On April 17, 2013, the Supreme Court issued a splintered opinion in which a 5-4 majority ruled that nonconsensual blood draws ordinarily require a search warrant in driving while intoxicated investigations and arrests. Missouri v. McNeely, ___ U.S. ___ (April 17, 2013). McNeely says that the totality of the circumstances needs to be reviewed to determine whether an exigency existed to draw the blood without first obtaining a search warrant, but underlines that search warrants will usually be required for such investigations.

McNeely, unfortunately, focuses on the dissipation of alcohol in the suspect’s body, and includes no discussion about the many instances in which alcohol continues absorbing into one’s bloodstream after the suspect’s driving activity is complete. Consequently, criminal defense lawyers and their expert witnesses (experts on breath testing, for instance) must be at the ready to educate judges about the frequent ongoing absorption of alcohol into the bloodstream after driving ceases.

Among McNeely’s benefits is the elimination of the draconian practice in at least one or more states where police have reportedly pinned down resistant drunk driving suspects on the scene, to draw blood onsite.