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State v. Blank4/30/2004
d 1356, 1364 (1984) ("[T]he warrantless seizure of the appellant's alcohol-laden breath is valid either as a search incident
to arrest or a search necessitated by exigent circumstances; i.e., the evanescent nature of the alcohol in appellee's [sic] bloodstream."); State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn.Crim.App.2001) ("Based upon the fact that evidence of blood alcohol content begins to diminish shortly after drinking stops, a compulsory breath or blood test, taken with or without the consent of the donor, falls within the exigent circumstances exception to the warrant requirement."); Aliff v. State, 627 S.W.2d 166, 170 (Tex.Crim.App.1982) (because "alcohol in blood is quickly consumed and the evidence would be lost forever," the warrantless taking of blood does not violate the Fourth Amendment); Tipton v. Commonwealth, 18 Va.App. 370, 444 S.E.2d 1, 3 (1994) ("[E]xigent circumstances existed due to the dissipating nature of alcohol in the blood."); Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465, 469 (1987) overruled on other grounds by State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) (Warrantless administration of blood-alcohol test did not violate plaintiff's constitutional rights based on "destruction of evidence" exception to the warrant requirement).
First, the physiological basis for the rule--the relatively rapid elimination of alcohol from the body--is beyond dispute. The rule is easy for the police officer in the field to understand and follow. It eliminates difficult and often undeterminable questions--and litigation of those questions--as to whether a warrant application might have been prepared and presented to a judge in time for a warrant to have issued and a test conducted before alcohol levels were diminished beyond the limits of reliable testing.
Second, we adopted a categorical approach to body alcohol evidence under an exigent circumstances exception in Anchorage v. Geber. [FN2] There we rejected an argument that the defendant had a right to have counsel present during field sobriety tests that were conducted at the police station after the defendant had already been arrested. [FN3] She argued that the right to counsel at such tests was analogous to the right to have counsel present at a pre-indictment line-up. We had recognized in Blue v. State [FN4] that the latter right was subject to an exigent circumstances exception--"unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation." [FN5] In Geber we rejected the defendant's right to counsel argument categorically, without examining whether under the particular facts of the case the presence of counsel at the police station could have quickly been secured. We stated:
FN2. 592 P.2d 1187 (Alaska 1979).
FN3. Id. at 1192.
FN4. 558 P.2d 636 (Alaska 1977).
FN5. Geber, 592 P.2d at 1191 (quoting Blue, 558 P.2d at 642).
Field sobriety tests are used to determine whether a suspect has used alcohol and, if so, the degree to which his mental and physical skills have been impaired. It is common knowledge that one's ability to perform such tests is influenced by the percentage of alcohol in his or her blood, and that that percentage diminishes with the passage of time. Such being the case, *166 if the tests are to provide any real indicator of the degree of impairment, if any, existing at the time of the alleged offense, they must be performed as soon thereafter as possible. This fact alone distinguishes such cases from the usual lineup situation ..., where the passage of a few hours would have little or no effect.[ [FN6]]
FN6. Id.
Geber's categorical, rather than case-by-case, treatment of diminishing alcohol-related evidence
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