Posted on 01/09/2013 10:39:07 AM PST by Theoria
The U.S. Supreme Court hears arguments Wednesday in a case testing whether police must get a warrant before forcing a drunken driving suspect to have his blood drawn.
The court has long held that search warrants are ordinarily required when government officials order intrusions into the body — intrusions like drawing blood from an unwilling individual. The court has reasoned that such intrusions amount to a bodily search and thus are covered by the Fourth Amendment's warrant requirement. But the court has also ruled that there are exceptions to that requirement in what are called exigent situations — emergencies. And Wednesday's case tests how broad the definition of an emergency may be.
The case began in Missouri in 2010. Tyler McNeely was driving 56 mph in a 45 mph zone at 2 a.m., when he was stopped by state highway Patrolman Mark Winder. The officer administered four field sobriety tests. McNeely failed all of them, and when he refused to submit to a Breathalyzer test, he was arrested and taken to a hospital, where he also refused to allow his blood to be drawn. Although Winder had gotten warrants in the past without difficulty in such situations, he did not try to get one this time. He ordered the blood drawn. It showed a blood alcohol level well above the legal limit, and McNeely was charged with driving under the influence.
At trial, though, the judge threw out the blood test because it was obtained without a warrant. The Missouri state Supreme Court unanimously agreed, noting that there were no events that would have interfered with getting a warrant — there was no accident to investigate, no injury requiring medical attention, and a judge was on call to review a warrant application quickly. The state court said that under these circumstances, there was no justification for failing to get a warrant before forcing an unwilling suspect to have his blood drawn.
The state of Missouri appealed, contending that because alcohol dissipates in the bloodstream over time, that alone constitutes an emergency situation that justifies forcing a blood draw without a warrant.
"Our main point is that under the exigent circumstances exception, when we know for certain that important, reliable, evidence is in the process of being destroyed, a search warrant is not necessary because, during any delay to obtain a search warrant, you are allowing the best evidence of the crime to dissipate and be destroyed," says John Koester, assistant prosecuting attorney for Cape Girardeau, Mo. The state also maintains that in these circumstances, a warrantless blood draw is "a minimal intrusion."
But Steven Shapiro of the American Civil Liberties Union, representing McNeely, counters that alcohol dissipates over a matter of hours, and that here, where there was no emergency that could have interfered, a warrant could have been quickly obtained.
The arresting officer testified that he had never had problems getting warrants in the past. In fact, he testified that the only reason he didn't get a warrant was that he had seen an opinion from the state prosecutor's office saying that they were unnecessary in routine cases. That contradicted an opinion from the county attorney's office and a state police legal advisory.
The ACLU's Shapiro explains the reason for the warrant this way: "For the police to order medical professionals to put a needle into your arm and take blood is a fairly significant ... intrusion on your privacy and your bodily integrity. And that ought not to be a decision that the police are making without review by a judge."
Indeed, he observes, warrants can and were obtained in other cases in a half-hour or less, and a majority of states do require such warrants. He also notes that McNeely's refusal to agree to the blood test can have adverse consequences for the accused, since the refusal can be used as evidence against him at trial.
The Obama administration, however, backs up Missouri in its contention that the need for quick blood-alcohol testing outweighs any individual privacy interest. Time, the government argues, is of the essence, since a person's blood alcohol starts to dissipate after he or she stops drinking.
The government notes that in 2010, more than 10,000 people were killed in motor-vehicle accidents that involved alcohol-impaired drivers. That is one death every 51 minutes.
‘California weed’ apparently.
They will allow the ‘search’ without consent.
After their earlier upholding of HealthControl, the United States is a totalitarian state as defined in conventional political science. The rest will follow.
http://www.thefreedictionary.com/totalitarian+state
Make em get a warrent. If the police feel they don’t need one for a DUI case, they may expand it to other areas where a warrent is now required.
Truly it’s immaterial in almost every place I am aware of, because they have laws on the books if you don’t give a sample, automatic penalties and suspensions kick in, so it’s not like they are going to be able to somehow skirt negative consequences if they don’t give a sample.
Isn’t the failure of 4 field sobriety tests enough?
The penalty for not taking the test is usually worse than failing the test....at least for the first offense.
Here in Washington State a refusal to perform routine roadside tests or submit to a blood test automatically causes your drivers license to be suspended for six months.
In fact you can’t force one. There are legal solutions to make people agree to a test. For example, in Russia refusal to take a sober test is an offence itself, punished by suspension of driver’s license for a year or so.
Every state has “implied consent” laws - when you get a drivers’ license, if you’re arrested for drunk/drugged driving, you give consent to have a breath/blood/urine test administered to determine if you were intoxicated. You have no legal right to condition taking the test on your lawyer showing up. Driving is a privilege and not a constitutional right.
Here in Florida, you can refuse the blood test, but you have to give up your license at that point........
Here in Indiana the police routinely get a warrant for a forced blood draw if someone refuses the breath test. It only takes about 40 minutes.
I agree on implied consent, but I assert that the implied consent only applies to retention of the right/privilege of driving.
There is still such a thing as the 5th amendment, and you cannot remove that without 3/4 of the states ratifying an amendment to repeal it. IOW, you can refuse, but they can’t forcibly take your blood. If you refuse, they can take away your privilege. If it is practiced to the contrary, then we are subject to future diminuation of other rights willy-nilly in the name of “this or that [usually, the ‘chilrun’]”
If you can buy a decent DUI lawyer the best thing is to say and do nothing. Let them take you to jail. Be polite, even helpful, but say nothing.
When the D.A. sees that the video shows you not admitting to drinking and that you would not volunteer to any tests (any) then there is very little evidence to convict. Often, the D.A. will either reduce the charge or throw it out.
It will cost money, but less money than it would otherwise. A DUI is a big problem whether you’ve been drinking - or not (as was the case with my wife, no joke). Once the officer pulls you over and decides that you have been drinking and driving it’s time to just shut up and wait for the ride to the station - then call that lawyer.
“Anything you say or do may be used against you in a court of law.”
Nope..not really
DUI lawyers recommend not doing the field sobriety tests and or breathalyzer....ESP if you have prior DUI convictions. Harder to convict...and....most states usually give some type of restricted license during the automatic suspension period
In Florida...half of all DUI arrests end up with no conviction
Nope..not really
DUI lawyers recommend not doing the field sobriety tests and or breathalyzer....ESP if you have prior DUI convictions. Harder to convict...and....most states usually give some type of restricted license during the automatic suspension period
In Florida...half of all DUI arrests end up with no conviction
What happened to the 5th Amendment and not being forced to give testimony against yourself?
What happened to the 5th Amendment and not being forced to give testimony against yourself?
Yeah, in most states. But, I don't think MO called for the whole taking the blood without a warrant issue. Sure, the license is revoked, but you didn't agree to have part of your body taken away, nor searched.
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