The United States Supreme Court recently discussed warrantless blood draws in operating while intoxicated (OWI) cases in Missouri v. McNeely. In that case, the driver refused to consent to the blood draw and the police ordered the laboratory technician to draw the blood anyway. The State argued that the natural dissipation of alcohol in the blood stream constituted an exigent circumstance justifying a nonconsensual, warrantless blood test in ALL cases. The Court disagreed. The Court focused on the changing technology that allows officers to apply for and obtain warrants in minutes through email, FAX, and other means. Therefore, whether there are exigent circumstances “must be determined case by case based on the totality of the circumstances.”
In Indiana, long before this ruling, some courts (such as Wayne Superior Court No. 3) have set up procedures enabling judges to be available to law enforcement virtually twenty-four hours a day to consider warrant requests for blood draws in the event the driver refuses to consent after being read the implied consent warning pursuant to IC 9-30-6-2. To accommodate these requests, Judges may receive sworn testimony of facts required for a search warrant affidavit by telephone, radio, or in writing by FAX. IC 35-33-5-8(a). The affidavit and warrant form must be read to or transmitted to the judge, who can then make any necessary corrections.
It should also be noted that a statutory warrant exception exists in Indiana for operating while intoxicated investigations where there was a motor vehicle accident resulting in serious bodily injury or death of another. IC 9-30-6-6(g) and -6(h). Under this statute, if the person refuses to consent to a blood draw, the blood sample may be taken by reasonable force so long as:
(1) the officer has probable cause that the person was operating while intoxicated,
(2) the person was involved in a motor vehicle accident resulting in serious bodily injury or death, and
(3) the accident happened less than three hours before the time the blood sample was requested.
No warrant is required.