In State v. German, the SC Supreme Court finally decided this year that warrantless blood draws are unconstitutional unless there is a warrant, consent, or exigent circumstances, a decade after the US Supreme Court reached the same conclusion in Missouri v. McNeely.
Missouri v. McNeely and State v. McCall – Warrantless Blood Draws are Unconstitutional (But not in South Carolina)
Ten years ago, in Missouri v. McNeely, the US Supreme Court held that police cannot order a blood draw unless they first get a search warrant based upon probable cause or unless exigent circumstances justify the warrantless search.
In 2020, the SC Supreme Court decided State v. McCall, where they agreed with the US Supreme Court that there must be exigent circumstances. They then explained how the facts of every felony DUI case (any serious traffic accident) in South Carolina would fit their definition of exigent circumstances.
The message was clear – police do not need to seek a warrant before ordering a blood draw in any felony DUI case, because the courts will find that exigent circumstances justified the warrantless blood draw.
Exigent Circumstances and Schmerber v. California
In State v. McCall, the SC Supreme Court relied upon the 1966 US Supreme Court case Schmerber v. California to find that, when there is a traffic accident, the danger of alcohol dissipating from a suspect’s bloodstream is an exigent circumstance that justifies a forcible blood draw without first seeking a warrant.
This may sound like a good argument – to anyone who did not read the US Supreme Court’s opinion in Missouri v. McNeely where they expressly rejected this reasoning and overruled Schmerber to the extent that it held a warrant was not necessary for a blood draw due to the danger of alcohol dissipating…
The US Supreme Court recognized that there have been technological advances in the half a century since Schmerber was decided, and officers can now obtain search warrants much more quickly because, in many jurisdictions (including many jurisdictions in South Carolina), there are magistrates available 24 hours a day and warrants can be obtained quickly by telephone and computer.
So, after State v. McCall was decided, South Carolina police were free to ignore the US Supreme Court’s decision in McNeely and order a blood draw without first seeking a search warrant any time there was suspicion of felony DUI.
State v. German – Warrantless Blood Draws and South Carolina’s Right to Privacy
In State v. German, decided by the SC Supreme Court this year, the Court acknowledged that maybe a forced blood draw isn’t okay in every case after all, and held that SC Code § 56-5-2946 (South Carolina’s implied consent law as applied to felony DUIs) is unconstitutional under both the Fourth Amendment and Article I, Section 10 of the SC Constitution’s right to privacy.