On November 27, 2012, a Winnona, Missouri police officer drove to the Winona City Hall to sign papers. The deputy chief detected alcohol on his breath and subsequently ordered a blood alcohol test administered. The officer’s BAC was 0.22 percent, over 2.5 times the legal limit to drive. He faces two gross misdemeanor charges for driving while intoxicated.

However, the officer has recently questioned the constitutionality of the blood test. He is arguing that on the facts of the case, the deputy chief would have needed a warrant to conduct a blood test. He is basing the case on a recent U.S. Supreme Court ruling.

In April, the Supreme Court held that Missouri police must obtain a search warrant before obtaining a blood test, although they did limit the ruling. Not all blood tests are unconstitutional, the court held, but local judges must decide each case according to the facts.

The case arose in 2010, when a Missouri man was pulled over for speeding. He refused a blood alcohol concentration test and taken to a nearby hospital. He was given a blood test that revealed he was over the limit.  That man argued it was against the Fourth Amendment to conduct a search without a warrant. The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable search and seizure. The Supreme Court agreed that getting a blood test based on suspicion of DWI is unconstitutional.

The “McNeely defense,” as it is called, may play a role in quite a few DWI cases. If you have been arrested and charged with a DUI, you should contact an experienced criminal defense attorney to protect your rights.

Source: Winona Daily News, “Attorney questions blood test in off-duty Winona officer’s drunken-driving charge,” Jerome Christenson, July 18