DWI refusals refused, even as law challenged

At least one Missouri county is taking advantage of a new law that allows them to take blood samples from suspected drunken drivers without warrants, even as a challenge to the law moves through the courts.

Last week, officials announced that Platte County would be the first county in metropolitan Kansas City to fully implement the new law, which was passed last year.

“The days of being able to hide the evidence of your guilt are over,” Platte County Prosecutor Eric Zahnd said at a press conference Thursday.

Until 2010, the state’s driving while intoxicated statutes previously said that if a driver refused to take a chemical test, then “none shall be given” — although the driver could still lose his or her license.

Lawmakers removed that wording, arguably allowing police officers to obtain nonconsensual samples of breath, blood, saliva or urine without a warrant.

At least, that’s what the Court of Appeals Eastern District concluded in an opinion issued less than two weeks prior to Platte County’s announcement. On June 21, the court upheld the drawing of a nonconsensual blood sample from a suspected drunken driver from Cape Girardeau County.

The court, however, transferred the case, State v. McNeely, to the Missouri Supreme Court. The Eastern District said its decision was a “significant departure from current case law.” The high court has not yet taken any action.

Zahnd said his announcement was timed to come before the 4^th of July holiday weekend and that the court’s decision was a “happy coincidence.” He said he was confident the Supreme Court would uphold it on appeal.

Others aren’t so sure. Stephen C. Wilson, of Wilson & Mann in Cape Girardeau, represents Tyler McNeely, the defendant in the case now on review. Wilson said a bit of statutory “housekeeping” by lawmakers can’t do away with defendants’ rights.

“You can’t, just by striking four words, strike out the Fourth Amendment,” he said.

The trial judge in McNeely’s case, Cape Girardeau County Circuit Judge Benjamin F. Lewis, had refused to admit the blood sample because it was obtained without a warrant.

In 1966, the U.S. Supreme Court ruled in Schmerber v. California that a warrantless blood draw was justified in a drunken driving case because blood alcohol content dissipates over time, destroying the evidence.

But Missouri’s courts held that the “none shall be given” phrase in state statute limited the instances in which an involuntarily blood sample could be drawn. Most recently, in 2003, the court said in State v. Carol Sue Smith that law enforcement officers couldn’t perform a refused test but that the state could still get a warrant to obtain it. (McNeely’s lawyer, Wilson, also represented Smith.)

Jeffrey Eastman, a DWI defense lawyer with Keleher & Eastman in Gladstone, is watching both the Platte County policy and the impending court challenge carefully. He said technology has changed a lot in the 45 years since the Schmerber ruling, and that in an age of cell phones and Internet connections law enforcement should be able to get warrants very quickly.

“You can get it if you want it,” he said. “And they’re basically saying, ‘We don’t have to have one. Every case is an exigency.’”