Implications of the case: The drawing of blood is a 4th Amendment matter and the 4th Amendment is not nullified by implied consent (raises the question of constitutionality of charging refusal).
----------Yesterday there was a bit of a kerfuffle when the US Supreme Court put out Missouri v. McNeely. Mostly, this was because of the way Missouri law enforcement (and maybe their statutes) dealt with refusal to to submit to a breathalizer or blood test when an officer has probable cause to believe a person has driven under the influence of intoxicants. The Missouri solution? Take the person to the hospital and take a blood sample against the person's will.
Missouri argued that this had to be done because the human body filters out alcohol as time progresses and this was an exigent circumstance. The trial court, the Missouri Supreme Court, and the U.S. Supreme Court all rejected this argument. So, Missouri gets credit for persistence, but it loses a whole lot more because it does not understand the definition of "exigent." All the courts listed above ruled that a human body metabolizing alcohol, absent something more, is not exigent. It's just a normal bodily function. The U.S. Supreme Court went on to say that in the modern era we have these things called "phones" which can be used to call whomever an officer needs to in order to get a warrant in a timely manner.
All this rises out of "implied consent." Every State has some form of this legal theory and at its core it makes sense. If you decide to drive the roads of Virginia the implication is that you will follow the laws in doing so. You'll drive the posted speed; you will stop at stop signs; you will not drive intoxicated. It's basically an agreement to follow a social compact for the road. However, implied consent then gets pushed beyond the area of the driving social compact into the realm of the foundational rights we have baked into our system through the Constitution. Implied consent is held (universally as far as I can tell) to require a DUI suspect to cooperate in the gathering of evidence against herself by agreeing to breath or blood test. As such, it comes into conflict with the greater social compact of the US Constitution and its guaranties against searches without a warrant.
Virginia's way of handling this was to pass 18.2-268.3, a "refusal" statute. The pertinent part of this is subsection D:
D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2.Thus, in Virginia (and I suspect most States) the officer does not take a refuser to a hospital and force him to submit to an unconstitutional blood draw. In the vast majority of cases he merely files another complaint to the magistrate and gets a refusal warrant issued against the suspect. If the officer feels the circumstances are such that there is a reason he needs a blood draw without the suspect's acquiescence, the officer can also ask for a search warrant from the magistrate. Of course, if there are actual exigent circumstances (best be able to justify it in court) an officer could arrange for a blood draw without a warrant.
If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.
The Affect Of McNeely on Virginia Law:
At least initially, not much. Because Virginia does not authorize taking someone's blood without a search warrant or actual exigent circumstances, things will continue as they have.
In the longer term, the refusal statute may be in trouble. The Virginia Appellate courts have consistently held that the implied consent waives the 4th Amendment:
We also find no Fourth Amendment violation in punishing a DUI suspect for refusing to provide a breath sample under Code § 18.2-268.3. As a general rule, a search authorized by consent is wholly valid. The general rule applies here because Rowley, like all drivers, consented to submit breath samples by exercising the legal privilege of driving on the Commonwealth's roads. See Code § 18.2-268.2(A). This consent is not "qualified" or "conditional. To allow it to be unilaterally withdrawn would virtually nullify the Implied Consent Law.
Rowley's Fourth Amendment challenge to Code § 18.2-268.3 thus fails for the very reason Code § 18.2-268.2(A) succeeds. The act of driving constitutes an irrevocable, albeit implied, consent to the officer's demand for a breath sample. See Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir.1986) (holding that there "is no Fourth Amendment right to refuse a breathalyzer examination"). The trial court, therefore, correctly rejected Rowley's Fourth Amendment claim.
Rowley v. Commonwealth, 48 Va. App. 181 (2006)(multiple cites and quotation marks removed).In McNeely it is clear that Missouri has an implied consent law of its own:
Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.And yet, the U.S. Supreme Court clearly recognizes a 4th Amendment right against the seizure of the blood when a person refuses to submit. In its discussion of Schmerber v. California, 384 U. S. 757 (1966) the Court plainly states that it held "the warrant requirement applied generally to searches that intrude into the human body." While not addressed directly, implied consent for taking a blood or breath sample seems to be in an extremely tenuous position post McNeely.