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Warrantless blood draws are unconstitutional unless the suspect consents to the blood test or exigent circumstances would excuse the failure to seek a warrant.
That’s been the law according to the US Supreme Court for some time, although South Carolina’s appellate courts have tried to get around it any way they can (see State v. McCall, for example, where the SC Supreme found that virtually every DUI would consist of exigent circumstances, excusing the need for a search warrant).
In State v. German, decided last week, the SC Supreme Court appeared to acknowledge for the first time that warrantless blood draws are not excused by “exigent circumstances” in every case.
Before forcing a blood draw from an unwilling subject in a suspected felony DUI case, law enforcement must:
US Supreme Court opinions on warrantless blood draws in felony DUI prosecutions, including Missouri v. McNeely, have found that police must get a search warrant before taking a suspect’s blood unless 1) the suspect consents to the blood draw or 2) there are exigent circumstances that would make it impracticable to seek a warrant.
No matter where you find your definition of “consent,” it is going to include a requirement that consent be given freely and voluntarily.
The legislature can say that you consented to give a blood sample:
A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of the person’s breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or the combination of alcohol and drugs, if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
But you did not. I did not. The justices on the SC Supreme Court didn’t, either.
When an officer says, “Can I take a blood sample,” and I say, “No you may not,” that is not consent, and a legislatively imposed requirement in a statute cannot change the constitutional requirement that there be a warrant issued by a neutral magistrate based upon probable cause.
In State v. German, for example:
Looking at “the totality of the circumstances,” German did not freely and voluntarily consent to provide a blood sample, and the officer cannot force the blood draw simply because the SC legislature says every driver consents.
What about exigent circumstances?
We don’t know if the SC Supreme Court would have found exigent circumstances in this case, although it doesn’t look like exigent circumstances existed – particularly when the officer agreed that he could have gotten a warrant but chose not to – because the Court expressly said that they were not deciding the issue because it was not preserved for appeal.
Despite the refreshing constitution-friendly language in State v. German, exigent circumstances remain a bit of a wild card since, in the recent case State v. McCall, the SC Supreme Court suggested that every felony DUI, and possibly every DUI, would present exigent circumstances that justify an officer’s failure to get a warrant.
The SC Supreme Court also found that our implied consent statute is unconstitutional in situations where there is no actual consent or exigent circumstances because it violates the SC Constitution’s explicit right to privacy:
Turning to the instant case, we find the provision in our state constitution is implicated when law enforcement obtains a warrantless blood draw. As the United States Supreme Court recognized in Schmerber v. California, there is a constitutional right to privacy in one’s blood. 384 U.S. 757, 767 (1966)… a blood test’s process certainly is one of the most invasive government searches a suspect may encounter…
Because he ordered the blood draw despite Appellant’s refusal, he violated Appellant’s right to be free from an unreasonable invasion of privacy.
The federal Bill of Rights, including the Fourth Amendment, provides a “baseline” of constitutional protections. The SC Constitution, which includes an explicit right to privacy in Article I, Section 10, provides greater protections to SC citizens.
Breath tests are different, according to the US and SC Supreme Courts. The US Supreme Court, for example, said in Birchfield v. North Dakota, 579 U.S. 438 (2016) that warrantless breath tests, but not blood tests, are permitted as searches incident to arrest under the Fourth
The Court reasoned that a breath test is less intrusive than a blood draw because “a blood draw pierces the skin, takes a sample from the body, and preserves it indefinitely… Breath tests, the Court said, are permissible as searches incident to arrests because they have little physical intrusion, the test only reveals the amount of alcohol in the person’s breath, and participation in the test is unlikely to enhance the arrestee’s embarrassment.”
It’s unclear how a breath test, taking the air from inside a person’s body, is less intrusive than a search of someone’s home, where a search warrant is certainly required in the absence of consent or a Fourth Amendment exception.
What the SC Supreme Court intended by clarifying this in State v. German is also unclear.
As of today, I’m unaware of any case where law enforcement has forcibly obtained a breath sample against a suspect’s will, and prior SC opinions have made it clear that drivers are not required to submit to alcohol or drug testing (see, Sanders v. S.C. Dep’t of Motor Vehicles, 431 S.C. 374, 383, 848 S.E.2d 768, 773 (2020) (citing S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548 (Ct. App. 2005)).
In German, the Court explains that those cases are distinguishable from German and don’t necessarily apply in the context of a criminal prosecution:
…these cases are distinguishable from the case now before this Court because they involved civil penalties, not criminal convictions; they did not address the constitutionality of the statutes; and the decisions appear to be founded on statutory interpretation.
But, is the SC Supreme Court opening the door to the use of forced breath samples in a criminal DUI prosecution without a warrant or consent? It sounds like that is what they are saying.
Could we get a SC Supreme Court opinion just once that does not confuse the issues and that provides clear guidelines for law enforcement, citizens, defense lawyers, and judges to follow?
Although the Court held that German’s blood draw was unconstitutional and should be suppressed, they didn’t suppress it in German’s case because, according to the Court, it was a “good faith” mistake on the part of the officer; therefore, German must remain in prison and her conviction was upheld.
If you have been charged with DUI, DUAC, felony DUI, or a DUI-related offense in SC, contact a DUI defense lawyer on the Axelrod team immediately – we may be able to get your case dismissed, you may be able to avoid a license suspension, and you may have defenses that you are not aware of.
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