-Submitted by David Drumm (Nal), Guest Blogger
This case, recently argued before the U.S. Supreme Court, involves a Missouri state highway patrolman who stopped McNeely’s truck for speeding at 2:08 a.m. The officer noted signs of intoxication and ordered McNeely out of the vehicle and performed a field sobriety test. McNeely performed the tests poorly and was placed under arrest. McNeely refused to consent to a breathalyzer test and was driven to a local hospital where blood was drawn without consent and without a warrant. The results of the blood test showed that McNeely’s blood-alcohol ratio was over the legal limit.
McNeely moved to have the blood test results suppressed as a violation of his Fourth Amendment rights, and the trial court sustained the motion. The case was appealed to the Missouri Supreme Court (en banc) and the trial court’s decision was upheld. The Missouri Supreme Court held:
Defendant’s Fourth Amendment right to be free from unreasonable searches of his person was violated, and the trial court’s judgment sustaining Defendant’s motion to suppress is affirmed.
The question before the U.S. Supreme Court is: “Can blood be drawn based solely on an officer’s authority?”
Refusal to consent to a blood test can result in suspension of one’s driver’s license for one year. However, with the results of a blood test, a criminal conviction for drunk driving is almost assured. The body’s natural dissipation of alcohol makes obtaining a warrant a time-critical exercise if the officer wants to obtain the evidence.
The Missouri Supreme Court noted the 1966 U.S. Supreme Court case of Schmerber v. California. In that case the Court ruled by a five-to-four vote that it does not violate the Fourth Amendment for police who lack a warrant to order the taking of a blood sample from an individual involved in an auto accident and who was suspected of being drunk at the time. In Schmerber the Court wrote: “Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” The Court also wrote that the Schmerber judgement was reached “only on the facts of the present record.”
While trying to determine a Supreme Court vote based on the Justices’ questions during oral argument is dicey, many Court watchers predict that the Court is not going to let police across the nation order blood samples — on their own authority. Justice Scalia said “once we say that you don’t need a warrant, you know, even if things improve, the game’s up, right?”
During oral argument, the Justices were concerned with what would constitute a reasonable amount of time to obtain a warrant for a blood test and that during this time the evidence is being lost. The State claims this loss of evidence was an exigent circumstance and doesn’t require a warrant. There was a discussion as to what would constitute an exigent circumstance in a DUI case.
H/T: Lyle Denniston, Charles P. Pierce, ACLU, Orin Kerr, John Wesley Hall.
Press Release:
http://www.aclu.org/criminal-law-reform/supreme-court-rules-missouri-v-mcneely-states-cannot-routinely-compel-blood
Supreme Court Rules in Missouri v. McNeely That States Cannot Routinely Compel Blood Tests in DUI Cases Without Consent and Without a Warrant
April 17, 2013
FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org
NEW YORK – The ACLU welcomes today’s Supreme Court decision rejecting the proposition that states may routinely compel drivers to submit to a blood test in drunk-driving cases without consent and without a warrant.
The following quote is from Steven R. Shapiro, ACLU national legal director, who represented Tyler McNeely before the Supreme Court:
We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights. Today’s decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy.
http://www.nytimes.com/2013/04/18/us/court-rules-warrants-are-needed-to-draw-blood-in-drunken-driving-cases.html?hp
http://www.aclu.org/blog/criminal-law-reform/victory-supreme-court-finds-drunk-driving-laws-can-be-strictly-enforced
04/17/2013
VICTORY! Supreme Court Finds Drunk-Driving Laws Can Be Strictly Enforced without Abandoning Constitutional Rights
By Steve Shapiro, ACLU at 11:52am
The ACLU welcomes today’s Supreme Court’s decision in Missouri v. McNeely. Writing for the majority, Justice Sonia Sotomayor upheld the 4th Amendment’s privacy protections by rejecting the proposition that states may routinely compel drivers to submit to a blood test in drunk-driving cases without consent and without a warrant.
We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights. Today’s decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy.
Invasion of the Body Searchers: The Loss of Bodily Integrity in an Emerging Police State
By John W. Whitehead
January 14, 2013
https://www.rutherford.org/publications_resources/john_whiteheads_commentary/invasion_of_the_body_searchers_the_loss_of_bodily_integrity_in_an_emer
“No matter which way the Supreme Court rules in Missouri v. McNeely, it will do little to rein in this runaway police state of ours. Indeed, as we have seen repeatedly, by the time a case arrives before the U.S. Supreme Court, it’s almost too late for any real change to take place, especially when it’s a matter of government abuse. More often than not, during the course of however many years it takes for a case to make its way through the courts, the particular violations being challenged have already been accepted by the citizenry as part of the government’s modus operandi.
