This article first appeared in the St. Louis Beacon, Jan. 9, 2013 - WASHINGTON – When a Missouri highway patrolman stopped a driver for speeding in Cape Girardeau at 2:08 a.m. on Oct. 3, 2010, he couldn’t have anticipated that the blood-alcohol test he ordered without the driver's consent would be challenged all the way to the U.S. Supreme Court.
That’s where the Fourth Amendment implications of the case, Missouri vs. Tyler G. McNeel, were argued on Wednesday, with justices focusing on whether -- or under which circumstances – police officers should be allowed to forcibly order blood-alcohol tests on drunk-driving suspects without first obtaining a warrant.
During the hour-long oral arguments, justices aggressively questioned lawyers representing the state of Missouri, the U.S. solicitor general’s office, and the American Civil Liberties Union legal director, who argued the defendant’s position in the case. The court will issue its ruling later.
“In the course of a drunk-driving investigation, quickly securing blood alcohol evidence with as little delay as possible is incredibly important,” asserted John N. Koester Jr., an assistant prosecuting attorney in Jackson, Mo., who argued on behalf of the state. He said, “The closer a chemical test is taken to the time of driving, the more reliable the evidence of intoxication is.”
Koester and U.S. Justice Department attorney Nicole Saharsky contended that allowing police to order a blood drawing without a warrant in such cases would help in the nationwide crackdown on drunk driving. That’s because a delay in testing a suspect’s blood allows the alcohol content of the blood to go down – what Saharsky called “certain destruction of blood-alcohol evidence.”
But ACLU legal director Steven R. Shapiro argued that “the issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent. Missouri’s answer to the question is yes, even in routine DWI cases like this, and regardless of how quickly and easily a warrant could be obtained.”
The line of questioning by justices Wednesday indicated that the court was leaning toward coming down somewhere in the middle: unlikely to give blanket approval to police-ordered blood sampling without a warrant, although possibly allowing such tests under certain circumstances if officers at least try to get a warrant.
The Fourth Amendment protects the “right of people to be secure in their person . . . against unreasonable searches and seizures” and also stipulates that warrants should not be issued unless there is “probable cause.”
In 1966, the Supreme Court ruled, in Schmerber vs. California, that officers could force a drunken driving suspect to give a blood sample under some circumstances. The question, which has divided courts around the nation, is whether the dissipation in blood alcohol content over time is enough reason to obtain a sample without a warrant – or whether other circumstances, such as a traffic accident, must be involved.
“How can be it reasonable to forego the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” asked Justice Sonia Sotomayor during Wednesday’s session.
Noting that breathalyzer tests “have a different intrusion level” and are much more widely used than blood tests, Sotomayor expressed concern that, if the court accepted Missouri’s argument, it would “put sort of a print, the court’s print, on: Use the most intrusive way you can to prove your case.”
Suggesting a possible path the court might take in its decision, conservative Justice Antonin Scalia asked whether the determination of how long it would take to get a warrant might be made “case by case.” He added: “If it would have taken too long, then it's OK without a warrant. If it wouldn't have taken that long, it's bad.”
But Scalia also pressed Shapiro: “Is this a lot of sound and fury, signifying nothing? What advantages do you think your client would really get from the warrant requirement other than the delay that would entail allowing his blood alcohol to reduce itself?”
Shapiro responded that the court’s Fourth Amendment jurisprudence “rests on the proposition that the privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the state does something as intrusive as putting a needle in somebody’s arm.”
Case involved arrest, blood test in Cape Girardeau
While the Fourth Amendment implications are in dispute, the basic facts of the case are not. When the Missouri highway patrolman questioned the driver of the vehicle that had been speeding, he noticed signs that McNeely might be intoxicated and asked him to take the standard physical sobriety test.
When McNeely refused to submit to a breathalyzer test – both at the scene and, later, in the police car – the officer drove him to the nearest hospital in Cape Girardeau and, without getting a warrant, ordered that a blood sample be taken. That sample indicated that that McNeely had a .154 blood alcohol level, above the .08 legal intoxication level.
A trial judge later threw out the blood test result because of the absence of a warrant. An appeals court reversed the decision, but the Missouri Supreme Court ruled unanimously that the blood test was inadmissible without a warrant. So the state, supported by the federal government’s solicitor general, appealed the case to the U.S. Supreme Court.
McNeely did not attend Wednesday’s oral arguments in Washington. But his attorney, Stephen C. Wilson of the Wilson & Mann L.C. firm in Cape Girardeau, accompanied the ACLU’s Shapiro in the Supreme Court session.
In an interview after the oral arguments, Wilson said the drunk-driving case from 2010 is still pending in the local courts until the legal dispute about quashing the blood-test evidence is resolved. He said Cape Girardeau had procedures in place for a relatively quick issuance of a warrant, even in the wee hours of Sunday morning.
Koester contended, however, that it likely would have taken 90 minutes to two hours to get a warrant that night.
Wilson told reporters he was not surprised that the U.S. Supreme Court agreed to review the case.
“The state of Missouri made a conscious effort to try to force their way into this” case, Wilson said. “This is something that Missouri has been plotting and planning” for a long while.
“When I saw what was going on,” Wilson said, he decided to ask the ACLU if it would “come to the aid of a poor struggling client and a country lawyer.”
During the oral arguments, Justice Anthony M. Kennedy expressed skepticism that the time it would take to obtain a warrant would lead to a dilution of evidence. He said about half of the states do not allow the extraction of such blood samples without a warrant and have procedures to streamline the process of getting one.
Justice Stephen G. Breyer also questioned why, if the process is streamlined, it would take more than a few minutes to apply for a warrant. And Justices Elena Kagan and Ruth Bader Ginsburg suggested that there may be approaches that would maintain a blanket requirement for warrants but also allow blood-test exceptions in cases in which police officers make a reasonable attempt but fail to get a timely warrant.
Koester and Saharsky emphasized that drunk driving continues to be a serious national problem, with more than 10,000 deaths reported in 2010 from auto accidents involving drivers impaired by alcohol.
Missouri and the other 49 states have “implied-consent” laws that require drivers arrested on suspicion of driving while intoxicated consent to a blood alcohol test. Refusal to do so generally leads to suspension of a driver's license. Drivers in Missouri who refuse to take either a breathalyzer or blood test can have their licenses suspended for a year.
After the oral arguments, Shapiro told reporters that the case has national significance. “I’m certainly concerned that a ruling for [Missouri] in this case would open the door to warrantless blood withdrawals in other states,” he said.