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.
Under a line of Supreme Court cases going back more than 100 years, blood, saliva, hair, fingerprints, footprints, etc. are not considered "testimony." Taking any of these things is covered by the Fourth Amendment (unreasonable searches and seizures) not by the Fifth Amendment (self incrimination).
If you refuse to take the test, the officer takes away your license.
The DMV then convenes an administrative hearing to determine whether the revocation should be made for the duration specified by law.
Moral of the story is its always better not to be arrested for a DUI in the first place since it can be very costly and emotionally draining.
I’ve never had that experience.
I would refuse the forced blood draw. They would need to taze me, subdue me, handcuff me, and strap me into the restraint chair. Even then I would be bucking in the chair to make it difficult to get the needle in.
Now, I don’t condone drinking and driving, but 40 minutes may be enough time for your blood to go from “easy DUI conviction” to a “reduced charge.”
Besides, many officers really don’t want to bother with that level of testing. Sometimes, if they take you to the local hospital for testing it can be 2 hours later because you’re a low priority.
In Georgia, by the most strictest of law (letter of the law stuff) they have to take you to 2 separate hospitals for blood testing. but you need a good lawyer to argue that appropriately.
Losing your drivers’ license isn’t the end of the world. Facing felony charges for resisting arrest would be.
The Fed and most States have ruled that 5th amendment privilege does not apply to blood, breath, urine, DNA or even handwriting samples.
In Idaho there is “implied consent” when you receive your driver’s license that you will submit to a blood test. I personally think it’s a crock.
My wife was arrested and put in jail for 13 hours (12.5 hours longer than it took me to bail her out) and she hadn’t had a drop. I know because I was with her all day and was in the car when it happened.
I came close to choking a cop that night after he starting reading my wife her rights. He came close to breaking my arm. We came to an agreement on the hood of my car.
3 months and $20,000 later she was acquitted and the Asst. DA’s were almost disbarred and the arresting office was put on suspension - after he tried to intimidate me outside the doors to the courtroom before my testimony. No joke.
The best thing to do, in my experience, is shut up and ask to be let go or arrested. Then call a DUI lawyer ASAP.
Once the DUI game begins, losing your license can be the easy part.
Not sure we have too many constitutional rights any longer.
Wonder if this blood that is being drawn enters into a dna database or destroyed? Just curious.
“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.”
I’d like to see that RCW. Roadside tests are always voluntary. Implied consent for Breathalyzer only kicks in after you’ve been arrested. Don’t make the cop’s job easier by volunteering anything.
I would then kill the cop, the judge, and every person involved in the process,
Not very often. You throw off ethanol much more slowly than you absorb it and in a hour's time you'd only go down about .01 depending on your size and weight. So that would only matter if you were right at the line when you got arrested. If that was the case I rather argue against the borderline BAC than the refusal that goes along with a blood draw. The fact of refusal goes to the jury and creates a rebuttable presumption of intoxication.
..with a judges search warrant.
even with dashcam video of people falling over, recording slurred speech, etc?
That cops around here run into that attitude frequently and they still get their sample. Every. Single. Time.
i’m seeing comments from others that indicate a different experience than what you are seeing in florida.
Oh, I know. But I would then hunt the cop and his entire bloodline like a feral cat hunts a mouse.
As a nurse, I would never draw blood from a person that does not want to give a sample; cops asking or court ordered. Under the laws of most states (and rulings of medical/nursing boards), performing a medical procedure of any type on a person against their will is considered assault - and a warrant does not absolve one of that legal liability and risk to licensure.
That is the law in Mn. Not sure but I think it might be more than a year here.
Now I have been trying to figure out why did this cop go to all this trouble to get this breathalyzer test? Did he have some ulterior motive? Your comments would be appreciated. I have not had a drink for fifty years and I have never used any kind of prescription or illegal drug either.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.