Such was the case with Florence v. Bd. of Chosen Freeholders of County of Burlington, which attempted to challenge the practice of forcible strip searches by government officials, namely jail wardens. Albert Florence, an African-American man in his mid-thirties, was on his way to Sunday dinner in 2005 when his then-pregnant wife, who was driving, was pulled over by a New Jersey State Police trooper. Asked to show his ID, Florence soon found himself handcuffed, erroneously arrested for failing to pay a traffic fine, and forced to submit to two egregious strip and visual body-cavity searches at two different county jails. After spending six days in jail, Florence was finally able to prove his innocence. Outraged, Florence sued the jail officials who had needlessly degraded his bodily integrity.
It took seven years for Florence’s case to make it to the Supreme Court, and a year later, in April 2012, the Court handed down a 5-4 ruling which struck a blow to any long-standing protections against blanket strip searches, declaring that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband.
However, all the while Florence was making its way through the courts, law enforcement officials were playing fast and loose with the Fourth Amendment’s prohibition on searches and seizures, especially as it relates to violations of bodily integrity and roadside strip searches. Examples of minor infractions which have resulted in strip searches include: individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for 50 years). Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver’s license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support could also result in a strip search.
This brings us to the present moment where we find ourselves hapless, helpless passengers in a runaway car hurtling down the road toward a police state, and the only hope of salvation rests with the Supreme Court, which is little hope at all when you consider that the Court has, in recent years alone, given a green light to all manner of police abuses, including the tasering of a pregnant woman for failing to sign a speeding ticket.
It must be remembered that the Fourth Amendment to the U.S. Constitution was intended to protect the citizenry from being subjected to “unreasonable searches and seizures” by government agents. While the literal purpose of the amendment is to protect our property and our bodies from unwarranted government intrusion, the moral intention behind it is to protect our human dignity. Unfortunately, the rights supposedly guaranteed by the Fourth Amendment have been steadily eroded over the past few decades. Court rulings justifying invasive strip searches as well as Americans’ continued deference to the dictates of achieving total security have left us literally stranded on the side of the road, grasping for dignity.”
The author did not get the citation right. It is Missoura with an a at the end. Mizzou if you refer to the school of higher lernin.
Wasnt it Rhenquest who was using prescription drugs and looked drugged out in court all the time? Cant we have needles and blood tests for those who decide what the Framers meant when they passed our Constitution?
How does one spull WrenQuest?
Justice Roberts is the other dickhead that the commenter above could not think of.
I think that the author of Rednecks was Randy Newman on the Good Ol Boys album.
Here is what I would argue to the Supreme Court if I was the assistant attorney general from Missoura:
[to music]” We’re Redneck, Rednecks, …
We dont know our arse from a hole in the ground,..
We’re Redneck, Rednecks, ..
We are keeping the negros down…
–Jerry Jeff Walker, singing about Phelps County, Missoura
Is Scalia’s family from Sicily?
Ah, sundown counties and towns. The Scalia Court can help keep them running smoothly.
Dont let the sun go down on you in this county. We have the power to pull you over, take you to a clinic, and have some lame hillbilly stick a needle in your arm and steal your blood. That is the result of one Antonin Scalia, one who knows the intentions of the Framers of the Constitution. And while the Framers may not have intended that Italians sit on the same seats that they created for the lilly white protestant English ethnic group, the Framers were ok with sundown towns.
Ya, if they run their mouths off at ya, run em to the hospital and have em stick needles in their arms. That will show em.
“N —- guy dont let the sun go down on you in Phelps County, Missoura. We will pull you over and lock you up, drive you twenty miles to the local hospital and stab you with a needle and steal your blood. We will get a little alcohol reading in there along the way cause Joebub who works there is our Joebub and you and your kind will get the message. Tank you Scalia, we know where you are coming from and you know where we are from.”
The above was over heard by me in a gas station — some Sheriff yakking to Joebub out in Phelps County, Missoura–this afternoon as I was driving through.
if the car doesn’t need your input does the drivers sobriety matter.
I thought I would provide some additional background on some of the mechanics and practical considerations on this case.
I use WA statutory and case law as an example:
1) Breath Sampling for Alcohol is mandatory under implied consent laws when suspect is arrested for DUI / Physical Control of a Motor Vehicle while Intoxicated / Operation of a Commercial Vehicle after having consumed alcohol / or Being under Twenty One Years in Age and Driving after Having Consumed Alcohol. Defendant may refuse test but Department of Licensing will revoke Driver License for One Year and refusal can be used as evidence in court.
2) The defendant has the right to a blood test performed at his own expense.
3) If the defendant is physically (due to medical condition other than unconsciousness) unable to perform a breath sampling, implied consident for blood takes place and the defendant has a right to refuse the test.
