Drunk Driving and the Supreme Court: Should Blood Tests Require Warrants?

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Missouri, known for their proud motto as “the show me State,” apparently wants to “show” the rest of us what it thinks of an individual’s bodily integrity, basic freedoms and civil rights. As a Fort Lauderdale criminal defense lawyer, I find this to be shocking, how far Missouri police and prosecutors are attempting to go in opposition to an individual’s constitutional rights and freedoms, at least as respects the individual’s own body. In Missouri, you’re apparently not free to keep your own blood, and the State of Missouri thinks they have a right to “show” prosecutors and judges what’s running through your veins — forcibly drawing your blood at a local hospital, just because some officer suspects you’re drinking and driving:

Drunk Driving and the Supreme Court: Should Blood Tests Require Warrants?

The Supreme Court will hear a case today about a Missouri man who says his constitutional rights were violated when he was pulled over after drinking beer at a bar called Slinger’s and forced to take a blood test without a warrant.

The man, Tyler G. McNeely, was stopped in October 2010 by Cpl. Mark Winder of the Missouri State Highway Patrol for speeding. Winder immediately noticed signs of intoxication including bloodshot eyes, slurred speech and a strong odor of alcohol.

McNeely admitted that he had consumed beer, but he would not consent to an alcohol breath test or a blood test after he was arrested for driving while intoxicated.

Winder, without getting a warrant, decided to take McNeely to the hospital for a blood test to secure evidence of intoxication.

That nonconsensual blood test — considered a “search” in legalese — is at issue in front of the Supreme Court, which is expected to clarify when and under what circumstances a warrantless search can occur in such cases.

In court papers, lawyers for Missouri say that Winder didn’t attempt to obtain a search warrant prior to the blood test in part because, “Obtaining a search warrant in the middle of the night in Cape Girardeau County involves a delay, on average, of approximately two hours.”

Winder was concerned about the rate of elimination of alcohol in the bloodstream, which diminishes over time.

It turns out McNeely’s blood alcohol level was 0.154 percent, well above the legal limit of 0.08 percent . In court, McNeely moved to suppress the evidence against him, saying his constitutional rights against unreasonable search and seizure were violated.

A trial court ruled in favor of McNeely, finding that while there are exceptions to obtaining a warrant in such circumstances, including endangerment of life, and the destruction of evidence, McNeely’s case fell outside of those exceptions. The court said that the natural dissipation of alcohol in the bloodstream alone was not a sufficient factor to justify a warrantless blood draw in a routine stop.

The case eventually landed at the Missouri Supreme Court, which affirmed the trial court’s judgment.

Now the Supreme Court will hear an appeal to the Missouri ruling. At issue is a 1966 Supreme Court case, Schmerber v. California. In that case — involving an alcohol related arrest — the Court provided some exceptions to the warrant requirement for the taking of a blood sample.

The holding was limited to certain “special facts” that might have led the officer in that case to believe he was faced with an emergency situation in which the delay in obtaining a warrant could be interpreted as the destruction of evidence. Lower courts have interpreted Schmerber differently.

Attorneys for Cape Girardeau County, Mo., argue in court papers that “allowing a police officer to obtain a warrantless blood test from a drunk driver strikes a favorable balance between legitimate law enforcement interests and the privacy interests of the individual.”

They say: “Although the dissipation rate will vary from person to person, one simple fact cannot be refuted — during a drunk driving investigation the best and most probative evidence of the crime is being lost at a significant rate.”

They say motorists have a diminished expectation of privacy, the officer had probable cause to arrest McNeely, and the “search” was conducted in a reasonable manner.

Thirty-two states have filed a brief supporting Missouri and urging the Supreme Court to adopt a rule allowing warrantless blood draws in every drunk-driving investigation.

“The States’ interest in fairly and accurately determining guilt or innocence for this serious crime outweighs an individuals’ interest in avoiding the slight intrusion involved in halting that evidence destruction by obtaining a blood sample,” they write in a friend-of-the-court brief.

The ACLU is representing McNeely in the case and it argues that the Supreme Court should not adopt a general rule without consideration for specific circumstances in every case.

“The issue in this case is whether the police can compel a warrantless blood test in every DWI case,” writes Steven R. Shapiro of the ACLU in court papers.

Shapiro notes that different states have different procedures for obtaining search warrants and that it has become common for some states to permit telephonic warrant applications.

He argues that whether a warrantless blood test is unreasonable should be determined based on the totality of the circumstances that include: whether there was anything that delayed the officers at the arrest scene, whether there was more than one officer at the scene, how far police have to travel to a hospital, and how long it typically takes to obtain a warrant in that jurisdiction.

Shapiro writes that Missouri “overstates the need for warrantless blood tests, and understates the affront to personal privacy and dignity when the States override an individual’s objection and sticks a needle in his arm.”

Groups such as Mothers Against Drunk Driving (MADD) want the Supreme Court to reverse the decision of the Missouri Supreme Court, which they say, “threatens to hamper enforcement efforts against drunk drivers — and, as a result, could lead to more drunk driving and more tragic loss of life.”

The group notes that in 2010, 10,228 people died as a result of drunk driving.

“Any delay in obtaining a blood alcohol content (BAC) reading not only risks the destruction of evidence that can never be recovered, but also opens a window that defendants can use to poke holes in a prosecution,” MADD said in a court brief in support of Missouri.



About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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