ID: Without an attempt to get a blood draw SW at night, state can’t claim exigency for not

Defendant was subjected to a warrantless blood draw that should have been suppressed. The officer testified it would have taken 90 minutes to get a warrant then, but he never even attempted to. To claim that as exigency, there essentially has to be an attempt. State v. Townsend, 2016 Ida. App. LEXIS 90 (July 27, 2016):

Here, when analyzing the factors used to determine whether an exigency existed to justify the warrantless blood draw, the district court considered the absence of telephonic and expedited warrants in March 2013. An officer testified by affidavit that it would have taken at least one hour and thirty minutes to obtain a warrant in March 2013. The record indicates, however, that a magistrate was on call to issue warrants, but neither officer attempted to secure a warrant. Thus, while the process would have been delayed, there is no indication the officers could not have reasonably obtained a warrant to draw Townsend’s blood. McNeely makes clear that police officers must obtain a warrant when it is reasonable to do so. For instance, in Sutherland v. State, 436 S.W.3d 28, 40-41 (Tex. Ct. App. 2014), the court concluded that exigent circumstances did not exist because the officer did not attempt to secure a warrant even though a magistrate was available and on call, and aside from the natural dissipation in the defendant’s bloodstream, no other factors demonstrated an exigency in Sutherland.

The State, in response to the absence of an attempt to secure a warrant, argues that this case is similar to Schmerber. In Schmerber, the defendant’s blood was drawn at a hospital following a car accident. Schmerber, 384 U.S. at 758. Two hours passed between an officer arriving at the scene of the accident, where the officer first saw the defendant, and when the officer again saw the defendant in the hospital. Id. at 769. The Court noted that the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.'” Id. at 770 (quoting Preston v. United States, 376 U.S. 364, 367 (1964)). Ultimately, the Court concluded that the warrantless blood draw was appropriate because “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident” and “there was no time to seek out a magistrate and secure a warrant.” Schmerber, 384 U.S. at 770-71 (1966). Here, because the anticipated minimum time to obtain a warrant in the present case was one hour and thirty minutes (not much less time than the time that elapsed in Schmerber), the State argues that the officer in this case also did not have time to secure a warrant. However, this case is different from Schmerber because the factors the Court emphasized there included the time spent transporting the defendant to the hospital and the time the officer spent investigating the scene of the accident: “Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id. Here, Townsend was not transported to the hospital, nor did the officer need to investigate the scene of an accident because no accident occurred.