South Dakota Supreme Court Clarifies Drivers’ Right to Refuse Blood Draw

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. The magistrate judge agreed with Fierro that the trooper’s conduct violated her Fourth Amendment right to be free from unreasonable search and seizure. The judge ordered that the results of the blood test be suppressed, meaning that the results could not be used against her at trial. The State appealed the decision to the South Dakota Supreme Court. In a unanimous decision, the South Dakota Supreme Court agreed with the magistrate judge. In coming to this decision, the Court rejected the State’s argument that the South Dakota legislature, which passed the “Implied Consent” law (a law which says you automatically give consent to have your blood removed — forcibly if necessary — merely by virtue of you having obtained a South Dakota driver license), could enact a law that violated the Fourth Amendment. Importantly, the Court also rejected the State’s argument that Fierro had consented to the blood draw. The Court noted that Fierro had no legal right to refuse the blood draw under the Implied Consent law, therefore any consent given by her was merely “submission to authority” and not the free and voluntary consent that obviates the need for a warrant. Last, the Court held that the trooper did not act in good faith because he told Fierro that she had to give blood over four months after he was made aware of the McNeely decision. The Fierro decision is good for drivers in South Dakota. It requires a warrant in all but a few cases before a driver can be forced to give blood. Having the input of an impartial judge in matters as intrusive as forced blood draws protects our citizenry from over reaching by the police.