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The fact pattern is familiar to many criminal defense attorneys: the client is arrested, suspected of driving while intoxicated. The driver refuses to participate in a breathalyzer test and is not willing to voluntarily provide a blood sample. Then, without first obtaining a warrant authorizing the procedure, the police direct hospital personnel to obtain the blood sample. How does this look to the suspect? Here is Chief Judge Robert's assessment: "it's a pretty scary image of somebody restrained, and, you know, a representative of the State approaching them with a needle."
That comment was uttered during the oral argument in Missouri v. McNeely, a case that was decided late last term, [enhanced version available to lexis.com subscribers]. The facts were not much more complicated than those described above. McNeely was arrested after an early morning traffic stop by a police officer who observed McNeely's truck driving over the speed limit and sway across the dividing line. McNeely admitted drinking that evening, and in addition to the smell of alcohol, the officer observed bloodshot eyes and slurred speech. McNeely did not do well on a number of field sobriety tests that the officer conducted and refused to allow the officer to use a portable breath-test device to measure his blood alcohol concentration.
Following the arrest, as the officer was driving McNeely to the police station the defendant told him that he would not voluntarily submit to a breath test. Consequently, the officer decided to bring McNeely to the hospital to have his blood tested. At the hospital, he asked McNeely if he would allow his blood to be tested. McNeely refused, and he was advised that under state law his refusal to submit voluntarily to the test would result in an immediate one year revocation of his driver's license and could be used against him in a future prosecution. Then, at the officer's direction, less than thirty minutes after McNeely's truck was stopped, a lab technician took a blood sample from McNeely. When it was tested, the blood alcohol level was 0.154 percent, almost double the legal limit of 0.08 percent.
Jay Shapiro is a partner in the New York office of White and Williams LLP. Jay has more than 30 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.
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