Collins & Collins, P.C.

The Legality of Warrantless DWI Blood Draws - More Than Meets the Eye for New Mexico Drivers

The recent United States Supreme Court case of Missouri v. McNeely addressed the legality of a warrantless non-consensual blood draw in a DWI case. The State of Missouri argued for a per se (blanket) exception to the 4th Amendment's warrant requirement for cases in which a DWI suspect refused a breath alcohol test. The Court refused the per se exception. But the opinion was quite limited in its scope and it would be unwise for DWI suspects to read to much into the opinion. More to the point, the opinion will maintain the status quo at least in New Mexico and will have a negligible effect on the rights of New Mexico DWI suspects.


Albuquerque, NM -- (ReleaseWire) -- 04/29/2013 --The recent United States Supreme Court case of Missouri v. McNeely addressed the legality of a forced warrantless non-consensual blood draw in a DWI case. Though the Court headed off what would have surely resulted in wholesale violation of individual rights in DWI investigations, the ruling was quite limited in scope and will have a negligible effect on the rights of New Mexico DWI suspects.

The case involved the State of Missouri’s proposed blanket exception to the 4th Amendment’s warrant requirements in cases where a DWI suspect refuses a breath alcohol test. Specifically Missouri argued that there should be a per se or blanket exception in such cases based upon the “exigent circumstances” exception. Briefly, though volumes have been written on the subject, exigent circumstances exist when the needs of law enforcement are “so compelling that a warrantless search is objectively reasonable.”

The U.S. Supreme Court held that such refusals of the breath alcohol exam did not necessarily invoke the exigent circumstances exception. Instead each case had to be analyzed individually. The Court would not allow a per se exception. Nor did the court suggest a blanket prohibition.

The Court noted that this case in particular amounted to no more than a routine DWI investigation. There were no exceptional circumstances suggesting the need for a warrantless blood draw. The Court specifically mentioned the ease and speed at which a warrant can be obtained. There simply appeared to be no reason in this case for the failure to obtain a warrant.

The ruling was specific to the facts. The Court noted that there have been and will continue to be situations where such a warrantless non-consensual blood draw would be legal under the 4th Amendment. This case simply did not fit the bill which in and of itself weighs against Missouri's argument for a per se warrant exception for DWI refusals.

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. The impaired to the slightest degree standard 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 in New Mexico. Though the McNeely case certainly provides important 4th Amendment privacy protections for DWI suspects and most assuredly will head off many potential abuses, 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.