Almost a year and half after the United States Supreme Court issued its landmark decision in Missouri v. McNeely, the South Dakota Supreme Court issued a unanimous decision affirming the rights of drivers not to be forced to give blood absent a search warrant, exigent circumstances, or consent. This decision benefits all drivers in South Dakota and gives persons charged with DUI or DWI additional protections and defenses.
The case at issue is State v. Fierro. In Fierro, a woman was arrested on her motorcycle for DUI and DWI in Butte County, South Dakota. She was told during the arrest process that she had to give blood based on South Dakota’s implied consent statute. Every state had, prior to McNeely, an implied consent statute. These statutes tell drivers that, as a condition of receiving their drivers license, they have already consented to giving blood upon demand by a police officer who suspects intoxication. These statutes were based largely upon an almost 50 year old United States Supreme Court decision, Schmerber v. California, that permitted warrantless blood draws in certain drug cases under certain conditions. The holding in Schmerber, though fact specific, had been broadly interpreted and led to the erosion of the rights of all drivers to be free from unreasonable seizures of their blood without a warrant and without the establishment of exigent circumstances.
Over a year after the United States Supreme Court issued its landmark decision in Missouri v. McNeely, the South Dakota Supreme Court has issued its first major decision on the matter of forced blood draws in DUI cases. The case is State v. Fierro, and it goes a long way in protecting the rights of drivers in South Dakota from arbitrary, forced blood draws without the basic protection of a search warrant.
In Fierro, the defendant was stopped by the South Dakota Highway Patrol as she drove her motorcycle in Butte County. Upon her arrest for suspected DUI, Fierro was told that she had to give blood pursuant to South Dakota’s “implied consent” law. This statement of law was made by the trooper four months after the United States Supreme Court had ruled that drivers cannot, in most circumstances, be forced to give blood unless a judge issues a warrant for the seizure of the blood based on a finding of probable cause. The trooper made no effort to get Fierro’s voluntary consent, and he made no effort to get a warrant from a judge. Under South Dakota law, judges may authorize a search warrant over the phone, and this process is routinely used when arrests are made after hours. Thus, there was no reason for the trooper not to request a warrant.
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