On April 17, 2013, the U.S. Supreme Court in Missouri v. McNeely ruled that in drunk-driving investigations where Law Enforcement Officers (“LEOs”) can reasonably obtain a warrant before a blood sample can be drawn, the Fourth Amendment mandates they do so.

A.  The Fourth Amendment Protects Against Unreasonable Searches and Seizures

The Fourth Amendment to the U.S. Constitution states it is the “right of the people to be secure in their persons … against unreasonable searches and seizures.”

According to the Court, a warrantless blood draw is reasonable only if it falls within a recognized exception. Unfortunately for LEOs, the mere dissipation of alcohol in the blood stream is not a recognized exception. 

Therefore, LEOs who either: (a) bring a suspected drunk driver to the hospital; or (b) request a blood draw from a patient in emergency room, will need to:

(1)  provide the hospital staff with evidence of a search warrant; or

(2)  provide evidence that an exception to the warrant requirement exists.

B.  What is a Valid Exception to the Warrant Requirement?

According to the Court, a valid exception to the warrant requirement involves in each case the existence of some additional “special facts,” such as:

(1)  the LEO was delayed by the need to investigate an accident and transport an injured suspect to the hospital;  or

(2)  a judge cannot be contacted/reached for a warrant; or

(3)  there is some other life or death situation.

C.  How can a Hospital Comply?

Hospitals must review and revise any “legal blood draw” policies to require:

(1)  that someone in charge of the emergency department request to see (and document the existence of) a warrant for the blood draw; or

(2)  someone in charge of the emergency department speak with a supervisor of the LEO to verify the existence of the “special facts” showing no warrant is needed; and

(3)  the emergency department supervisor contact the risk management/legal services department or outside legal counsel to determine whether the “special facts” qualify for an exception to the Warrant Requirement.

Not complying with the new requirements is not an option. The time is now to review and revise policies and staff structure in the emergency department.