PER SE OR NOT PER SE THAT IS THE QUESTION: PROVIDING A COMPREHENSIVE INTERPRETATION OF SCHMERBER V. CALIFORNIA THROUGH RECENT STATE COURT OPINIONS

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1 PER SE OR NOT PER SE THAT IS THE QUESTION: PROVIDING A COMPREHENSIVE INTERPRETATION OF SCHMERBER V. CALIFORNIA THROUGH RECENT STATE COURT OPINIONS Written by Brandon Mika JD/MBA Student Thomas Jefferson School of Law/San Diego State University Spring, 2012 ABSTRACT The purpose of this Note is to explore whether officers should be allowed to administer a blood test to a DUI suspect without a warrant due to the dissipation of alcohol from the blood stream. This Note will inform the reader of the Constitutional implications involved. Additionally, it will examine the history of the issue and compare two recent state cases finding in opposition to one another and determine which decision best balances society s interest in preventing drinking and driving and the individual s right to constitutional protections. Finally, this Note will propose a solution for states to follow. A blood test has been classified as a search and therefore a warrant is required under the Fourth Amendment. One exception to the warrant requirement occurs when exigent circumstances are present. Schmerber v. California found that dissipation of alcohol from the blood stream created an exigent circumstance that could potentially excuse officers from having to obtain a warrant. However, the language was unclear as to whether dissipation is a per se exigent circumstance or whether other circumstances created the exigency. In light of technological and legislative advancements, state should employ a totality of the circumstances test before permitting a warrantless blood withdrawal. Electronic warrants can be obtained in minutes. Additionally, retrograde extrapolation provides a method to calculate an individual s BAC at the time of arrest when they test just under the legal limit and time was spent procuring a warrant. Finally, implied consent statutes provide for administrative punishments if a warrant cannot be acquired and an individual refuses a chemical test. Therefore, a warrantless blood draw should only be used as a last resort for repeat offenders or suspects whose licenses have already been suspended through implied consent laws in order to provide justice when a warrant cannot reasonably be obtained. 1

2 INTRODUCTION Drinking and driving is an epidemic that plagues our society. One in every three people will be involved in an alcohol related accident before they die. 1 In 2005, 39% of all traffic fatalities were attributed to alcohol. 2 With alarming statistics such as these, it is no mystery why many states afford police officers significant leeway in gathering evidence in drinking and driving cases. 3 The primary way for a state to obtain evidence is through chemical testing of the breath, blood or urine of a suspect in order to determine his or her blood alcohol content (BAC). 4 However, for nearly half a century, courts have struggled with the application of Fourth Amendment protections in driving under the influence (DUI) cases as to whether a warrantless blood draw is constitutional after an individual has been arrested based on clear probable cause, due to the evanescent nature of alcohol in the blood stream. 5 In attempting to find the proper balance of an individual s constitutional protections and society s interest in preventing drinking and driving, police officers should only be permitted to conduct a warrantless chemical test subsequent to an arrest when under a totality of the circumstances, it would be impossible to obtain a warrant in a timely fashion. 6 Although alcohol dissipates at a rapid rate, advancements in technology and legislation since the landmark case of 1 NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, (last visited Apr. 28, 2012). 2 Traffic Safety Facts 2005 Data, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, 1(2005), s/ pdf. 3 See, e.g. State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227 P.3d 729 (Or. 2010); State v. Shriner, 751 N.W.2d 538 (Minn. 2008). 4 Debra T. Landis, Request Before Submitting to Chemical Sobriety Test to Communicate with Counsel as a Refusal to Take Test, 97 A.L.R.3d 852 n.2 (1980) (defining a chemical test as an analysis of the breath, blood, or urine to determine the amount of alcohol in the person s body). 5 Compare Schmerber v. California, 384 U.S. 757 (1966) (deciding as a matter of first impression in 1966 whether the dissipation of alcohol constitutes an exigent circumstance due to its evanescent nature) with State v. McNeely, 358 S.W.3d 65 (Mo. 2012) (determining in 2012 whether the dissipation of alcohol is an exigent circumstance per se by interpreting Schmerber). 6 State v. McNeely, 358 S.W.3d 65, 67, 74 (Mo. 2012) (stating that the court recognizes society s competing interests and later goes on to hold that a totality of the circumstances test should be employed by police officers before permitting a warrantless chemical test to determine a suspect s BAC). 2

