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Media > Newsletters > Law Enforcement Bulletin > April 2013 > State v. Carr, Eleventh District Court of Appeals (Ashtabula, Geauga, Lake, Portage, Trumbull counti

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State v. Carr, Eleventh District Court of Appeals (Ashtabula, Geauga, Lake, Portage, Trumbull counties), March 4, 2013

Question: Can a peace officer have a suspect’s blood drawn without consent or a warrant in order to collect evidence of a crime?
Quick Answer: Yes, but only if there’s probable cause to arrest and exigent circumstances exist, which strongly depends on the facts and circumstances.
Facts: A police officer was dispatched to a traffic accident on an interstate highway. When he arrived, the officer saw one vehicle on the road’s left shoulder and a second car in a ditch off the right shoulder. The officer spoke to one of the drivers, Michael Carr, who had blood running down the front of his face, slurred speech, and seemed confused. EMTs placed Carr in an ambulance, and at that point, the officer noticed that Carr had a very strong odor of alcohol on his breath. The ambulance took Carr to the hospital, and the officer finished up his investigation at the scene before stopping by the police station to grab a blood sample kit. He took the kit to the hospital to see Carr because he believed Carr was under the influence of alcohol at the time of the wreck.
Sometime later, the officer was able to speak to Carr. He gave Carr a Miranda warning. Carr admitted to drinking a glass of wine, but he denied being in an accident. He also refused to take any blood alcohol test despite being told that he was under arrest and that a refusal would mean automatic suspension of his license. Carr’s doctor later told the officer that he didn’t believe Carr was in the right frame of mind to consent or refuse, so the officer had hospital staff draw blood. Carr’s blood alcohol level was .202. Carr moved to suppress the results of his blood test because he refused consent to the warrantless blood draw.
Why this case is important: The court held that Carr’s blood draw was constitutional. According to the U.S. Supreme Court’s decision in Schmerber v. California, if a peace officer has probable cause to arrest a driver for an OVI, and exigent circumstances exist, a warrantless blood draw may be taken from the suspect without the suspect’s consent. Here, the officer noted how Carr had slurred speech, acted confused, had a strong odor of alcohol, and admitted to drinking wine. Also, witnesses of the car wreck told the officer that Carr was driving aggressively and erratically, so, under the totality of the circumstances, there was probable cause to arrest Carr for OVI.
Further, the fact that alcohol quickly dissipates in a person’s body creates an exigency that permits a warrantless blood draw from someone who is under arrest (or there is probable cause to arrest) for OVI. Because Carr was taken to the hospital for injuries, and the officer was made to wait before speaking with Carr, an hour had gone by since the accident had been reported. This created an exigent circumstance that the alcohol content in Carr’s body was dissipating, destroying evidence of OVI. These specific circumstances also made it difficult to obtain a warrant. Therefore, the officer was constitutionally permitted to have Carr’s blood drawn without a warrant.
Keep in mind: This case has an almost identical set of facts to the Supreme Court’s case in Schmerber. The holding in Schmerber was based on the specific facts of the case, which involved a suspect who was in a car accident and was rushed to the hospital with injuries. Under these circumstances, it was OK to have the suspect’s blood drawn without a warrant. However, under a different set of facts, a blood draw without consent or a warrant may not be constitutionally permitted, as exigent circumstances may not exist. In fact, the Supreme Court soon will decide Missouri v. McNeely, which will determine if exigent circumstances exist for a warrantless blood draw when a peace officer orders medical personnel to show up at the crash scene and draw the blood of a suspect who refuses consent.
Visit the Ohio Supreme Court’s website to view the entire opinion.