Defendant was stopped on the B-W Parkway in Maryland for suspicion of DWI and was taken to the hospital for an involuntary blood draw. McNeely was decided after it happened, and it is found retroactive to pending cases. This case is controlled by McNeely. Because no court applied Davis good faith to McNeely\u2019s case, this court wouldn\u2019t here. Motion to suppress the blood test is granted. United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013):<\/p>\n
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The government asserts that this case falls within the exigent circumstances exception. Specifically, it points to the 30 minute delay in the taking of the defendant’s blood due to the defendant’s failure to cooperate with the breath test at the station. The Court does not find that said delay combined with the natural dissipation of blood-alcohol brings this case within the exigent circumstances exception. This is simply not a case where the exigencies of the situation were so compelling to excuse the need for a warrant. Officer Weisbaum described this incident as a “routine” DWI stop. While this alone does not mean a warrant is required, it is a “special fact” to be considered. See McNeely, 133 S.Ct. at 1568. Additionally, unlike Schmerber, time did not have to be taken to investigate an accident or attend to the suspect’s personal injuries. There was nothing about the defendant’s physical or mental condition, or behavior, which required the expenditure of time in addition to what would normally be expended in a routine DWI stop. Officer Weisbaum testified that it is common for defendants to at first agree to cooperate with the breath test and then not blow sufficiently, resulting in a failed test. The Court does not find that the totality of the circumstances present in this case constitute such an emergency to excuse the officer from obtaining a warrant prior to the taking of the defendant’s blood. Given that the defendant did not consent to the blood test, the Court finds the taking of his blood was in violation of the Fourth Amendment.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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