3 Schmerber v. California provide adequate measures of deterrence without significantly infringing on one s constitutional protections, thus making a warrantless blood withdraw an unnecessary intrusion in many instances. 7 In the future, states considering legislation or reviewing precedent cases should impose a totality of the circumstances checklist for officers to follow with a warrantless blood draw as the last option. Courts have determined that subjecting a person to chemical testing constitutes a search of the person s body. 8 Thus, chemical testing has been afforded the same constitutional protections as any other search. 9 Under the Fourth Amendment of the United States Constitution, a police officer must first obtain a search warrant before conducting a search, unless an exception to the warrant requirement applies. 10 One exception permitting an officer to perform a warrantless search exists when there are exigent circumstances present. 11 Exigent circumstances include instances such as when lives are being threatened or evidence is about to be destroyed. 12 Studies show that alcohol dissipates at a rapid rate in relation to many other substances that are commonly tested for, such as narcotics. 13 As a result, courts have the arduous task of determining whether the dissipation of alcohol is, per se, an exigent circumstance due to the potential destruction of evidence, or 7 See infra Part II.B. 8 Schmerber, 384 U.S. at 767 ( [Chemical testing] plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. ). 9 Id. 10 U.S. CONST. amend. IV. 11 Id. 12 Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (holding that exigent circumstances justified a warrantless search to prevent the destruction of evidence so long as the officers did not create the exigent circumstance). 13 OHS HEALTH AND SAFETY SERVICES, INC., (last visited Mar. 17, 2012) [hereinafter OHS]. 3

4 whether police officers should employ a totality of the circumstances test in each situation to determine if the time spent to procure a warrant would lead to the destruction of evidence. 14 The issue of alcohol dissipation as an exigent circumstance was first examined in the landmark case of Schmerber v. California. 15 Although that court found that the dissipation of alcohol constituted an exigent circumstance, states have not been able to decipher from the language of the opinion whether the court intended for dissipation to be an exigent circumstance in every situation, or whether the evanescent nature of alcohol in addition to other factors created the exigent circumstance. 16 Part I of this Note provides a brief understanding of the Fourth Amendment and exigent circumstances, as well as the science behind alcohol dissipation. Part I also provides the background for the debate by examining the United States Supreme Court precedent decisions and their current application by the states, which is illustrated by State v. McNeely and State v. Bohling, two recent state supreme court decisions that interpret the precedent in opposition to one another. Part II analyzes each state court s opinion in order to determine which approach provides the proper balance of society s interest in preventing drinking and driving and the right of the people to be free from illegal searches and seizures. Finally, part III proposes that states only use a warrantless blood withdrawal when circumstances make it impossible to obtain a 14 If the dissipation of alcohol from the blood stream is determined to be an exigent circumstance per se, then the evanescent nature of alcohol alone is sufficient to bypass the warrant requirement. However, if a totality of the circumstance test is employed, then the police officer must objectively determine whether circumstances make it impossible to obtain a warrant prior to the destruction of evidence. See State v. McNeely, 358 S.W.3d 65, 70 (Mo. 2012). 15 Schmerber v. California, 384 U.S. 757 (1966). 16 See McNeely, 358 S.W.3d at 74; see also State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) ( Schmerber can be read in either of two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient exigency for a warrantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving related violation or crime-as opposed to taking a blood sample for other reasons, such as to determine blood type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw. ). 4

5 warrant in a timely fashion and the accused is either driving on a suspended license or a second or third strike offender. I. SCIENTIFIC BACKGROUND AND PRECEDENT DECISIONS IMPACTING WARRANTLESS BLOOD WITHDRAWALS Since the introduction of chemical testing, courts have had to examine what constitutional protections people ought to receive for chemical tests in drinking and driving cases. 17 Today, courts continue to examine this issue throughout the country. 18 A. The Science Behind Alcohol Dissipation In order to fully understand some of the courts reasoning regarding alcohol dissipation as an exigent circumstance, it is first important to understand the science behind alcohol dissipation. The first breathalyzer test was invented by Dr. Rolla N. Harger in 1931 by having people blow into a balloon. 19 His concept revolutionized chemical testing. 20 Since that time, alcohol determinations have become one of the most commonly performed forensic procedures. 21 Once alcohol is consumed, it is absorbed in the blood and travels throughout the body. 22 Because it appears in every bodily fluid, all types of chemical tests are able to discover the presence and level of alcohol in the blood stream. 23 Currently, the most effective and accurate chemical test is the blood sample. 24 Alcohol is estimated to be completely absorbed approximately thirty to ninety minutes after the last beverage was consumed. 25 However, the 17 Breithaupt v. Abram, 352 U.S. 432, 434 (1957) (deciding as a matter of first impression the constitutional protections that should be afforded to chemical testing). 18 See, e.g., McNeely, 358 S.W.3d at Rolla N. Harger Dies; Invented Drunkometer, N.Y. TIMES, Aug. 10, 1983, available at 20 See id. 21 EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING CASES 12:1 (2011) 22 Jennifer L. Pariser, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 N.Y.L. SCH. L. REV. 141, (1989). 23 Id. at Id. 25 John E. Wherry Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 AM. J. TRIAL ADVOC. 503, 516 (1996). 5

