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Minority Opinion: State of Missouri, Appellant, vs. Tyler G. McNeely, Respondent.

The Supreme Court of Missouri’s decision in favor of the judgment of the Circuit Court of Cape Girardeau County (Missouri) against the subsequent appeal of the State of Missouri in the case of Tyler G. McNeely affirmed that Fourth Amendment rights were violated when the blood from the defendant was taken by Missouri state patrolmen. The argument that exigency necessitated the blood taking was inconsistent with the rule of law.

The required warrant for blood taking is, however, inappropriate to the exigencies of the DWI case, in so far as the evidence will dissipate, according to the nature of blood alcohol levels, before a warrant may be acquired. Accordingly, the general Fourth Amendment rights cited in defense of McNeely does not cover the exception covered by exigency. The State of Missouri acted correctly by taking into account the context of the DWI incident.

Whereas Schmerber vs. California appears to set a precedent by the U.S. Supreme Court against the taking of blood without warrant, in so far as this decision opposes warantless body intrusion, this decision does not overrule the possibility of warantless blood sampling. The latter is dependent upon the special facts of the exigency.

The State has argued that such special facts were extant in the appellant’s case, therefore the decision for warantless bodily intrusion must be legally upheld.

In addition, the case reveals a lacuna in the law, whereby because of the nature of DWI, the current rule of law fails to address the dissipation of alcohol in the bloodstream. This becomes an issue of public safety and state interest, in so far as potential offenders cannot be adequately tested under the current rule of law without appealing to the special facts of exigency, which themselves are not clearly written in law. To uphold the initial decision of the Circuit Court of Cape Girardeau County (Missouri) is therefore to ignore issues of public safety, while also endorsing the inconsistency of the law itself.