Georgia DUI Cases of Note


MISSOURI V. MCNEELY - 11-1425 - PART I: Supreme Court to Rule on Warrantless Blood Draws in DUI Cases

Monday, October 22, 2012

Soon the United States Supreme Court will rule on Missouri v. McNeely, a case which will decide if warrantless blood draws for drivers suspected of DUI are constitutional. Extensive analysis is already available, so we'll stick to parsing out the precedent and applying it to the facts of the case.

At issue in this appeal is the balance of interests required by the Fourth Amendment: society's desire to prevent harm - here the harm caused by drunk driving – and the right of a person to be free of unreasonable search and seizures, Cit. Regarding blood draws, the Supreme Court addressed this issue in Schmerber v. California (1966). In Scherber the Supreme Court ruled that, since alcohol dissipates in the blood-stream, if an officer was presented with a set of circumstances that led to a reasonable delay in obtaining a warrant for blood draw, a warrant was unnecessary. The exigent circumstances cited in Schmerber generally include some combination of investigating the scene of an accident, recording witness statements, or assessing the health of the driver(s) in question and transporting them to the hospital. The logic being that a set of “special facts” that may cause delay in obtaining a warrant, combined with the fact that alcohol dissipates in the blood stream, allows for a warrantless blood draw.

In McNeely, the State argues that despite the requirements of Schmerber, since the basis by which that rationale was reached – the alcohol dissipates in the blood stream – that this fact alone creates a “single-factor exigent circumstance,” Minnesota v. Netland (2009). Some other jurisdictions have chosen such an interpretation, though many – Utah v. Rodrigeuz (2007), Iowa v. Johnson (2008), United States v. Chapel (1995) – have adopted the requirements of Schmerber.

The facts of McNeely are clear. There were no exigent circumstances out of the ordinary from a regular DUI stop. The Defendant was stopped for speeding. His eyes were bloodshot, his speech slurred, and the officer smelled the odor of alcohol emitting from the defendant's vehicle. After field sobriety tests, McNeely was arrested. He refused a breath test, after which the arresting officer directed a phlebotomist to draw the his blood. Schmerber clearly requires exigent circumstances beyond alcohol's natural dissipation in the blood stream and even warns against such an expansive interpretation, Cit. The question is not whether McNeely falls under the precedent of Schmerber, but if the Supreme Court will decide to directly overrule the precedent established by Schmerber. In Missouri v. McNeely Part II we'll report on the ruling.




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    George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from and a 10.0/10.0 Superb rating on  With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt.
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