Law Offices of Michael Steven Sherman, P.C.

Police Must Have Warrant For Blood Draw In DUI Cases


June 4, 2013

On April 17, 2013, the United States Supreme Court issued a decision that will affect all Pennsylvania motorists. In McNeely v. Missouri, No. 11-1425, __U.S.__ (April 17, 2013), the Supreme Court ruled that, absent exigent circumstances, the police must obtain a search warrant before they can require a motorist to submit to a blood draw in DUI cases. What constitutes “exigent circumstances” will be decided on a case-by-case basis. McNeely changes the dynamics of handling DUI cases: you must move to suppress the blood alcohol content result in cases where the blood was drawn without the officer first obtaining a search warrant.

The McNeely case also raises numerous issues. Motorists who refuse to submit to a chemical test are subjected to the enhanced penalties set forth in Pennsylvania Motor Vehicle Code Section 3804(c), 75 Pa.C.S.A. § 3804(c). McNeely calls into question the constitutionality of such a practice if the police did not first obtain a search warrant.

McNeely involved the police requesting that the motorist submit to a blood test. What about breath testing? Does breath testing fall within the confines McNeely? If extracting something from the body (in breath testing that would be breath from the lungs) is the standard, it clearly constitutes a “search.” So, it would seem that breath testing is encompassed within the McNeely decision.

McNeely may also impact on the civil aspect of refusals – license suspension appeals. By refusing chemical testing, motorists can be subjected to a license suspension. If a motorist exercises his constitutional right to demand a search warrant before the police extract his blood, can he be subjected to the penalties under the Implied Consent Law? It would appear that a motorist cannot be punished for exercising his constitutional rights. Moreover, the Fourth Amendment, which is of constitutional basis, is now pitted against a statutory provision created by the legislature (i.e., the Implied Consent Law). It would seem that the constitutional provision would win but it is so early, these arguments have not yet been raised. There is clearly going to be some interesting and exciting advocacy and judicial decision-making on these issues in the months to come.

Call former Pennsylvania State Police attorney Mike Sherman to protect your rights and make sure that you are educated on the latest facts and arguments that may benefit your case.

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About the Author

Mike has over 29 years of experience, including serving as an attorney with the Pennsylvania State Police for over 8 years. Mike knows both sides of PA DUI law!