On April 17, 2013, the United States Supreme Court decided Missouri v. McNeely, which held that in most circumstances when an individual arrested for DUI refuses to provide consent to provide a blood sample a warrant will be required before police may draw blood from an individual.  The holding in Missouri v. McNeely is applicable to all States.  That said, how does the Court’s recent holding in Missouri v. McNeely impact cases that are currently being prosecuted or appealed?

The United States Supreme Court in Griffith v. Kentucky answered that question.   When the United States Supreme Court speaks on constitutional principles, those holdings automatically apply to all cases that are not yet final.  In Griffith v. Kentucky, 479 U.S. 314, 323 (1987), the Court stated:

As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule.  But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final.  Thus, it is the nature of judicial review that precludes us from “[simply] fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and than permitting a steam of similar cases subsequently to flow by unaffected by that new rule.”

Second, selective application of new rules violates the principle of treating similarly situated defendants the same.  As we pointed out in United States v. Johnson, the problem with not applying new rules to cases pending on direct review is “the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary” of a new rule.  Although the Court had tolerated this inequity for a time by not applying new rules retroactively to cases on direct review, we noted: “The time for toleration had come to an end.” (Citations omitted).

As a result, individuals charged with driving while intoxicated (DWI or “drunk driving”) or driving under the influence (DUI) of drugs or controlled dangerous substances who had blood drawn in the absence of their consent and without a warrant whose cases are/were pending on April 17, 2013 are governed by the holding set forth in Missouri v. McNeely.

Mark W. Catanzaro and Daniel M. Rosenberg are defense attorneys who practice criminal and civil law in New Jersey, New York and Pennsylvania.   Mr. Catanzaro and Mr. Rosenberg provide legal assistance and defense to individuals charged with crimes, felonies, offenses, misdemeanors and quasi-criminal actions, including driving while intoxicated (DWI or “drunk driving”) and driving under the influence (DUI) of drugs or controlled dangerous substances.  For legal assistance or representation, Mr. Catanzaro and Mr. Rosenberg can be contacted at (609) 261-3400.