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Judge Throws Out DUI Alcohol Test Due to Rights Not Being Read

Sep 2nd, 2016 Blood Testing

If you are arrested in Michigan for drunk driving, and the police do not read you your implied consent rights, then under the right facts it might be possible to have the alcohol test thrown out.  To understand why, it’s important to first understand Michigan’s implied consent laws.

If you are arrested in Michigan for drunk driving then the police will be requesting that you give them a sample of your breath blood or urine.  Breath testing is the most common alcohol test in Michigan. Because an alcohol test is a search, the Constitution’s Fourth Amendment applies.

In very basic terms, the Fourth Amendment requires a warrant for any sort of search, including in the context of a Michigan drunk driving arrest.  However, there are exceptions to the warrant requirement, and the most common of them is consent.  So if the police ask you for a breath sample voluntarily, and you say “yes,” then there is no reason for the police to obtain a warrant.

The exigent circumstances exception is another possible exception to the warrant requirement.  In the context of a Michigan drunk driving case, the argument is that the alcohol in the blood will be gone before a warrant can be obtained, and therefore there are exigent circumstances that allow a warrantless search.  This exception rarely applies.

Most states, including Michigan, have implied consent laws.  These laws create a legal fiction, which is that by accepting a license to drive in Michigan, you impliedly give your consent to a future breath blood or urine test if you are ever arrested for drunk driving.  Nevertheless, if you say “no,” the police in Michigan will still get warrant and your blood will be drawn.

A very recent United States Supreme Court case addresses what will or at least should happen if no warrant is obtained. The name of this case is Missouri v. McNeely.

A recent Texas case demonstrates the application of McNeely to the suppression of the blood test results.

In this case Appellee was indicted for intoxication assault. He filed a motion to suppress evidence, arguing that the evidence was unlawfully obtained. At the suppression hearing, the evidence showed that on June 13, 2009, Texas Parks and Wildlife Game Wardens Shawn Smith and John Thorne responded to a 911 call concerning a Jet Ski accident. There were several people at the scene, and the game wardens interviewed witnesses. Subsequent to the investigation Warden Smith told Appellee that he needed to accompany them to East Texas Medical Center (ETMC) to provide a mandatory blood specimen for testing. Appellee asked to give a breath sample, and Warden Smith told him that a blood specimen was required. Appellee acquiesced and was placed in Warden Smith’s vehicle. He was not read his constitutional rights or the “DIC 24” statutory warning.

In analyzing the facts of this case, the court acknowledged that the taking of a blood sample is a search and seizure under both the federal and Texas constitutions. However, under certain circumstances, a blood sample taken without a warrant is not an unreasonable search and seizure, and therefore comports with constitutional requirements. Police officers may constitutionally obtain a blood sample without a warrant or consent if they have probable cause, exigent circumstances, and a reasonable method of extraction. The dispute in this case revolves around one specific factor; whether there were exigent circumstances.

The State contends simply that the warrantless taking of the blood specimen was permissible because exigent circumstances existed at the time of the blood draw, namely, the fact that alcohol dissipates rapidly from the bloodstream. The court acknowledged that McNeely allowed warrantless blood draws provided there was evidence of exigent circumstances but held, according to McNeely, that because there was no specific evidence of exigent circumstances in this case, such as evidence that it would take too long to procure a warrant under these circumstances the State failed to show that the warrantless blood draw was supported by exigent circumstances.

If you have been arrested for drunk driving in Michigan, and think your rights may have been violated in some way, then please contact the Barone Defense Firm for your FREE case evaluation.  We will discuss Michigan’s DUI laws with you, including Michigan’s implied consent law.