For years, Wisconsin and Minnesota trial and appellate courts have ruled that an earlier U.S. Supreme Court decision, Schmerber v. California, 384 U.S. 757 (1966), permitted forced warrantless blood draws from suspected impaired drivers, so long as there existed probable cause and the method of drawing the blood was not patently unreasonable. Therefore, the McNeely decision represents a monumental shift in the manner that blood draws will be conducted by police.
A lot of questions remain uncertain at this point, including (1) whether breath or urine tests will be
given similar treatment under McNeely; (2) whether McNeely will be applied retroactively to prior cases; and (3) whether McNeely has any application to cases where the suspect driver agreed, under the Implied Consent
Law, to submit a sample. Remember, in Minnesota, a refusal to submit a sample of breath, blood, or urine is a crime, and the subject is told that when he/she supposedly consents to provide a sample. How could agreement to submit a
sample, under threat of criminal prosecution, be anything but coerced consent? And under the Wisconsin Implied Consent Law, a suspect is told his/her driving privileges will be revoked, creating similar issues.
One thing is for sure, this case is a very exciting development for this OWI/DWI attorney, and I will be working to answer these and other questions to give my clients every advantage possible. Another thing, is that there will be a lot of judges losing sleep taking late-night calls on warrant applications.