Reporting by Jacob McCleland of KRCU.
The United States Supreme Court will hear arguments this Wednesday (today) to determine whether police officers can take blood tests from drunk driving suspects without a warrant.
The case springs from a drunk driving arrest in Cape Girardeau in 2010.
Audio will be available later.
The United States Supreme Court will tackle the question of whether or not police must obtain a search warrant prior to conducting blood tests in drunk driving arrests.
The case Missouri v McNeely springs from a drunk driving arrest in Cape Girardeau in 2010, and the Court’s decision must weigh the Fourth Amendment’s protection from unreasonable search and seizure against efforts to stop drunk driving. Justice will hear arguments on Wednesday.
Cape Girardeau County prosecuting attorney Jack Koester, who will represent the state in front of the Supreme Court, said police shouldn’t have to stand around and wait while evidence is being destroyed.
“When a police officer has probable cause to believe someone has committed a drunk driving related crime, it’s objectively reasonable to conclude that the most probative evidence of the crime, will continue to dissipate during the inevitable delay necessary to obtain a search warrant,” Koester said.
It typically takes an officer about an hour-and-a-half or two hours to obtain a warrant. While sitting around, the suspect is metabolizing alcohol and essentially destroying evidence.
The court has ruled that warrantless searches are sometimes permissible outside of drunk driving cases. Police, for instance, can enter a suspect’s home if they believe they hear evidence being destroyed, like drugs flushing down the toilet.
This is similar to a drunk driving arrest, according to Platte County Prosecuting Attorney and Missouri Association of Prosecuting Attorneys president Eric Zahnd, who supports the state.
“The blood is being metabolized by the body really whether the defendant or the suspect wants that blood to be metabolized or not,” Zahnd said. “If we don’t get to it soon enough, it will be gone.”
When the Missouri Highway Patrol arrested Tyler McNeely in 2010, he refused the breathalyzer and a blood test. The arresting officer took him to a hospital, where staff drew a blood sample without a warrant.
By all accounts, this was a run-of-the-mill DWI arrest. Upon hearing the same case, the Missouri Supreme Court ruled special facts, like an injury, need to be present before an officer can bypass the warrant requirement.
The American Civil Liberties Union’s Steve Shapiro will represent McNeely, and he said the state’s interest in drawing blood has to be balanced against privacy interests when the state pokes a needle in somebody’s arm against their will.
“It’s very different than going to the doctor, where you are consenting to a medical procedure and the doctor is performing it in your best interest,” Shapiro said. “Here the state is doing what it is doing over your objection just so it can have an easier time prosecuting you for a crime.”
A lot of this goes back to the 1966 Supreme Court decision Schmerber v California. The drunk driver, Schmerber, was injured during an accident, and it was hours later before police could get a blood test. Under these circumstances, the high court ruled the warrantless blood draw was Constitutional due to exigent circumstances. But that decision led to different interpretations. Some states think it means warrantless blood tests are allowable in all DWI arrests, whereas other states believe police must get a warrant unless it’s an emergency.
Lynn Blais is a law professor at the University of Texas, and she co-authored a brief in favor of McNeely. She said a case-by-case analysis is practical.
“I don’t mean to suggest that a totality of the circumstances evaluation is always easy. But it is always easy for the police to assume they need a warrant. And only in circumstances where there’s a special concern should they even think it will be reasonable for me to proceed without one. That’s not a sort of a routine DUI,” Blais said.
Jack Koester said if the court rules in the state’s favor, fewer drunk drivers will refuse the breathalyzer. But the ACLU’s Steve Shapiro believes the implications go beyond privacy concerns and is a matter of personal dignity.
Follow Jacob McCleland on Twitter: @jacobmccleland