I write today to discuss the United Stated Supreme Court decision in Missouri v McNeely and how Pennsylvania law may be affected by this decision. The court was asked 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. The court concluded that it does not, and held, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.The case facts are the same as those in many of my PA and NJ DUI cases. McNeely, while operating his car on the highway violated several traffic laws, thereby giving the police lawful basis to engage in a traffic stop. During the traffic stop, the officer observed signs of intoxication, detained him for investigation, and, at the station, asked that he take a breath test. McNeely refused. He was then asked to consensually submit to a blood draw. He refused, acknowledging the refusal would be the basis for a separated license suspension. Thereafter, and this is the issue, the police compelled hospital staff to forcibly take his blood (nonconsensual) and then, during the prosecution, sought to use the BAC evidence in the DUI trial against McNeely.McNeely objected saying the nonconsensual blood draw without a warrant was a violation of his fourth amendment rights. The state argued the mere dissipation of alcohol in the blood constituted exigent circumstances to allow a warrantless, forcible blood draw in every DUI. The Missouri trial court disagreed, suppressing the evidence saying the blood draw was an illegal search. The Missouri Supreme Court agreed, finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. United States Supreme Court has also agreed.It has long been the law in the entire country and in Pennsylvania that a non-consensual blood draw may take place based upon a “totality of the circumstances analysis when determining whether an exigency exists to the warrantless blood draw.” The case law “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case” and, exigency depends heavily on the existence of additional “‘special facts,’” such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital.Car accidents, unconscious defendants, questionable basis for intoxication, and other issues are such facts that come into play in a totality of the circumstances analysis. Significantly, in the Commonwealth of Pennsylvania, Rule 203 of the PA Criminal Procedure Rules deals with the entire process and legal standard for the Issuance of a Search Warrant. The Rules states (A) In the discretion of the issuing authority, advanced communication technology may be used to submit a search warrant application and affidavit(s) and to issue a search warrant; and (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits. Pa. R. Crim. P. RULE 203More importantly, the case of Commonwealth v. Shaw, 564 Pa. 617, 770 A.2d 295 (2001), stands for the proposition that Police must obtain a warrant for the release of BAC test results in cases where blood is not drawn pursuant to 75 Pa.C.S.A. § 3755(a) (governing blood draws conducted by emergency room personnel), or if the officer did not request a blood draw based upon probable cause of DUI.Because there is a very specific procedural frame work in the Commonwealth of Pennsylvania dealing with blood draws and DUI evidence, BAC test results secured from a nonconsensual blood draw taken for medical diagnosis purposes versus compelled by police at the scene, the case of McNeely vs. Missouri will have very little affect on Commonwealth of PA DUI prosecutions. Typically, in PA, once there is a refusal, I have never seen a blood draw taken pursuant to police command merely for DUI investigative purposes. In PA, blood draws are taken nonconsensual, for medical purposes, and the police then secure a warrant to test the blood. There are many variations of how, why and when blood is drawn. Please call to discuss your case.