4) If the defendant was under arrest for DUI any of the following events have happened, the officer may order a mandatory blood test without the consent of the defendant.
Driver is Unconscious
Driver is likely to suffer death
Driver chanrged with Vehiclular Homicide or Vehicular Assault
Driver involved in accident resulting in serious bodily injury
5) Nothing in the law precludes an officer from obtaining a search warrant for either of the two tests.
The argument with regard to spoilage of the evidence is that the body metabolizes the alcohol / intoxicants and that the evidence will be destroyed with passing time. (I will make some counterclaims to this at the end)
Practical Considerations:
It is a frequent event that defendants of DUI offenses will refuse to provide a breath sample. Roughly guessing with my experience it was about 20% of defendants. Typically those who were driving with suspended licenses and prior DUI convictions were most likely to refuse.
99% of officers when this happens just note the refusal in the report and rely on field sobriety tests, observations of the defendant and observations of the driving. A few officers I have known went through the trouble to obtain search warrants for blood. Most do not. The reason is most DUIs are made after 8 PM and most officers do not want to bother a judge late at night to perform a telephonic search warrant. This typically will take over an hour or so to just get the paperwork going, and probably another hour to go to the hospital and make the draw. Most officers don’t have the time or the inclination to do this even though the probable cause to request a warrant is amost always convincing to the judge.
In the case of Section 4) it is almost a certainty that an experienced officer with Felony DUI experience is going to go through the extra steps to obtain the blood sample or otherwise hand it off to another officer to perform this. The main practical reason is the lack of requirement to obtain a search warrant. I am convinced had a search warrant been required to obtain an immediate blood draw, probably only a third of officers would go through the trouble to do this. The legislature probably recognized this when the law was drafted.
Now for the information about the degredation of the evidence as considered an exigent circumstance through the body’s metabolism of the intoxicant. It is fairly well established, based upon gender, weight, level of intoxication that alcohol can be shown to be metabolized at a defined rate. For example, if a person had last consumed a drink 15 minutes prior to driving, was arrested 15 minutes after starting to drive, refused the test and was forced under search warrant one and a half hours afterward to a blood test that resulted in a BAC level of .200. Expert Testimony would be conclusive that a person was certainly over a .08 at the time of driving due to the probability of the person being over that at the time of driving as the rate of metabolism as being .015 BAC per hour (which would mean the driver could be at .230 at time of driving) or their alcohol level could not have suddenly gone to a .200 that quickly from sobriety 15 minutes prior to have driving.
My practice was that I almost never went for a search warrant on a run of the mill DUI with a refusal to blow. But if 4) was performed I excercised state authority to a mandatory blood draw. But, if a search warrant later through court decision required a search warrant for a blood draw, the seriousness of 4) would be such that I would elect to obtain the search warrant anyway. If the defendant was hospitalized and the blood draw would be done for medical purposes I wouldn’t wake up a judge then because I could always get a search warrant for the medical records at a later time. (which is usually what I did anyway) if the defendant was not injured then the immediate search warrant for blood would be requested.
Generally when in doubt, get a warrant. If you have probable cause to support the warrant and the other requisite circumstances the judge is almost always going to grant it if the PC and the authority is golden. It’s really just a matter of practicality and resolve on the part of the officer as to whether it is obtained when it could be asked for. But we need to consider that always obtaining a search warrant for all searches just is not practical, namely search of a person incident to lawful arrest (you cannot reasonably expect a search warrant to frisk a person’s pockets when they are being taken to jail. If so we would have to have two orders of magnitude more judges if all officers had to request a search warrant for this) That is the balance the courts have struggled with for decades.
“I just dont think they put the rope around his neck and kicked the chair out from under him.” -Bron
If they did, we’ll never know.
====
Dredd wrote:
“And don’t forget dear AP that “these innertubes” are the only place to find true American journalism … i.e. citizen journalism.
There are many reasons, in their minds, to get rid of the internet, and he was a light in that darkness.”
I know and agree Dredd — dear Dredd :-)…
With regard to your last point, as I told Bron, if he was helped along, we’ll likely never know. Should we continue to wonder? Without a doubt. Without a doubt.
Others may have been or were likely “assisted.” Gary Webb comes to mind.
dredd:
yep, free speech is very important. The internet is the newspaper of the founders day just as the M-16 is the musket of our day.
I find it interesting that government wants to control both just as the British did.
ap:
I dont doubt that government persecution contributed to his death, I just dont think they put the rope around his neck and kicked the chair out from under him.
You cannot win a pissing contest with a skunk. Especially one with unlimited ammunition.
Democrats killing democrats…. That’s a new one….. Fostering another government assisted suicide…. Ken Lay anyone?