6 absorption rate may be influenced by numerous factors including food consumption, the speed at which the alcohol is consumed, and the alcohol content of the drink. 26 Once the alcohol is completely absorbed, it will begin to dissipate at a rate of approximately.015% per hour until it has completely exited the blood stream. 27 Alcohol has a faster dissipation rate than many other banned substances. 28 Alcohol will generally be out of the blood stream in a matter of hours, whereas the dissipation rate for drugs such as cocaine is considerably longer. 29 Because of the evanescent nature of alcohol, law enforcement officials have found it necessary to obtain the evidence as quickly as possible, even if it means doing so without a search warrant. 30 B. The Fourth Amendment and Exigent Circumstance Exception The Fourth Amendment of the United States Constitution protects: [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 31 As indicated by the language of the amendment, there generally must be a valid search warrant to conduct a search, except in some special situations. 32 The exigent circumstances exception to the warrant requirement permits a warrantless search when lives are threatened, a suspect s escape is imminent, or evidence is about to be destroyed. 33 Once it was established that chemical 26 Id. at State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that.015% per hour is the approximate dissipation rate); Wherry, supra note 25, at OHS, supra note State v. Jones, 895 P.2d 643, 644 (Nev. 1995) ( Further, the dissipation rate for cocaine and its metabolites appears significantly slower than the dissipation rate for alcohol. ); OHS, supra note 13 (providing that the dissipation rate of cocaine is approximately 1-2 days). 30 See, e.g., Schmerber v. California, 384 U.S. 757, (1966) (determining whether the officer was justified in a warrantless blood draw due to the evanescent nature of alcohol). 31 U.S. CONST. amend. IV. 32 United States v. Lovenguth, 514 F.2d 96, 99 (9th Cir. 1975) (finding that a warrantless search of the defendant s truck was justified based on probable cause). 33 United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). 6

7 testing was protected as a search under the Fourth Amendment, courts were faced with the task of determining whether the dissipation itself constituted an exigent circumstance. C. Breithaupt v. Abram The United States Supreme Court first looked at the admissibility of blood tests and the protections that suspects ought to receive in DUI cases in Breithaupt v. Abram. 34 There, the defendant was seriously injured when he collided with another car, killing three people. 35 At the scene, officers discovered a whiskey bottle in the defendant s glove compartment. 36 The officers then withdrew a blood sample from the defendant without his consent while he was unconscious in the hospital. 37 The New Mexico state court used the evidence to charge and convict the defendant of involuntary manslaughter. 38 The defendant filed a petition for a writ of habeas corpus with the Supreme Court of New Mexico, claiming the nonconsensual blood test amounted to an illegal search and seizure among other various constitutional violations. 39 The Supreme Court of New Mexico denied the writ, but the United States Supreme Court granted certiorari. 40 The Supreme Court ultimately rejected the defendant s contention, determining that the blood test was admissible to show his level of intoxication without offending his constitutional rights. 41 The court based its ruling on New Mexico law, which did not follow the exclusionary rule. 42 As 34 Breithaupt v. Abram, 352 U.S. 432 (1957). 35 Id. at Id. 37 Id. 38 Id. 39 Id. at Id. at Id. at The exclusionary rule provides that evidence secured in violation of one s constitutional rights should be excluded as evidence. Id. at 434. New Mexico declined to follow the exclusionary rule based on Wolf v. People of the State of Colorado, 338 U.S. 25 (1949), which held that it was unnecessary to exclude evidence in the prosecution of state crimes when the evidence was taken in violation of one s Fourth Amendment rights. Id. The holding in Wolf was overturned prior to Schmerber. Schmerber v. California, 384 U.S. 757, 767 (1966). 7

8 a result, the court failed to recognize the defendant s constitutional contentions. 43 Although unsuccessful, his claim paved the way for Schmerber v. California. D. Schmerber v. California The heart of this debate centers around the landmark case of Schmerber v. California. 44 The defendant, Armando Schmerber, was taken to the hospital after being involved in a traffic accident. 45 After officers had an opportunity to investigate the scene, the defendant was arrested while being treated for his injuries. 46 The officers asked the defendant to consent to have his blood drawn by a physician. 47 Despite the defendant s refusal, the blood was withdrawn. 48 The results indicated that the defendant was intoxicated. 49 The blood test was admitted into evidence and Schmerber was convicted of DUI. 50 The defendant appealed the ruling, contending that his constitutional rights were violated, including the right to be free from illegal searches and seizures. 51 In determining whether the defendant s constitutional rights had in fact been violated, the court found that the case plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. 52 The court established that blood tests should be afforded the same constitutional protections as any other search. 53 The court then examined whether the warrantless search violated the defendant s constitutional rights. Although the defendant s appearance and odor clearly established probable cause for an arrest, as well as the need to 43 Breithaupt, 352 U.S. at Schmerber v. California, 384 U.S. 757 (1966). 45 Id. at Id. 47 Id. 48 Id. at Id. 50 Id. 51 Id. 52 Id. at Id. 8

