South Carolina law permits law enforcement to draw a blood sample from a suspect in a felony DUI case (meaning the impaired driver caused death or great bodily injury). Also, in misdemeanor DUI cases, law enforcement can obtain a blood sample where the person is unable to provide a breath sample because the person (1) is unconscious, (2) is dead, (3) has an injured mouth, or (4) for any other reason considered acceptable by licensed medical personnel. The enforcement of these laws may change because of the recent United States Supreme Court decision in Missouri v. McNeely.
In McNeely, the US Supreme Court ruled that law enforcement must generally obtain a search warrant before having blood drawn from a person suspected of DUI in order to test that person’s blood alcohol content (BAC). Whether a warrant is required “must be determined case by case based on the totality of the circumstances.” If blood is now drawn without a warrant, the court will be required to decide if the warrant could have been obtained “within a reasonable amount of time” or if doing so would cause too much delay when the person’s alcohol content is falling due to processing in the person’s system. Essentially, The McNeely Court weighed a criminal defendant’s right to privacy with the need for law enforcement to secure evidence.
It is uncertain at this time exactly how the McNeely opinion will affect South Carolina law, but it will assist a defendant’s criminal defense lawyer in ensuring that the defendant’s 4th Amendment rights are not violated.