The warrantless blood draw here was without exigent circumstances. The state instead relies on state statute, which the court finds a warrantless blood draw from an unresponsive person violates the Fourth Amendment. State v. Osborn, 2019 Mo. App. LEXIS 542 (Apr. 17, 2019) [this is the issue in Mitchell v. Wisconsin being argued April 23d in SCOTUS]:
We construe Birchfield to require us to reject the state’s argument that Missouri’s implied consent laws permit warrantless blood draws from unresponsive subjects in criminal cases, in the absence of evidence establishing an exigent circumstance. Though our own Supreme Court has not directly addressed this issue, it is noteworthy that in State v. McNeely, 358 S.W.3d at 75 n. 9, the Court held that “[b]ecause the warrantless blood draw in this case was a violation of Defendant’s Fourth Amendment right to be free from unreasonable searches, there is no need to address the State’s arguments based on Missouri’s implied consent law.” We also note that other states have similarly concluded that warrantless blood draws from unresponsive drivers in criminal cases cannot be summarily controlled by an informed consent statute. See, e.g., State v. Romano, 369 N.C. 678, 800 S.E.2d 644 (2017) (citing Birchfield in holding that North Carolina’s implied consent law cannot be used to justify the warrantless blood draw of an unresponsive motorist); State v. Havatone, 241 Ariz. 506, 389 P.3d 1251 (Ariz. 2017) (holding that case-specific exigent circumstances are required for warrantless blood draws even when the “unconscious clause” of their law applies); Bailey v. State, 338 Ga. App. 428, 790 S.E.2d 98 (Ga. Ct. App. 2016) (holding that Georgia’s implied consent law does not justify warrantless blood draws of unconscious suspects), rev’d on other grounds by Welbon v. State, 301 Ga. 106, 799 S.E.2d 793 (Ga. 2017). Accordingly, we hold that Section 577.033 does not allow warrantless blood draws of unresponsive drivers in criminal cases unless exigent circumstances are present as required by McNealy.