9 conduct a chemical test according to the court, the question remained whether the officer was justified under the exigent circumstance exception to the Fourth Amendment in determining the need for chemical testing without first procuring a warrant. 54 In deciding whether the dissipation of alcohol amounted to an exigent circumstance under the destruction of evidence, the court stated: The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence (citation omitted). We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. 55 States are split about the reasoning of Schmerber. 56 The two common interpretations are that the court either intended for dissipation to be a per se exigent circumstance, or that the special facts present in that particular situation created the exigency, thereby establishing a totality of the circumstances approach. 57 The following state supreme court cases provide examples of the two common interpretations of Schmerber. E. State v. Bohling (Dissipation as a Per Se Exigent Circumstance) State v. Bohling provides an example of a jurisdiction that has adopted a per se approach to the dissipation of alcohol as an exigent circumstance. 58 There, a police officer was dispatched 54 Id. at Id. at Compare State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Rodriguez, 156 P.3d 771 (Utah 2007); State v. Johnson, 744 N.W.2d 340 (Iowa 2008), with State v. Bohling, 494 N.W.2d 399 (Wis. 1993); State v. Machuca, 227 P.3d 729 (Or. 2010); State v. Shriner, 751 N.W.2d 538 (Minn. 2008). 57 Compare State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (interpreting Schmerber to apply a per se exigency factor for dissipation), with State v. McNeely, 358 S.W.3d 65, 70 (Mo. 2012) (interpreting Schmerber to mean that dissipation must be viewed in light of all of the circumstances involved). 58 Bohling, 494 N.W.2d at

10 to investigate an accident. 59 Upon arriving at the scene, he discovered the defendant, David Bohling, who portrayed all the signs of intoxication, including bloodshot eyes and the odor of alcohol on his breath. 60 The officer arrested the defendant and brought him to the station where he refused to take a breathalyzer test. 61 The officer informed him that he would have to draw his blood in accordance with Wisconsin laws and force would be used if he refused. 62 Bohling was then transported to the local hospital and given a blood test without a warrant, despite his refusal to sign the consent form. 63 In reaching its holding, the court attempted to analyze Schmerber. 64 The court explicitly recognized that Schmerber can be read one of two ways: either that the rapid dissipation alone is a sufficient exigent circumstance, or that the rapid dissipation in addition to some other lapse in time, such as other delays from events like the accident or hospitalization of the suspect, creates the exigent circumstance. 65 The court determined that the first interpretation is more reasonable, thereby establishing a per se approach to dissipation as an exigent circumstance. 66 They reasoned that the special facts present in Schmerber occur regularly in DUI cases so the exigency was caused by the dissipation itself and not any unique circumstances. 67 Additionally, the court reasoned that other state and federal decisions follow this approach. 68 Multiple state courts have already adopted a per se approach, and Skinner v. Railway Labor Executives Association has recognized that a 59 Id. at Id. 61 Id. 62 Id. Wisconsin permits the use of reasonable force to obtain a blood sample. See State v. Krause, 484 N.W.2d 347, 351 (Wis. Ct. App. 1992). 63 Bohling, 494 N.W.2d at Id. at Id. at Id. 67 Id. (stating that the circumstances present in Schmerber delaying the officers from withdrawing the defendant s blood are common in most every DUI case so the court in Schmerber was not reasoning that the circumstances created the exigent circumstance, but instead that the dissipation of alcohol alone created it). 68 Id. 10

11 warrant requirement is relaxed when the activity poses a serious public risk. 69 Finally, the court determined that a per se rule strikes the proper balance between an individual s right to be free from illegal searches and Wisconsin s enforcement of its drunk driving laws. 70 F. State v. McNeely (Totality of the Circumstances Test) State v. McNeely provides a recent example of a jurisdiction voicing their dissatisfaction with a per se approach and instead adopting a totality of the circumstances test in order to determine whether a warrantless blood draw is justified. 71 The defendant, Tyler McNeely, was stopped by a highway patrolman as a routine traffic stop for speeding. 72 The officer placed McNeely under arrest for displaying signs of intoxication, such as slurred speech and the smell of alcohol on his breath. 73 After the defendant refused a breathalyzer test, the officer drove him to the local hospital to obtain a blood sample. 74 The defendant refused to consent to the blood draw, but it was taken nonetheless. 75 The issue before the court was whether the dissipation of the alcohol alone is an exigent circumstance. 76 Once again, the court attempted to interpret Schmerber. In reaching a decision, the court relied on other jurisdictions prior interpretations, as well as their own insight. 77 The presiding justices actually voiced their disagreement with Bohling in the opinion: [Bohling] reasoned that the exigency in Schmerber was caused solely by the fact that alcohol dissipates in a person's blood stream over time. Bohling held that a warrantless blood draw is permitted when a person is lawfully arrested for a drunken-driving related crime and there is a clear indication that the evidence 69 Id. at Id. at State v. McNeely, 358 S.W.3d 65 (Mo. 2012). 72 Id. at Id. at Id. 75 Id. 76 Id. 77 Id.at

