The Supreme Court of the United States just moments ago published its opinion in the case of Missouri v. McNeely (11-1425). In part the majority held:

The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. – Justice Sotomayor

The full opinion is available here: http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

In talking things over here in this office for the last several hours as well as with Lenny Stamm of Maryland, we have come up with three scenarios that today’s decision could possibly affect.

*It is important to note that this is based upon reasoning and dicta in the majority opinion (in parts plurality opinion) of Sotomayer. Just because it is in dicta or part of the reasoning does not mean that it expressly overrules any of these scenarios below.*

1. In states where a refusal of a blood test provides for a crime (not PA), these laws could be impacted by the language in the opinion. It casts into doubt the constitutionality of such a practice.
2. In states where a refusal of a blood test provides for a sentencing enhancement (such as PA), that sentencing enhancement could be impacted by the language in the opinion. It casts into doubt the constitutionality of such a practice.
3. In states where there is a permissible inference that is known as “consciousness of guilt” jury instruction when the person declines to provide a blood test, that consciousness of guilt instruction could be impacted by the language in the opinion. It casts into doubt the constitutionality of such a practice.

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.