that the SC Supreme Court has held that a warrant is not needed.
Below, I’ll explain the opinion and the legal principles involved –a warrant is still needed for a non-consensual blood draw in SC and the SC Supreme Court did not hold otherwise.
Hamrick v. State – SC Supreme Court Implies that a Warrant is Not Needed
First of all, the Court reversed Hamrick’s conviction for felony DUI based on improper testimony by the officer. Although they did not need to address the Fourth Amendment issues, they did because the same issues will surely arise during Hamrick’s retrial.
The Court found that, despite the officer having taken Hamrick’s blood sample without consent and without a warrant, the blood test results will be admissible at Hamrick’s retrial based on the good faith exception to the exclusionary rule:
Hamrick argued the test results should be suppressed because his blood was drawn without a warrant, in violation of the Fourth Amendment. We find that even if there was a Fourth Amendment violation, the good-faith exception to the exclusionary rule applies, and therefore, the test results will not be suppressed.
There are two reasons the Court could find that a warrant was not necessary – 1) if the suspect consented and 2) if there were exigent circumstances that justified not seeking a warrant. The SC Supreme Court did not find that the suspect consented or that there were exigent circumstances – they found that the officer had a good faith basis for believing that there was consent or exigent circumstances and therefore the test results should not be suppressed.
Because the accident that led to the felony DUI charges happened in 2011, and Missouri v. McNeely, the US Supreme Court case that held a warrantless blood draw is unconstitutional, was decided one year later in 2012…
Is “Implied Consent” Enough to Justify a Warrantless Blood Draw in SC?
The SC Supreme Court implies that SC’s implied consent law is enough to justify a warrantless blood draw:
As to consent, pursuant to South Carolina’s implied consent statute, subsection 56-5-2950(A), Hamrick is deemed by law to have consented to have his blood drawn by virtue of driving a motor vehicle in South Carolina, unless he withdraws his consent as contemplated in subsection 56-5-2950(H).
But their point is not that this is the law in SC – their point is that, in 2011, one year before McNeely was decided by the US Supreme Court, it was reasonable for the officer to believe that implied consent justified a warrantless blood draw:
When the officers made the decision to draw Hamrick’s blood without a warrant, the law appeared to support the existence of exigent circumstances and the validity of statutory implied consent. There is nothing in this record that in any way suggests the officers did not “act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful.”
More importantly, they didn’t even decide the issue:
Therefore, we decline to address whether the exigent circumstances or consent exceptions to the warrant requirement applied on the facts of this case because, even if we found no exception applied, we would find the good faith exception to the exclusionary rule forecloses suppression.
Their holding was that, even if the officer was required to seek a warrant for the blood draw, the evidence would not be suppressed because the officer had a good faith basis to believe that a warrant was not needed…
Missouri v. McNeely – the US Supreme Court is Clear that a Warrant is Needed for a Blood Draw
Although the officer’s conduct in Hamrick was “excused” because he could not possibly have known that the US Supreme Court would, a year later, hold that a warrant was needed, a warrant is still needed for a blood draw in SC in cases that arose after the McNeely decision.
The US Supreme held in McNeely that police must seek a warrant from a magistrate before taking a blood sample from a suspect unless 1) the suspect consents to the blood draw or 2) there are “exigent circumstances” that justify a warrantless blood draw.
What are exigent circumstances?
The Court has held that the determination of whether exigent circumstances justify a warrantless search is based on the “totality of the circumstances” and must be decided on a case-by-case basis. Some examples include:
- Officers’ entry into a home to provide emergency assistance;
- Seizure of a person to prevent them from entering a home where they would destroy evidence; and
- A warrantless search of a suspect’s fingernails to preserve evidence that the suspect was trying to rub off.
The possibility of alcohol in the blood dissipating is not per se an exigent circumstance – the Court was clear about that. Although McNeely left open the possibility that exigent circumstances may justify a warrantless blood draw, it is a determination that will have to be made on a case-by-case basis.
Is Implied Consent Enough to Justify a Warrantless Blood Draw According to McNeely?
In finding that a warrant was needed for a blood draw in the absence of consent or exigent circumstances, the US Supreme Court specifically noted that all 50 states have implied consent laws:
For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 2 (describing Missouri’s implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.
First of all, “implied consent” laws are a legal fiction. I don’t consent to have a needle stuck in my body and to have my blood drawn at the direction of a police officer. I never have, and never will. Yet, I still drive a car…
This legal fiction maintains that you consent to blood or breath tests if you are suspected of DUI, but also that you have the right to withdraw the consent you never gave. If you choose to withdraw the consent that you never gave, you are no longer consenting to the blood draw. Which means the officer must either get a search warrant to take your blood – or – they are violating your Fourth Amendment rights by forcibly taking your blood.
- A warrant is needed for a blood draw if the suspect does not consent and if there are no exigent circumstances.
- SC’s implied consent law is insufficient consent for a warrantless blood draw – you can revoke the implied consent.
- Hamrick did not rule otherwise.
Felony DUI Defense Lawyer in Charleston, SC
Grant B. Smaldone is a SC DUI defense lawyer based in Charleston, SC.
If you have been charged with a crime in state or federal court in SC, call now at (843) 808-2100 or contact us online to talk to a Charleston, SC criminal defense attorney today.