12 obtained will produce evidence of intoxication This court cannot agree with th[is] interpretation of Schmerber. 78 As a result, McNeely determined that the court must adopt a totality of the circumstances test, in which the officer must objectively determine whether special circumstances exist where the evidence has a significant risk of being destroyed. 79 The questions still remains as to which approach strikes the proper balance between society s interest in preventing drinking and driving and an individual s right to be free from illegal searches. II. INTERPRETING SCHMERBER FORTY-SIX YEARS AFTER THE INITIAL DECISION Forty-six years after the decision in Schmerber, cases such as Bohling and McNeely highlight the difficulty states are still having in interpreting the court s reasoning. 80 The vague analysis of Schmerber makes it difficult to decipher whether the court intended for the special circumstances surrounding the incident to create an exigent circumstance, or whether the circumstances described in the case are common in most every DUI case so that the evanescent nature of alcohol creates an exigent circumstance per se. 81 Because the Supreme Court has not reexamined the issue in the forty-six years since the initial decision, it has been left to the states to make a determination. In light of legislative and technological changes since Schmerber, a totality of the circumstances test, similar to the one adopted in McNeely, will provide the best balance of societal interests and individuals constitutional rights in contemporary society. A. Balancing Society s Interest in Preventing Drinking and Driving with an Individual s Constitutional Protections Before reaching a decision, courts will often consider policy implications. In DUI cases dealing with chemical testing, the state has a strong interest in enforcing its DUI laws to protect 78 Id. at Id. at See, e.g., McNeely, 358 S.W.3d at 65; State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 81 Schmerber v. California, 384 U.S. 757, (1966). 12

13 its citizens. 82 On the other hand, an individual also has the right to be free from illegal searches and seizures. 83 Finding the proper balance is a difficult task for any judge. 84 Additionally, as times change, the balancing of these factors might change. 85 Since the 1966 decision in Schmerber, changes in legislation and technology have provided states with the ability to properly enforce their DUI laws without infringing on one s constitutional protections through a warrantless search, thereby furthering a totality of the circumstances approach. B. Advancements Since Schmerber Affecting the Balance of Societal and Individual Interests Since Schmerber was decided in 1966, states have employed various strategies to prevent drunk driving. 86 The following are a few of the changes since Schmerber that when used together prevent the need for a per se rule for dissipation as an exigent circumstance. 1. Technological Advancements Advances in technology, such as the telephonic or electronic warrant, provide police officers with the ability to avoid the possible destruction of evidence through more efficient measures. Telephonic warrants were first adopted by the Federal Rules of Criminal Procedure in Over the past thirty-five years, almost every jurisdiction has adopted some form of the telephonic warrant so that they may be provided expeditiously for cases such as these when time is of the essence. 88 So long as the Fourth Amendment requirements are met, the warrant will be 82 Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at Bohling, 494 N.W.2d at 405; McNeely, 358 S.W.3d at See, e.g., Bohling, 494 N.W.2d at 405(illustrating the varying interests that a judge must consider in reaching a decision); McNeely, 358 S.W.3d at The introduction of the electronic warrant and other advances post Schmerber have lessened the necessity of protecting the public with a per se approach. 86 Since Schmerber was decided, electronic warrants, retrograde extrapolation, and implied consent laws have become commonly used to prevent drinking and driving. 87 Wherry, supra note 25, at See WIS. STAT. ANN (West 2011); MO. REV. STAT (2011); UTAH CODE ANN (West 2011). 13

14 issued electronically. 89 Twenty-five years ago, courts determined that ninety minutes was a sufficient amount of time for a telephonic warrant to be issued. 90 However, technological advancements have continued to make the process more efficient. For example, in 1998, an Arizona court determined from testimony by the Mesa police station that an electronic warrant could be obtained in as little as fifteen minutes, with the average time not exceeding one hour. 91 Today, counties are beginning to issue electronic warrants or e-warrants through the use of smart phones or tablet devices. 92 In Douglas County, Kansas, all five county judges read and sign warrants on ipads. 93 They can submit the warrant in less than an hour, which even includes their signature and is thus no different than a paper warrant. 94 The use of ipads for issuing electronic search warrants in Douglas County was specifically utilized for DUI cases. 95 With the dissipation rate of alcohol being estimated to be.015% BAC per hour, the chance of someone exceeding.08% BAC at the time of the arrest and falling under the legal limit in less than an hour is rare Retrograde Extrapolation Even if someone tests just under the legal limit a short time after being formally arrested, there is still a method of determining the suspect s BAC at the time of arrest. Retrograde extrapolation is a mathematical process used to calculate one s BAC at the time the 89 State v. Rodriguez, 156 P.3d 771, 778 (Utah 2007) ( The warrant must be upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ). 90 Wherry, supra note 25, at 523 (citing United States v. Alvarez, 810 F.2d 879, 883 (9th Cir. 1987). 91 State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 92 Bill Robinson, Electronic Warrants Speed Law Enforcement, THE RICHMOND REGISTER (Dec. 1, 2011), 93 George Diepenbrock, With ipads, Judges in Touch any Time, any Place, LJWORLD.COM (February 5, 2012, 11:17 PM) 94 Id.; To view a sample electronic affidavit and search warrant, see No-Refusal Sample, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, (last visited April 29, 2012). 95 Diepenbrock, supra note State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that this is the approximate dissipation rate); Wherry, supra note 25, at

