Missouri v. McNeely

Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review). To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 1570 - 1571 (opinion of ROBERTS, C.J.); post, at 1576 - 1577 (opinion of THOMAS, J.).

"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes).

But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced.

As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC

evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556 (describing Missouri's implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination).

It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether. Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order. Cf. Bullcoming v. New Mexico, 564 U.S. ----, ----, 131 S.Ct. 2705, 2710-2711, 180 L.Ed.2d 610 (2011) (noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement's ability to recover BAC evidence. See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36-38 (No. 810852, Oct. 2007).

To be sure, "States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). But wide-spread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not "severely hamper effective law enforcement." Garner, 471 U.S., at 19, 105 S.Ct. 1694.

IV

The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was "sure" a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. Id ., at 39, 41-42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id ., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id ., at 39-40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, "a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant." App. to Pet. for Cert. 43a.

The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances.

358 S.W.3d, at 70, 74-75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.

Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.

Although the Missouri Supreme Court referred to this case as "unquestionably a routine DWI case," 358 S.W.3d, at 74, the fact that a particular drunk-driving stop is "routine" in the sense that it does not involve " 'special facts,' " ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.

Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.

* * *

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The judgment of the Missouri Supreme Court is affirmed.

It is so ordered.

Justice KENNEDY, concurring in part.

I join Parts I, II-A, II-B, and IV of the opinion for the Court.

For the reasons stated below this case does not call for the Court to consider in detail the issue discussed in Part II-C and the separate opinion by THE CHIEF JUSTICE.

As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.

States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.

As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.

Chief Justice ROBERTS, with whom Justice BREYER and Justice ALITO join, concurring in part and dissenting in part.

A police officer reading this Court's opinion would have no idea-no idea-what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.

I

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That language does not state that warrants are required prior to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U.S. 757, 767, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

However, "the ultimate touchstone of the Fourth Amendment is 'reasonableness,'

" Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and thus "the warrant requirement is subject to certain reasonable exceptions," King, 563 U.S., at ----, 131 S.Ct., at 1856. One of those exceptions is known as the "exigent circumstances exception," which "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Ibid. (internal quotation marks and alterations omitted).

Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham City, supra, at 403, 126 S.Ct. 1943, we held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), we held that "[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry 'reasonable.' " And there is a hot pursuit exception to the warrant requirement as well. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), we recognized "the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons." Santana,supra, at 42, 96 S.Ct. 2406. In each of these cases, the requirement that we base our decision on the "totality of the circumstances" has not prevented us from spelling out a general rule for the police to follow.

The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that "law enforcement officers may make a warrantless entry onto private property ... to prevent the imminent destruction of evidence." Brigham City, supra, at 403, 126 S.Ct. 1943 (citing Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)); see also, e.g., King, supra, at ----, 131 S.Ct., at 1856-1857. For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers' warrantless entry into the defendant's home, with the plurality explaining that the drugs "could be quickly and easily destroyed" or distributed d or hidden before a warrant could be obtained at that time of night." 374 U.S., at 40, 42, 83 S.Ct. 1623.

As an overarching principle, we have held that if there is a "compelling need for official action and no time to secure a warrant," the warrant requirement may be excused. Tyler, supra, at 509, 98 S.Ct. 1942. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving.

II

A

The reasonable belief that critical evidence is being destroyed gives rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed.2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception.

And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, including with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22-23 (citing Mo. Ann. Stat. §§ 558.011, 577.010, 577.023 (West 2011) ).

Evidence of a driver's blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a "high BAC," often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x-xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers refuse breathalyzers, as McNeely did here, a blood draw becomes necessary to obtain that evidence.

The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra .

McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant's BAC at the time he was driving. See Brief for Respondent 44-46. But that's not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U.S., at ---- - ----, 131 S.Ct., at 1857-1858. We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant's co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.

The same approach should govern here. There is a compelling need to search because alcohol-the nearly conclusive evidence of a serious crime-is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way.

B

For exigent circumstances to justify a warrantless search, however, there must also be "no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942; see Schmerber, 384 U.S., at 771, 86 S.Ct. 1826 (warrantless search legal when "there was no time to seek out a magistrate and secure a warrant"). In this respect, obtaining a blood sample from a suspected drunk driver differs from other exigent circumstances cases.

Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away. There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical professional. In this case, for example, approximately 25 minutes elapsed between the time the police stopped McNeely and the time his blood was drawn. App. 36, 38.

As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search-critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police-although they may not be able to do anything about it right away-may still be able to respond to the ongoing destruction of evidence later on.

There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 1561 - 1563, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. See, e.g., Ala. Rule Crim. Proc. 3.8(b) (2012-2013) ; Alaska Stat. § 12.35.015 (2012) ; Idaho Code §§ 19-4404, 19-4406 (Lexis 2004) ; Minn. Rules Crim. Proc. 36.01 - 36.08 (2010 and Supp.2013) ; Mont.Code Ann. § 46-5-222 (2012); see generally NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 6-32 ( No. 810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.

