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Monday, January 14, 2013
By Michael Nichols
Categories: Drunk-Driving, OWI
The United States Supreme Court heard oral arguments on January 9th on whether or not police should be allowed to conduct warrantless blood draws of drivers suspected of driving under the influence if the driver refuses to give consent. "The case of Missouri v McNeely involves whether or not a police officer in Missouri needed to seek a warrant before conducting a blood draw of a suspected drunk driver," says OWI-OUIL-OUID attorney Mike Nichols. Nichols adds, "in Michigan the implied consent statute requires that the driver be 1) under arrest and 2) advised that the officer will not have blood drawn without a court order and that the officer may seek such an order. At face value, you would not think that McNeely will directly impact Michigan - but I think it could and it certainly will be bad news if the Supreme Court allows cops to become magistrates with badges."
In Michigan, the Implied Consent Act is found at MCL 257.625c. It requires that the officer have arrested the driver VALIDLY (under cases called People v Keen and People v Borchard-Ruhland). Longstanding legal precedent in Michigan is that a warrantless search, including of a person's body is presumed to be unreasonable. Therefore, judges will typically not allow for blood to be drawn without a warrant. However, Nichols cautions "some judges in Michigan who I encountered believe that a case called Schmerber v California allows a warrantless blood draw in exceptional circumstances and that exceptional circumstances are defined as a drunk driving investigation because of the fact that the blood alcohol content is falling."
Nichols believes that this is a huge misperception. "First, the vast body of medical research shows that individuals will frequently continue to see their blood alcohol content rise immediately after taking their most recent drink. Second, that same research shows that the blood alcohol content will 'plateau' or hold steady. Third, everyone is different and you cannot possibly think that everyone's blood alcohol content will vanish in the short amount of time it takes to seek a warrant. Plus, how stupid do we think juries are on this stuff? Most people understand the concept of rising and falling blood alcohol content." Therefore, if the Supreme Court disallows warrantless blood draws, it should solidify a legal point that apparently still is misapplied by some Michigan judges.
Nichols is an adjunct professor of DUI Law and Practice and Forensic Evidence at Thomas M. Cooley Law School in Lansing, a published author of the West Michigan practice guide on DUI and a chapter on chemical testing and measurement for West. You can reach him at mnichols@nicholslaw.net or 517.432.9000.