Supreme Court’s Ambiguity Costs Josh Brent: Part 1

Josh Brent’s attorney isn’t the only person confused by what the Supreme Court meant in Missouri v. McNeely. DWI lawyers across the country are trying to decipher the Court’s recent decision.

Josh Brent, the former Dallas Cowboy accused of intoxication manslaughter, unsuccessfully sought to get the results of a blood draw from the night of the accident thrown out. His argument? The police should have obtained a warrant because he did not grant them consent to take his blood, a violation of his Constitutional right against unreasonable searches. Had his argument succeeded this would have landed Brent in the not guilty by reason of technicality category, but District Judge Robert Burns III didn’t buy it.

Brent’s argument is based on a recent Supreme Court case, Missouri v. McNeely, which held that the metabolization of alcohol does not constitute a per se exigency that justifies an exception to the Fourth Amendment’s protection against unreasonable searches. Translation: If police want to draw someone’s blood because they suspect that person is driving while intoxicated, they have to follow the process and secure a warrant. Of course, the law doesn’t mandate that officers secure a warrant any time they search anything. Instead, the law has established a few exceptions to the general warrant requirement. One exception is easy: consent. If you give the cops permission, they can search your car, blood, house, whatever. The exception at issue in Brett’s case is called the exigent circumstances exception.

Say police come to a house, and they can hear someone screaming for help inside. Those cops don’t have to wait for the lengthy process of securing a warrant if (1) they have probable cause to believe a crime is taking place, has taken place, or is about to take place and (2) exigent circumstances (meaning time sensitive circumstances) make it impractical to obtain a warrant. In other words, cops don’t have to wait outside a house if they have very good reason to believe someone is dying inside. Exigent circumstances also include situations in which cops need to hurry to preserve evidence. That makes sense. Some states, cough Missouri cough, were abusing this exception. They claimed that because alcohol naturally metabolizes and dissipates from the body it constituted evidence that might be destroyed, i.e. an exigency. Therefore, they claimed, they could take blood without a warrant under the Exigency warrantless search exception. The Supreme Court did not agree.

The dissipation of alcohol does not constitute a per se (meaning an automatic or as a matter of law) exigency. Instead, exigency is determined by the “totality of the circumstances” or anything and everything that might be relevant. So if the police suspect someone of driving drunk and that person does not consent to a blood draw, the cops must secure a warrant to draw his blood right? Well not exactly. There could be several factors making it very impractical to obtain a warrant before the evidence is destroyed (the alcohol dissipates), such as the shear volume of warrant requests. In other words, if a warrantless blood draw is challenged in court, the state has to prove that there were exigent circumstances that justified the warrantless search. They can’t just say, “the alcohol was dissipating so we had to hurry!” Instead, they must show several facts, which together justified the exigency.

So Josh Brent had his blood drawn without a warrant. Why didn’t his blood results get thrown out? Stay tuned next time as we delve deeper into the language of Missouri v. McNeely and discover what the Court said (or didn’t say) that basically rendered the whole decision meaningless.