South Dakota Supreme Court Issues Decision Protecting Drivers from Warrantless Forced Blood Draws

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. Ms. Fierro was told that she had to give blood pursuant to South Dakota’s implied consent statute. The trooper acknowledged knowing that McNeely had been issued months before. However, he took the business as usual approach and demanded a blood sample anyhow. The trooper could have easily obtained a telephonic warrant, but opted not to do so. The trooper’s decision not to bother seeking a telephonic warrant represents a common tendency among those in law enforcement to fight back against the checks and balances that make our criminal justice system fair. The warrant requirement is not onerous. All the officer needs to do is call the judge on a recorded line and set forth his or her observations of the driver, such as poor driving, the smell of alcohol, the driver’s admission to consuming alcohol, and the results of the field sobriety tests. Upon hearing this evidence, the judge authorizes the warrant if the facts establish probable cause. This is the kind of check on police action that our founding fathers insisted be included in the Bill of Rights. Ms. Fierro, fortunately, had the backbone to fight for her rights. She filed a suppression motion. The magistrate judge correctly decided that Ms. Fierro’s blood sample was obtained in violation of the Fourth Amendment. The magistrate suppressed the results of the blood draw. The State appealed. In a unanimous decision the South Dakota Supreme Court affirmed the magistrate’s decision. The decision made several pronouncements of law that benefit drivers in South Dakota. First, it affirmed the applicability of McNeely. Second, it struck down as unconstitutional South Dakota’s implied consent statute. Third, and perhaps most important as we move forward, it affirmed that law enforcement cannot get around the warrant requirement based merely on an allegation that the driver consented to a blood draw. The Court held that “consent is not met by the submission to authority.” Instead, consent must be freely and voluntarily given. However, the battle is not over. As many defense attorneys have noted since Fierro was released, arresting officers are trying to get around the holding by intimating to drivers that they have no right to refuse a blood draw. Since most drivers have gotten used to the implied consent statutes that have been on the books for decades, and because most drivers don’t pay attention to legal news, it is relatively easy for law enforcement to suggest that a blood draw is mandatory. What constitutes consent will be the next battleground for drivers.