The Issue of Warrantless Non-Consensual Blood Draws in DWI Cases

In the case of Missouri v. McNeely , the United States Supreme Court recently addressed the legality of a warrantless, non-consensual blood draw in a DWI investigation. More specifically, the Court addressed whether there could be a per se blanket rule exception to the 4th Amendment under the exigent circumstances exception in DWI investigations.

The Court ruled that there could be no such per se rule. Instead, the cases must be analyzed on a case by case basis. As a result, there was nothing justifying a per se rule, but there was likewise nothing suggesting a per se rule prohibiting such non-consensual, warrantless blood draws.

In the McNeely case, the Court held, based upon the circumstances of the case, that the blood draw was a violation of the 4th Amendment search and seizure protections. Instead, McNeely was no more than a routine DWI investigation with nothing suggesting exigent circumstances necessary for an exception to the warrant requirement.

For those in New Mexico, it is important to understand the limitations of the opinion. It would be unwise to read too much into the opinion with potentially serious consequences for your rights.

First, as suggested, the Court stated that these cases must be analyzed on a case by case basis. In short, there may be a situation where a warrantless, non-consensual blood draw is allowable. The Court discussed a number of such past cases.

Second, the Court in no way suggested that a non-consensual blood draw would be disallowed where a warrant was properly secured and executed. In fact, the Court explicitly recognized the ease and speed with which a lawful warrant for a blood draw may be obtained. In those situations where the warrant is legally obtained, then there simply is no prohibition against a non-consensual blood draw.

Perhaps, most importantly for New Mexico drivers, it must be recognized that there are consequences for a refusal to consent to a blood and/or breath alcohol examination that are independent of the criminal charges. Under the New Mexico Implied Consent Act, a refusal has several automatic and quite serious consequences.

First, a refusal will result in the automatic revocation of your driver‘s license. Under New Mexico law, a refusal carries a mandatory and automatic 1 year license revocation. In addition, the license revocation is independent of the criminal charges. In other words, even if you are successful in excluding the illegal blood draw as in the case of McNeely and you thereby are acquitted of the DWI charges, the license revocation still stands. Your guilt or innocence in the DWI criminal proceedings in no way affects the Motor Vehicle Division‘s revocation of your license.

Second, refusal of a breath and/or blood alcohol test will result in the aggravation of your charges. In other words, you will be charged with Aggravated DWI instead of simple DWI. Aggravated DWI carries mandatory jail time. In cases of repeat DWI offenders, conviction for aggravated DWI carries increasingly severe mandatory jail time.

Finally, a blood and/or breath test is not necessary for a conviction. The test could be excluded and you could still be convicted under New Mexico‘s “impaired to the slightest degree” standard. The rule originated to deal specifically with refusals. This is a fairly easy standard to meet and a blood/breath alcohol test is by no means necessary to meet it.

In short, there are consequences for refusal to provide a blood or breath sample. Though the McNeely case certainly provides important 4th Amendment privacy protections for DWI suspects, it is by no means a get out of jail free card. In fact, there is no such get out of free jail card in DWI cases. And if you can‘t get out of jail free then you might want to avoid jail altogether and this can be done only by not drinking and driving.


Related Reading:
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
DWI/DUI: The True Standard in New Mexico is Impaired to the Slightest Degree
Factors Leading to a Charge of Aggravated DWI in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

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