State v. German: Warrantless Blood Draws are Unconstitutional

In State v. German, the SC Supreme Court finally decided this year that warrantless blood draws are unconstitutional unless there is a warrant, consent, or exigent circumstances, a decade after the US Supreme Court reached the same conclusion in Missouri v. McNeely.

Why did it take so long?

Consider that one SC Supreme Court justice would still find that SC’s implied consent law is valid and constitutional despite the US Supreme Court’s opinion, and we have all consented to have our blood forcibly taken by law enforcement in exchange for the privilege of driving on SC’s highways.

Missouri v. McNeely and State v. McCall – Warrantless Blood Draws are Unconstitutional (But not in South Carolina)

Ten years ago, in Missouri v. McNeely, the US Supreme Court held that police cannot order a blood draw unless they first get a search warrant based upon probable cause or unless exigent circumstances justify the warrantless search.

In 2020, the SC Supreme Court decided State v. McCall, where they agreed with the US Supreme Court that there must be exigent circumstances. They then explained how the facts of every felony DUI case (any serious traffic accident) in South Carolina would fit their definition of exigent circumstances.

The message was clear – police do not need to seek a warrant before ordering a blood draw in any felony DUI case, because the courts will find that exigent circumstances justified the warrantless blood draw.

Exigent Circumstances and Schmerber v. California

In State v. McCall, the SC Supreme Court relied upon the 1966 US Supreme Court case Schmerber v. California to find that, when there is a traffic accident, the danger of alcohol dissipating from a suspect’s bloodstream is an exigent circumstance that justifies a forcible blood draw without first seeking a warrant.

This may sound like a good argument – to anyone who did not read the US Supreme Court’s opinion in Missouri v. McNeely where they expressly rejected this reasoning and overruled Schmerber to the extent that it held a warrant was not necessary for a blood draw due to the danger of alcohol dissipating…

The US Supreme Court recognized that there have been technological advances in the half a century since Schmerber was decided, and officers can now obtain search warrants much more quickly because, in many jurisdictions (including many jurisdictions in South Carolina), there are magistrates available 24 hours a day and warrants can be obtained quickly by telephone and computer.

So, after State v. McCall was decided, South Carolina police were free to ignore the US Supreme Court’s decision in McNeely and order a blood draw without first seeking a search warrant any time there was suspicion of felony DUI.

State v. German – Warrantless Blood Draws and South Carolina’s Right to Privacy

In State v. German, decided by the SC Supreme Court this year, the Court acknowledged that maybe a forced blood draw isn’t okay in every case after all, and held that SC Code § 56-5-2946 (South Carolina’s implied consent law as applied to felony DUIs) is unconstitutional under both the Fourth Amendment and Article I, Section 10 of the SC Constitution’s right to privacy.

Before police can order a blood draw in a felony DUI investigation, there must be:

  1. Actual consent – the SC legislature cannot legislate consent, creating a “categorical exception to the general warrant requirement.” Consent must be voluntarily given, and a suspect must be able to refuse or revoke consent for it to be valid,
  2. Exigent circumstances – which, under McNeely, requires the court to consider the availability of procedures to obtain a warrant. When those procedures exist, and the officer does not try to get a warrant, the possibility of alcohol dissipating from the bloodstream does not qualify as exigent circumstances, or
  3. A search warrant based upon probable cause.

South Carolina’s Right to Privacy Prohibits Warrantless Blood Draws

Warrantless blood draws violate a suspect’s express right to privacy under the SC Constitution as well as their right to be free from unreasonable searches under the federal Constitution:

Turning to the instant case, we find the provision in our state constitution is implicated when law enforcement obtains a warrantless blood draw. As the United States Supreme Court recognized in Schmerber v. California, there is a constitutional right to privacy in one’s blood. 384 U.S. 757, 767 (1966)… Blood tests require piercing the skin and the extraction of a part of the person’s body, and a blood test provides law enforcement with a preservable sample that contains a person’s DNA and other medical information besides the BAC reading. Id. at 464. The drafters of our constitutional provision were concerned with the emergence of new technology enabling more invasive searches, and a blood test’s process certainly is one of the most invasive government searches a suspect may encounter…

Because he ordered the blood draw despite Appellant’s refusal, he violated Appellant’s right to be free from an unreasonable invasion of privacy.

SC’s legislature cannot create an exception to the federal constitution with “implied consent,” and there must be either a warrant or an “approved exception to the warrant requirement of the Fourth Amendment:”

At bottom, implied consent, as referred to in the impaired driver statutory scheme, is non-existent outside of matters involving the civil suspension or revocation of driver’s licenses. There is no constitutionally approved, statutory per se implied consent to a blood draw. Law enforcement’s demand for a warrantless blood test must be founded on an approved exception to the warrant requirement of the Fourth Amendment. A mandatory and forced blood draw is patently distinct from other modes of DUI investigation and, consequently, violates the South Carolina Constitution when administered without a warrant.

Justice Few – Because the Legislature Said So…

One Supreme Court justice wrote a separate concurrence to explain why South Carolina’s implied consent law is constitutional.

It is a “concurrence” because the justice agrees with the ultimate result – the Court upheld the conviction because the officer was acting in “good faith” when he ordered the blood draw. The implied consent law said he didn’t need a warrant, and the SC Supreme Court said he didn’t need a warrant. Although the US Supreme Court said he does need a warrant, it’s easy to see how it can be confusing when the SC Supreme Court said in McCall that the US Supreme Court didn’t mean what they said in McNeely

The concurring opinion in German would have held that every person who drives a vehicle in South Carolina has consented to provide a blood sample and cannot revoke that consent.

The consent is valid because the legislature said so, and:

  • “German—like all adults who hold a driver’s license in South Carolina—is an adult. She made a voluntary decision to accept the privilege of driving in this State in exchange for granting consent to have her blood drawn under the circumstances of this case.”
  • “Importantly, German was not intoxicated when she voluntarily granted consent under the implied consent law.”
  • Although the officer wrote “refused to sign” on the implied consent form, “For all we know, she did not sign the form because she believed doing so was unnecessary in light of the implied
    consent law.”
  • Although the officer told German, “Like it or not, we are getting a blood draw,” the phlebotomist testified that German “was willing to have the blood drawn.”

Unlimited, unrestricted, unreviewable authority for government officials. What could go wrong?

DUI Lawyer in Conway, SC

If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed.

Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.