15 suspect was operating a motor vehicle by using the information obtained from the chemical test and relating it back to the time the individual was driving. 97 Courts have disagreed whether to allow the evidence to be used at trial by the prosecution in order to obtain a conviction. 98 It is imperative to have an expert familiar with the process provide the testimony in order for a court to find it admissible. 99 Any expert hired to testify should also have knowledge of individual characteristics of the defendant that would impact the calculation, such as the defendant s age, weight, food consumption, and the time lapse between drinking and driving, or any other factor that could influence the absorption rate. 100 Because of the many factors that can affect retrograde extrapolation, it should be used sparingly as evidence used to obtain a conviction. 101 However, so long as the courts enforce that any expert called to testify have considerable knowledge of the facts of the case, especially the time lapse between drinking and driving and the defendant s personal characteristics, retrograde extrapolation can be used effectively. This Note proposes that retrograde extrapolation only be used for short term calculations when suspects test just under the legal limit and the necessary details are known to the expert, in order to determine if the time spent getting a warrant impacted their BAC. Critics argue that retrograde extrapolation is not a precise calculation due to all of the influential factors and therefore, should not be used as admissible evidence. 102 However, courts have determined that 97 Jim Fraiser, Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions, 119 A.L.R.5th 379 (2004). 98 Id. 99 Id. 100 Id. 101 Id. 102 Critics of retrograde extrapolation argue that it is difficult to calculate an individual s BAC back to a previous point in time because so many factors influence the absorption rate of alcohol. When an individual consumes a drink, the alcohol absorbs into the blood stream. As the alcohol absorbs, his or her BAC rises until it is completely absorbed, at which point, he or she reaches a peak BAC. After the peak is reached, the alcohol slowly begins to dissipate. Critics of retrograde extrapolation argue that it is difficult to determine how long after consuming the last 15

16 the calculation is based on a scientific method and may be admissible to calculate one s BAC for as long as fifteen hours prior to chemical testing. 103 Because it should take no longer than one hour to obtain an electronic warrant as previously determined, 104 one s BAC should only dissipate.015% The number of cases in which a suspect s BAC lowers to a legal level during the time to get a warrant therefore should be minimal. Nevertheless, retrograde extrapolation is an available method for courts to consider so that critics of electronic warrants do not contend that an hour is too long to wait, even if it means protecting an individual from a warrantless search. 3. Implied Consent Statutes The last critical change since Schmerber is the widespread use of implied consent laws to impose civil punishments on individuals who refuse to submit to chemical testing. 106 A typical implied consent statute states that if an individual is using public roads, he or she is impliedly consenting to a chemical test. 107 All or virtually all states have some form of the implied consent statute in place. 108 Even the federal government has an implied consent statute for maritime and territorial jurisdictions. 109 If the individual still refuses to consent to a chemical test after being properly instructed as to the implied consent statute, the individual will usually be subject to drink that an individual will reach his or her peak BAC. As a result, the suspect may be at his peak during a chemical test, resulting in a higher BAC than when he was driving. For more information about the potential pitfalls of retrograde extrapolation and examples of BAC curves, see EDWARD L. FIANDACH, 1 HANDLING DRUNK DRIVING CASES 10:13 (2011). 103 Smith v. City of Tuscalossa, 601 So.2d 1136, (Ala. Crim. App. 1992) (finding the retrograde extrapolation testimony admissible for determining the suspect s BAC level 15 hours prior to when the chemical testing occurred). 104 State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 105 State v. Machuca, 227 P.3d 729, 731 (Or. 2010) (stating that experts testified that.015% per hour is the approximate dissipation rate). 106 See Murphy v. Director of Revenue, 170 S.W.3d 507, 511 (Mo. Ct. App. 2005) ( Our legislature responded to Schmerber by its enactment, like many other states, of an implied consent statute. ). 107 JAMES BUCHWALTER, ET AL., 8 AM. JUR. 2D AUTOMOBILES 991 (2012). 108 Anable v. Ford, 653 F.Supp. 22, 35 (W.D. Ark. 1985) ( [M]ost if not all states have enacted statutes which provide implied consent to such tests by motor vehicle operators. ). 109 U.S.C.A (West 2012). 16

17 administrative punishments, such as the revocation of his or her license, but he or she will usually not be forced to submit to a chemical test so that the individual s constitutional rights are not violated. 110 Courts reviewing implied consent statutes have held administrative punishments to be constitutional as a result of Schmerber. 111 Implied consent statutes have proven to be an effective form of punishment. 112 Because individuals must be informed of their rights in most jurisdictions prior to submitting to a chemical test if it is to be admissible, they can make an informed decision whether they wish to submit to the test or face administrative punishments should they refuse. 113 Additionally, the right to revoke one s license or impound his or her car serves as a deterrent without infringing upon an individual s Fourth Amendment rights. 114 Implied consent statutes begin to lose their effectiveness however once constitutional rights become involved. In Oregon, it is illegal to refuse to submit to a chemical test. 115 The simple act of refusing may be used to convict a person of DUI. 116 Implied consent statutes should be viewed as an alternative means of punishment through civil penalties that will deter drinking and driving without infringing on one s Constitutional protections. 110 BUCKWALTER, supra note Murphy v. Director of Revenue, 170 S.W.3d 507, (Mo. Ct. App. 2005). 112 BUCKWALTER, supra note Id. 114 A Guide to Sentencing DWI Offenders, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION AND NATIONAL INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM, 20 (2005), (providing statistics which show that administrative punishments, such as impounding or immobilizing the arrestee s vehicle, reduces recidivism by 40-70% and a license revocation for a first time offender lowers alcohol related fatalities by 6-19% ) [hereinafter Sentencing]. 115 State v. Machuca, 227 P.3d 729, 737 (Or. 2010). 116 OR. REV. STAT (2012). 17

18 C. Comparing Bohling s and McNeely s Interpretation of Schmerber in Light of the Foregoing Advancements Bohling and McNeely are two state supreme court cases decided in the past twenty years, which highlight the opposing viewpoints of this debate. 117 Both cases were decided after the introduction of the electronic warrant, retrograde extrapolation, and implied consent laws, making them capable of comparison in determining which approach best serves society. 118 Additionally, the opinion in McNeely directly attacks Bohling s interpretation of Schmerber, and their adoption of a per se exigency approach to dissipation. 119 In attempting to compare these cases, it becomes evident that the recent advancements have established that a totality of the circumstances test strikes the best balance of society s interest in deterring drinking and driving and protecting an individual s constitutional rights. The facts of Bohling and McNeely are largely similar, which makes it possible to compare the courts reasoning. 120 The only notable difference is that the defendant in Bohling was involved in a car accident, 121 whereas the defendant in McNeely was pulled over for a traffic violation. 122 However, in reaching its holding, the court in Bohling fails to mention the emergency circumstance exception outlined in Schmerber that may have permitted a warrantless blood withdrawal. Instead, the court interprets Schmerber as indicating that dissipation alone is, 117 State v. McNeely, 358 S.W.3d 65 (Mo. 2012); State v. Bohling, 494 N.W.2d 399 (Wis. 1993). 118 Wherry, supra note 25, at 520 (stating that electronic warrants were first adopted by the Federal Rules of Criminal Procedure in 1977); State v. Bohling, 494 N.W.2d 399, 403, 405 (Wis. 1993) (discussing the use of implied consent laws and extrapolation as potential deterrents). 119 McNeely, 358 S.W.3d at (stating that the court cannot agree with Bohling s interpretation that Schmerber intended for dissipation of alcohol to be a per se exigent circumstance). 120 See McNeely, 358 S.W.3d at 65; Bohling, 494 N.W.2d at Bohling, 494 N.W.2d at McNeely, 358 S.W.3d at

19 per se, an exigent circumstance. 123 Therefore, the reasoning provided by the court in both cases can be easily compared. In order for an exigent circumstance to be present as an exception to the warrant requirement, officers must reasonably believe they are confronted with an emergency situation where obtaining a warrant would threaten the destruction of evidence. 124 Whether exigent circumstances exist must be determined on a case-by-case basis. 125 The test to determine whether exigent circumstances exist is an objective test. 126 As a result, an officer must reasonably determine in each situation the likelihood that evidence will be destroyed. Even if Schmerber is to be read that the dissipation alone is sufficient to create an emergency circumstance, it only becomes an exigent circumstance if the officer objectively believes the evidence will be destroyed before procuring a warrant. However, with the introduction of electronic warrants, the process will generally take less than an hour. 127 Therefore, a warrantless blood withdrawal should only be completed after considering other options, such as the electronic warrant. Thus, no matter which way the issue is examined, a totality of the circumstances test is employed. The court in Bohling provided four reasons for its decision in determining that dissipation is a per se exigent circumstance: (1) a logical reading of Schmerber, (2) the Supreme Court's 123 Bohling, 494 N.W.2d at 402 ( We believe that the more reasonable interpretation of Schmerber is the first one set forth-exigency based solely on the fact that alcohol rapidly dissipates in the bloodstream. ). 124 Schmerber v. California, 384 U.S. 757, 770 (1966) ( Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. ). 125 United States v. Morrow, 541 F.2d 1229, 1232 (7th Cir. 1976) (finding that the FBI agents actions met the minimum reasonableness for exigent circumstances, but in the future a search warrant should be obtained whenever possible). 126 United States v. Elder, 352 F.Supp.2d 880, 884 (C.D. Ill. 2005) (finding that exigent circumstances justified a warrantless search of the defendant s shed, the court stated that the officer acted reasonably entering when the door was left open); Schmerber, 384 U.S. at 770 ( The requirement that a warrant be obtained is a requirement that inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. ). 127 State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998). 19