III

A

In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509, 98 S.Ct. 1942; see also Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("in order to satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... police officer[s] conducting a search or seizure under one of the exceptions to the warrant requirement ... is not that they always be correct, but that they always be reasonable"); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure").

Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search is reasonable. We have already held that forced blood draws can be constitutional-that such searches can be reasonable-but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U.S., at 770, 86 S.Ct. 1826 (upholding a warrantless forced blood draw but noting the "importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt" as "indisputable and great"). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.

At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, or because the destruction occurs continuously over an uncertain period.

And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood drawn from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital.

B

The Court resists the foregoing, contending that the question presented somehow inhibits such a focused analysis in this case. See ante, at 1567 - 1568. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment "based upon the natural dissipation of alcohol in the bloodstream." Pet. for Cert. i. The majority answers "It depends," and so do I. The difference is that the majority offers no additional guidance, merely instructing courts and police officers to consider the totality of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance.

A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 1563. That is not plausible: Police and prosecutors need warrants in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality's suggestion also overlooks the interest of law enforcement in the protection a warrant provides.

The Court is correct when it says that every case must be considered on its particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.

Schmerber itself provides support for such an analysis. The Court there made much of the fact that "there was no time to seek out a magistrate and secure a warrant." 384 U.S., at 771, 86 S.Ct. 1826. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of evidence, when the officers are in a position to do something about it.

* * *

Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts.

Pursuant to congressional directive, the NHTSA conditions federal highway grants on States' adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater. See 23 U.S.C. § 163(a) ; 23 C.F.R. § 1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g., 32 C.F.R. §§ 234.17(c)(1)(ii), 1903.4(b)(1)(i)-(ii) ; 36 C.F.R. § 4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175.

See Ala.Code § 32-5-192(c) (2010) ; Alaska Stat. §§ 28.35.032(a), 28.35.035(a) (2012) ; Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ark.Code Ann. §§ 5-65-205(a)(1), 5-65-208(a)(1) (Supp.2011); Conn. Gen.Stat. §§ 14-227b(b), 14-227c(b) (2011); Fla. Stat. Ann. § 316.1933(1)(a) (West 2006); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Haw.Rev.Stat. § 291E-15 (2009 Cum.Supp.), §§ 291E-21(a), 291E-33 (2007), § 291E-65 (2009 Cum.Supp.); Iowa Code §§ 321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. § 8-1001(b), (d) (2001); Ky.Rev.Stat. Ann. § 189A.105(2) (Lexis Supp.2012); La.Rev.Stat. Ann. § 32:666.A(1)(a)(i), (2) (Supp.2013); Md. Transp. Code Ann. § 16-205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, § 24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Miss.Code Ann. § 63-11-21 (1973-2004); Mont.Code Ann. § 61-8-402(4), (5) (2011); Neb.Rev.Stat. § 60-498.01(2) (2012 Cum.Supp.), § 60-6,210 (2010) ; N.H.Rev.Stat. Ann. §§ 265-A:14(I), 265-A:16 (West 2012 Cum.Supp.); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); N.D. Cent.Code Ann. § 39-20-01.1(1) (Lexis Supp.2011), § 39-20-04(1) (Lexis 2008); Okla. Stat., Tit. 47, § 753 (West Supp.2013) ; Ore.Rev.Stat. § 813.100(2) (2011); 75 Pa. Cons.Stat. § 1547(b)(1) (2004); R.I. Gen. Laws §§ 31-27-2.1(b), 31-27-2.9(a) (Lexis 2010); S.C.Code Ann. § 56-5-2950(B) (Supp.2011); Tenn.Code Ann. § 55-10-406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§ 724.012(b), 724.013 (West 2011) ; Vt. Stat. Ann., Tit. 23, § 1202(b), (f) (2007); Wash. Rev.Code § 46.20.308(2) -(3), (5) (2012); W. Va.Code Ann. § 17C-5-7 (Lexis Supp.2012); Wyo. Stat. Ann. § 31-6-102(d) (Lexis 2011).

See Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Ky.Rev.Stat. Ann. § 189A.105(2)(b) (Lexis Supp.2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Mont.Code Ann. § 61-8-402(5) (2011); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); Ore.Rev.Stat. 813.320(2)(b) (2011); R.I. Gen. Laws § 31-27-2.9(a) (Lexis 2010); Tenn.Code Ann. § 55-10-406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C-5-7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ----, 728 S.E.2d 155, 167-168 (2012) ); Wyo. Stat. Ann. § 31-6-102(d) (2011) ; see also State v. Harris, 763 N.W.2d 269, 273-274 (Iowa 2009) (per curiam ) (recognizing that Iowa law imposes a warrant requirement subject to a limited case-specific exigency exception).

No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53-54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County that had shorter processing times. Id ., at 70.

Neither party has challenged this determination, which this Court has reaffirmed several times. See, e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ; Winston v. Lee, 470 U.S. 753, 761-763, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985).

Because the Court's position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant's bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost.