Per Se Exigency vs. Near Per Se Exigency
by: Ryan • June 23, 2016 • no comments
In today's opinion in Birchfield v North Dakota, the US Supreme Court held -- among other things -- that obtaining a blood draw in a DUII investigation requires a search warrant or an exception to the warrant requirement (e.g., consent, exigency.) It rejected the argument that no warrant was required under the "search incident to arrest" exception to the warrant requirement.
The big question: Is this different than what the Oregon Supreme Court held in Machuca? And the answer is: yes and no.
Machuca did not hold that blood draws in a DUII investigation justified a per se exception to the warrant requirement. But it did -- in effect -- find a near per se exception, finding that in virtually every case a warrant was not required. The exception to the exception occurred when:
- in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.
Machuca at 736.
Does that mean there's ever a situation where the police would have to get a warrant to draw blood in a DUII investigation? Well, the following exchange might be appropriate here.
- Lloyd Christmas: Hit me with it! Just give it to me straight! I came a long way just to see you Mary, just... The least you can do is level with me. What are my chances?
- Mary Swanson: Not good.
- Lloyd Christmas: [he gulps, his mouth twitching] You mean, not good like one out of a hundred?
- Mary Swanson: I'd say more like one out of a million.
- Lloyd Christmas: [long pause while he processes what he's heard] So you're telling me there's a chance. YEAH!
In the real world, Machuca announced a per se exception (to everyone except Lloyd Christmas), the very thing that was rejected today in Birchfield. But the Oregon Supreme Court has -- in the past few years -- become known for slicing the law very finely. Will it pretend that its rule of a near per se exigency is not at obvious odds with today's Birchfield decision, because of an exception it imagines that simply doesn't translate in an any meaningful way to the experience on the ground?
