The South Dakota Supreme Court will hear a drunk driving appeal Tuesday that could change the way officers make DUI arrests.
Because of a US Supreme Court decision last year a repeat South Dakota drunk driver is now arguing that his constitutional rights were violated when he was arrested in 2008.
During every drunk driving arrest in South Dakota booking officers draw blood from the driver as evidence to determine the driver's blood alcohol content when he or she was behind the wheel.
"I believe the McNeely case would say they should try to get a warrant," Donovan Siers attorney Mark Kadi said.
Kadi will be representing Donovan Siers in front of the South Dakota Supreme Court Tuesday. Siers is in prison after he was convicted of his third DUI in 2009. He refused to give law enforcement his blood but they took it anyway.
"In this case Mr. Siers maintains that he was forcibly put into a chair, strapped in and blood was drawn without his consent by force," Kadi said.
In a case known as Missouri v. McNeely the US Supreme Court said officers can't do that - instead they must get the suspect's consent or get a warrant.
But South Dakota Attorney General Marty Jackley argues Siers' case happened four years before that decision.
"The issue in that case is whether or not the recent United States Supreme Court decision can affect that case. It's a case that arose before that decision, so it's whether or not that decision will have a retroactive effect or apply to all cases," Jackley said.
Kadi says the appeal could possibly affect nearly 400 cases in South Dakota. Jackley maintains that the state's current practice is constitutional.
"If you drive on our roads in South Dakota and you give actions that give rise to a belief, or probable cause, that you've been drinking you have to subject yourself to a blood test. That's what our legislature and governor have put into law," Jackley said.
A law that will be examined by the justices of the South Dakota Supreme Court Tuesday.
Kadi also argues that officers can obtain warrants easier now through text messages, emails, and phone calls.