This article first appeared in the St. Louis Beacon: The U.S. Supreme Court ruled on Wednesday that Missouri couldn’t force a Cape Girardeau man suspected of drunken driving to submit to a blood alcohol test without obtaining a search warrant.
The court ruled 5-4 in favor of Tyler McNeely who was arrested after driving erratically and then forced to submit to a blood test at a hospital after he refused a breath test. The blood test showed he was legally drunk. (Read the Scotusblog file on the case.)
Writing for the fractured court, Justice Sonia Sotomayor said that “the natural metabolization of alcohol in the bloodstream” did not constitute the kind of emergency situation that allows police to conduct quick, warrantless searches to avoid the destruction of evidence.
Cases involving drunken drivers must be decided on a case-by-case basis based on the “totality of the circumstances,” she wrote. A key question is how long it would take to obtain a warrant.
While acknowledging the importance of combating drunk driving, Sotomayor said this was not enough reason to abandon the Fourth Amendment’s requirement that police generally get a warrant before conducting a search.
Justice Anthony M. Kennedy, whose vote was necessary to give Sotomayor her majority, refused to go as far as she, signing on to part of the opinion. Kennedy wrote that local officials still can work out “rules and guidelines that give important, practical instruction to arresting officers.” Those rules might allow blood testing without a warrant “to preserve the critical evidence,” he said.
Tony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri, which helped represent McNeely, said in a statement that he was pleased the court “recognizes that the natural dissipation of alcohol in the bloodstream does not qualify as an emergency justifying a forced blood draw without a warrant.
“Unless there is a true emergency,” Rothert said, “the police must take the time to obtain a warrant, as intended by the Fourth Amendment, which protects us against unreasonable searches and seizures by the government.”
Mothers Against Drunk Driving said a requirement for a warrant would “hamper enforcement efforts against drunk drivers – and, as a result, could lead to more drunk driving and more tragic loss of life.”
The court did not break down along typical liberal and conservative lines. Justices Antonin Scalia and Anthony Kennedy, from the more conservative wing of the court, joined Justices Sotomayor, Ruth Bader Ginsburg and Elena Kagan in the majority.
Justice Stephen Breyer, who usually sides with more liberal justices, instead joined Chief Justice John Roberts’ opinion arguing for clear instructions to police.
“A police officer reading this court’s opinion,” wrote Roberts, “would have no idea — no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunken driving suspect who has refused a breathalyzer test.”
Roberts suggested that police should have to seek a warrant if they can get one before arriving at the hospital, but otherwise would not need a warrant.
In response, Sotomayor said, the chief justice’s rule would lead to “odd consequences.” If an officer stopped a suspected drunken driver near a hospital, there would be no time to get a warrant before arriving at the emergency room.
McNeely was stopped by a Missouri Highway patrolman just after 2 a.m. on Oct. 3, 2010 because he was speeding and veering across the center line. His eyes were bloodshot, his speech slurred, he had alcohol on his breath, and he did poorly on sobriety tests. McNeely admitted to a couple of beers.
McNeely refused to take a breathalyzer, even though that means his license should be suspended. The patrolman took him to St. Francis Medical Center in Cape Girardeau where the patrolman instructed hospital technicians to take a blood sample forcibly. The sample showed that McNeely had a 0.154 alcohol level, above the 0.08 intoxication level.
The patrolman said he had time to get a warrant and had sought search warrants in similar previous cases but decided to seek the blood test without a warrant because he had read that Missouri law had changed.
The Supreme Court decision helps decide a question that has hung over the controversial 1966 decision of Schmerber vs. California. In that case, the court ruled that authorities could force a drunken driving suspect to give a blood sample under some circumstances, such as a traffic accident that delayed the officer at the scene.
The question, which has divided courts around the nation, is whether the natural decrease in the blood alcohol content over time is enough reason alone to obtain a sample without a warrant. Police can ignore the search warrant requirement when there are “exigent” circumstances, such as the imminent destruction of evidence.
The Missouri Supreme Court ruled unanimously that additional factors, over and above the passage of time, must be present to justify a warrantless invasion of the body.
On Wednesday, the U.S. Supreme Court upheld that decision.
Sotomayor pointed out that police are able to obtain warrants more quickly than they could half a century ago. If the court had agreed with Missouri, it “would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions,” wrote Sotomayor.
She concluded: "In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”