Search warrants for blood draws in Michigan OWI cases

In Michigan, police who want a blood sample from a driver who refuses the evidential test must get a court order, such as a search warrant; the statute bars a test without one but lets the officer seek it.^[1] The Michigan Supreme Court has said that a police-directed blood test falls within the Fourth Amendment, and the US Supreme Court has held that a blood test cannot be done without a warrant simply as an incident of a drunk-driving arrest and that the body's elimination of alcohol does not by itself excuse a warrant.^[2][4][5] This page sets out those rules, how Michigan warrants are issued, and how courts review warrant affidavits.

Michigan's statute: no test after a refusal without a court order

Under MCL 257.625d(1), "If a person refuses the request of a peace officer to submit to a chemical test offered under section 625a(6), a test shall not be given without a court order, but the officer may seek to obtain the court order."^[1] An arrested driver must be advised of this rule.^[9] The Michigan Supreme Court has said that a blood test directed by police falls within the Fourth Amendment, and the Court of Appeals has said that "[w]hen a blood sample is taken pursuant to a search warrant, the issue of consent is removed, and the implied consent statute is not applicable."^[2]

The statute's refusal provisions do not depend on whether a warrant is later obtained: the officer must report the refusal to the Secretary of State, and the suspension follows if no hearing is requested in time or the driver does not prevail.^[10][11][12] See refusing a breath or blood test.

What the US Supreme Court has held

Case	Holding
Schmerber v California (1966)	Upheld a warrantless draw where the officer might reasonably have believed he faced an emergency, noting time had been taken to bring the driver to a hospital and investigate the crash scene.[13]
Missouri v McNeely (2013)	Alcohol's natural metabolism is not a per se exigency; exigency is decided case by case on the totality of the circumstances.[5] Where officers can reasonably obtain a warrant without significantly undermining the search, the Fourth Amendment requires it.[6]
Birchfield v North Dakota (2016)	Warrantless breath tests are allowed incident to a drunk-driving arrest; blood tests are not, and motorists cannot be deemed to consent to a blood test on pain of a crime.[3][4] Nothing prevents police from seeking a warrant when there is time, or relying on exigency when there is not.[14]
Mitchell v Wisconsin (2019), plurality	When the driver is unconscious and cannot be given a breath test, the exigent-circumstances rule "almost always" permits a warrantless blood test; a plurality opinion is not binding precedent.[7]

McNeely also said that the procedures in place for getting a warrant and the availability of a magistrate may affect whether police can obtain one quickly enough.^[6] The sanctions Michigan's statute sets for refusing the evidential test are a license suspension and 6 points.^[11][9] Birchfield's limit on refusal penalties concerned deeming motorists to consent to a blood test on pain of committing a criminal offense.^[4]

How a Michigan search warrant is issued

1. Affidavit on oath. An officer makes an affidavit on oath to a judge or district court magistrate.^[15]
2. Probable cause. The judge or magistrate issues the warrant if satisfied there is probable cause for the search.^[15]
3. Electronic option. The affidavit may be made by electronic means, including fax or computer network, if the judge or magistrate orally administers the oath and the affiant signs; the warrant may be issued electronically and signed from any location in Michigan.^[8][16]
4. Proof of signature. An officer receiving an electronically issued warrant must receive proof that the judge or magistrate signed it before executing it.^[8]
5. Copy to the person. An officer who seizes property under the warrant must give the person a copy of the warrant and a tabulation of what was seized, but need not give a copy of the affidavit.^[17]

The affidavit in the court file is nonpublic until the 56th day after the warrant issues, when it becomes public unless a suppression order is obtained; that does not affect a person's right to request a copy from the prosecutor or police under FOIA.^[18] In a criminal case, the prosecutor must provide any affidavit, warrant and return for a search connected with the case on request.^[19]

The Vehicle Code limits who may draw blood at a peace officer's request to a licensed physician or a qualified person acting under a physician's delegation in a medical environment.^[20] Section 625a(6)(c) speaks of blood drawn "at a peace officer's request"; this page does not state a separate rule for draws under a warrant.^[20] See blood tests in OWI cases.

When the warrant is challenged

To suppress evidence from a warrant obtained with false information, the defendant must show by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless disregard for the truth, put false material in the affidavit and that it was necessary to the probable-cause finding; the same rule applies to material omissions.^[21] In People v Czuprynski (2018), the Court of Appeals said a blood-test warrant should not be invalidated unless material misstatements or omissions necessary to probable cause were made, and that good-faith reliance fails only if the judge was knowingly or recklessly misled, abandoned the judicial role, or the affidavit was "bare bones."^[22]

Two OWI cases show how this works in practice:

• In People v Mullen, the officer's affidavit overstated field-test performance and left out that the driver had paper in his mouth a few minutes before the PBT; the Court of Appeals still found probable cause, given nothing that significantly undercut the 0.15 PBT result and other evidence of intoxication.^[23]
• In People v Robe, the PBT given after about three minutes of observation could not support probable cause; on a second appeal in 2022, an unpublished opinion held the blood-draw warrant was not supported by probable cause without it and remanded to decide whether the good-faith exception applied.^[24][25]

When evidence comes from an unconstitutional seizure, Michigan courts may apply the exclusionary rule; in Lucynski III (2024) the Supreme Court held that it should apply to evidence from an unlawful driveway seizure.^[26] See motions to suppress evidence and probable cause for an OWI arrest.

Blood without a warrant

Several routes to blood evidence do not involve a warrant, each with its own limits:

• Consent. Before an arrest, consent to a blood test is judged under the Fourth Amendment and the Michigan Constitution, not the implied consent statute.^[27] After a lawful draw with consent, withdrawing consent does not stop the analysis.^[28]
• Hospital treatment after a crash. Results of blood drawn for medical treatment after an accident are admissible, and the facility must disclose them to a prosecutor who asks.^[29][30]
• Exigency. Decided case by case under McNeely, with the Mitchell plurality's view for unconscious drivers.^[5][7]

Probable cause alone does not substitute for a warrant. In People v Hyde (2009), where police wrongly told a diabetic driver he had to give blood, the Court of Appeals refused to treat inevitable discovery through a warrant as an exception, saying that doing so "would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement."^[31]

Breath is different

Under Birchfield, a breath test may be taken without a warrant incident to a lawful drunk-driving arrest.^[3] In Michigan, refusing the evidential breath test still carries the implied consent license sanctions.^[11] See Michigan's implied consent law and OWI investigations after a crash.