20 decision in Skinner v. Railway Labor Executives' Assn., (citation omitted), (3) interpretations of Schmerber by other courts, and (4) an examination of Wisconsin's interest in enforcing its drunk driving laws. 128 However, the court s arguments fail to provide any persuasive support for a per se approach. First, Bohling s reading of Schmerber does not justify a per se rule. The court in Bohling claims that the special circumstances surrounding the situation did not create the exigent circumstance because a police officer must transport the suspect to the hospital in either case in order to withdraw the blood. 129 However, in Schmerber, the officer did not see the defendant until two hours after the initial encounter because he had to investigate the scene of the accident. 130 Moreover, in contemporary society, a police officer should be able to secure a warrant in the time it takes to transport a suspect to the hospital to have a trained medical professional draw the blood. 131 Thus, Bohling s reading of Schmerber does not provide adequate support for a per se rule. Next, Bohling attempts to broaden a narrow holding in Skinner. 132 In Skinner, laborers working on a railroad filed suit to challenge regulations requiring drug tests. 133 The court held that a warrantless drug test is reasonable under the Fourth Amendment because the government interests served by the regulations outweighed the employees privacy concerns. 134 The court reasoned that the warrant requirement is relaxed when the activity poses a serious public risk. 135 Bohling uses Skinner to assert that the constitutional protections provided to drivers should be 128 State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993). 129 Id. 130 Schmerber, 384 U.S. at Flannigan, 978 P.2d at 131 (explaining that it generally takes the Mesa Police department less than an hour to obtain an electronic warrant). 132 Bohling, 494 N.W.2d at Skinner v. Railway Labor Executives Ass n,, 489 U.S. 602, 612 (1989). 134 Id. at Id. at

21 relaxed as well. 136 However, the status of the individuals makes these cases distinguishable. Precedent has held that employers have the right to drug test employees without a warrant for liability purposes when they are conducting work in sensitive positions. 137 Nevertheless, permitting a drug test of the employee without a warrant is distinguishable from permitting a warrantless drug test of a member of the general public. As a result, the holding of this case cannot be extended to Bohling. Bohling also asserts that a per se rule provides the proper balance of policy interests because there is minimal constitutional intrusion, and a per se rule is necessary to enforce its drinking and driving laws to protect the public. 138 However, the public s safety will be just as protected without lowering individual s constitutional rights. In order to enforce drinking and driving laws, Bohling claims that the probative value of BAC evidence is diminished by delayed testing, making a per se rule vital. 139 However, as previously determined, a warrant may be obtained in the time it takes to transport a suspect to the hospital so that his or her blood is withdrawn by a trained professional, and the mere possibility of delay does not give rise to exigency. 140 Additionally, administrative punishments are in place through implied consent laws to stop drinking and driving. 141 Studies have shown that administrative punishments for first time offenders may reduce recidivism by up to 70%. 142 Forcing someone to submit to a chemical test after a refusal infringes on one s constitutional rights more than is necessary since punishments are already in place to enforce DUI laws. Thus, advancements since Schmerber have altered the balance of policy interests. 136 Bohling, 494 N.W.2d at 405 (citing Skinner, 489 U.S. at 602). 137 National Treasury Employees Union v. Von Raab, 489 U.S. 656, 675 (1989). 138 Bohling, 494 N.W.2d at Id. at State v. Flannigan, 978 P.2d 127, 131 (Ariz. Ct. App. 1998) (explaining that the possibility of a delay in obtaining a search warrant does not create an exigent circumstance). 141 See, e.g. MO. REV. STAT (2011); WIS. STAT. ANN (West 2011). 142 Sentencing, supra note 114 at

22 Finally, even though some courts have reached decisions consistent with Bohling by adopting a per se rule, just as many have found in opposition with a totality of the circumstance rule. 143 Bohling cites a few different jurisdictions that have adopted a per se rule, such as Mississippi and Maine. 144 However, the court in McNeely cites a number of jurisdictions that have rejected the per se approach and adopted a totality of the circumstances test, such as Iowa and Utah. 145 Thus, this argument fails to provide any real support for the decision. In contrast to Bohling, McNeely persuasively relies on their own interpretation of Schmerber and attacks jurisdictions such as Bohling that have adopted a per se approach. 146 Although it is impossible to interpret Schmerber with absolute certainty, an overly broad interpretation adopted by the per se jurisdictions runs the risk of seriously infringing on the public s constitutional protections, which Schmerber seems to warn against in the opinion. 147 McNeely s interpretation of Schmerber provides the more reasonable interpretation. Schmerber states: Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. 148 Because the court explicitly references the extra time that had to be taken to investigate the scene and transport the individual to the hospital as special facts, they seem to be implying that it was 143 See State v. McNeely, 358 S.W.3d 65, (Mo. 2012) (providing examples of multiple jurisdictions that have adopted a per se rule or a totality of the circumstances test). 144 Bohling, 494 N.W.2d at McNeely, 358 S.W.3d at Id. at See Schmerber v. California, 384 U.S. 757, 772 (1966) (stating that they reach the judgment only on the facts of the record and do not want it to be extended). 148 McNeely, 358 S.W.3d at 74 (citing Schmerber, 384 U.S. at 772). 22