On Aug. 20, the Idaho Supreme Court heard oral argument in State of Idaho v. Micah Abraham Wulff. The Wulff case involves the admissibility of evidence obtained via a warrantless blood draw after Micah Wulff was taken into custody under suspicion of driving under the influence.

The Supreme Court of the United States examined the issue of warrantless blood draws in Missouri v. McNeely, in which the court held that the natural metabolism of alcohol in the bloodstream does not constitute a per se exigency sufficient to justify an exception to the Fourth Amendment’s search warrant requirement for non-consensual blood testing in DUI cases. The court, therefore, declared that a case-by-case analysis of exigency must be determined based on the “totality of the circumstances.”

The district court in Wulff cited McNeely to find that warrantless blood draws are not always permitted under Idaho’s implied consent statute. Prior to McNeely, Idaho case law relied upon both the “exigent circumstances” and the “implied consent” justifications for warrantless blood draws.

Wulff raises the question as to whether implied consent alone is a sufficient justification, especially where there is explicit denial of consent at the time of the traffic stop.

The state’s argument is therefore premised on the implied consent, while Wulff’s position is that implied consent is an unconstitutional condition that requires waiver of constitutional rights simply for utilizing public roads.

It is important to keep in mind, however, that this is not a situation where the only options are to conduct a warrantless blood draw or let the suspect go. If there is probable cause to detain the subject for the blood draw, then there should be sufficient probable cause to obtain a warrant for the blood draw, rendering the Fourth Amendment problem moot.

It is my understanding that there are already systems in place in places like Ada County, where a police officer can contact the on-call prosecutor who can contact the on-call magistrate judge, who can issue a warrant telephonically.

Because technology makes such interactions possible within a fairly short timeframe, it seems that a failure to execute the process to obtain a warrant is a problem of the state’s own making, and as such it should be decided against the state. We will soon see if the Idaho Supreme Court agrees.