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.
Keep a vial of blood handy in case you’re pulled over. Problem solved!
Of course they do, they work daily at rendering the entire Bill of Rights moot. They've been so successful at destroying the 4th Amendment that its existence is barely even mentioned any longer.
I'm pretty sure they would have to shoot me. No one sticks a needle in my arm. No one.
FMCDH(BITS)
the concept of “implied consent” is one of the more evil ideas to come out of our police state.
Refusal to Take the Test is the offense. Kinda hard to get out of that.
I ask this because I was falsely suspected of intoxication a fewdays ago.
All three Emergency Rooms in my county have dedicated fax machines with speed dials to the judges’ homes. If the cops have a DUI suspect who refuses the breath test, or the cops suspect controlled substances, judge has a fax of a probable cause affidavit in front of them in about 10 minutes. The warrant is faxed back to the ER about 5 minutes later.
Although it might involve waking up a judge at 3:00 a.m., it’s pretty much a rubber-stamp procedure. By the way, the judge doesn’t like being woken up at 3:00 a.m. and remembers that when the case goes to Court.
In Indiana, as noted in a couple posts above, they routinely do the warrant for blood draw. Refuse everything, and you get the one year license suspension under implied consent for the refusal. Then they also get the search warrant for the blood draw and get the evidence they need to convict anyway. The license suspension for the conviction for DUI is by law stacked on top of the one year suspension for the refusal.
Don’t refuse the test. Better than that, don’t drink and drive.
I was actually including breathalyzer as a roadside test. I don’t think I’ve ever heard of anyone refusing to do the physical tests, although I suppose some have. Sorry for the confusion. Refusal to take either a breath or blood test will get a six-month suspension.
Officer said that she crossed the yellow line. His car video that was shown in court proved that she did not.
He says that was the reason for the pull over. Once pulled over he asked if she had been drinking and she said, “no.”
He asked her to do a road side test and she passed. He even admitted during the trial that she passed.
He then arrested her for DUI.
It was that simple.
Well, after the fourth policeman shot me with his taser, I gave them a urine sample. My pants filtered it, somewhat.
Not really.
The road-side test is designed specifically so that the person fails. All DUI judges know that. It’s the first argument laid out by a decent DUI lawyer to argue that the test is biased and unfair and should get tossed out.
Refusing to take the road-side test while also refusing that you have been drinking will get you a ride to jail, but doesn’t mean that the charge will get filed by the DA.
However, if you are too drunk to talk or walk then you’re in a different boat.
In GA there is a simple court filing within the first.... 2 days or something - it’s pretty quick - and you get your license back. If you wait after that then you aren’t going to get it back until after the trial (if you’re acquitted).
At least on the first DUI. Dunno about after that.
They do in Las Vegas. If you refuse they will tackle you to the floor, pin you down and stick a needle in your arm.
Thats what they did to me.
I was just going to Walmart to get some taco shells.
Welcome to the police state.
In North Carolina, refusing to take the test results in a Refusal to take the Test charge.
here is New jersey
Interesting.
I’d take that over a DUI... ;)
With a DUI, you can get limited driving privileges. With a refusal, you can’t. In NC anyway.
“With a DUI, you can get limited driving privileges. With a refusal, you can’t. In NC anyway.”
That says a lot about how biased the road-side test is.
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