Constitutional Law, Supreme Court

Missouri v. McNeely

-Submitted by David Drumm (Nal), Guest Blogger

150px-Seal_of_the_United_States_Supreme_CourtThis 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.

60 thoughts on “<i>Missouri v. McNeely</i>”

  1. anonymously posted 1, January 12, 2013 at 11:17 am

    OT. Sorry.

    Hacker, Activist Aaron Swartz Commits Suicide
    ========================================
    Yeah, like Alan Turing eh? What is the evidence?

  2. How many times has this blog focused on the abuse of probable cause by faked testimony of police?

    Remember the cavity search of two females on suspicion of smoking pot because the car they had borrowed “smelled like pot” a few days ago?

    What is to stop such abuse in these “I smelled alcohol” suspicions of DUI?

    The DUI Blog (Lawyer Taylor) has a take on this case that Nal has blogged about today.

    Two things have been left out of the discussion heretofore.

    First, the premise that evidence will be destroyed is not true.

    For those who have used experts in DUI cases to establish the blood alcohol content of drivers at the time of an accident or arrest, you know that they can calculate that amount retroactively even when the blood is drawn an hour or so after the event.

    Secondly, a lot of people do not know that the surge in DUI mania is a function of the efforts of one large church, the same one that got the 13th Amendment passed:

    “The temperance movement was the social concern which most broadly captured the interest and enthusiasm of the Methodist Church. The movement was strongly tied to John Wesley’s theology and social principles. Wesley’s abhorrence of alcohol use was taken up by American Methodists, many of whom were active and prominent leaders within the movement … The Methodist stance against drinking was strongly stated in the Book of Discipline. Initially, the issue taken was limited to distilled liquors, but quickly, teetotalism became the norm and Methodists were commonly known to abstain from all alcoholic beverages … Due to the temperate stance of the church, the practice of Eucharist was altered — to this day, Methodist churches most commonly use grape juice symbolically during Communion rather than wine. The Methodist church distinguished itself from many other denominations in their beliefs about state control of alcohol. Where many other denominations, including Roman Catholics, Protestant Episcopalians, Lutherans, and Unitarians, believed that the ill-effects of liquor should be controlled by self-discipline and individual restraint, Methodists believed that it was the duty of the government to enforce restrictions on the use of alcohol. In 1904, the Board of Temperance was created by the General Conference to help push the Temperance agenda … To this day, the Women’s Division of the General Board of Global Missions holds property across on Capitol Hill in Washington, DC, which was built using funds provided by laypeople. Women of the church were responsible for 70% of the $650,000 it cost to construct the building in 1922. The building was intended to serve as the Methodist Church’s social reform presence of the Hill. The Board of Temperance, Prohibition and Public Morals was especially prominent within the building.
    …
    “Bob [Senator Dole who did federal DUI legislation] was raised in that kind of environment where everything rotates and revolves around the activities of the church, the rhythms of the [Methodist] church, the rituals of the church … “At this point in American history, in American culture, in a small town, in the Midwest, everything revolves around the church. Nothing takes place that is not in some way headquartered and centered in that church. A pastor is a high prestige position, high esteem, in a small town. So Bob Dole grew up in an environment where everything is ordered and organized by the rituals and the rhythms of that church. And he learned the small town values of a, of a church that is this white clap or steeple church that is kind of a, almost a cliche, but everything it stands for has an ordering, organizing, a centering of one’s life and that’s where, that’s where religion was centered and that’s where you centered your faith, through the rhythms and rituals of that church.”

    (Church Chat). That church is not worried about the first and second causes of highway deaths and accidents, nor with suicides, the number one cause of injury death, no, they focus only on the lesser causes.

    Demon rum is their target.

    This is political religious activism by tax exempt organizations once again.

  4. Congress ought to pass a law that each judge have a needle stuck in his left arm and blood drawn each time they put on the robe and go out to hear cases. Another blood drawing from their arm when they go into Conference and argue with each other. Another blood drawing when they come back from their three month vacation paid for by the taxpayer. We need to know if they have been drinking, taking drugs, have low cholesterol, have bad dna that might make them think like a Commie. Hey if you can force every driver to have a needle stuck in his arm at the whim of any pig then why not do this for the sake of Justice? Hey, I was an electrician before I got my nurse license and this wont hurt. Ooooch.

  5. Scalia will be searching the Original Constitution, and maybe the first ten amendments, to ascertain the Original Intent of the Framers. My gosh, there were not cars back then and no drunk horse riding laws. One cannot predict what the Original Intent of the Framers would be if they lived today– not according to Scalia. Of course, I would ask him what the mind of one of the Framers would be if he saw four women on the Court, one black, four jews and five Catholics. What no protestants? If we could only go back in time and ask a Framer.

    Thomas will be looking at his watch and asking no questions.

    Anthony Kennedy will be keeping his head straight ahead, fair and balanced.

    Ginsberg will be staring.

    Kagan will want to know if he was a bad drunk.

    Sotomayer will want to know if he was a good cop.

    Alito will want to know what Scalia thinks.

    Breyer will be asking about the demeanor of the driver.

    And the ninth Justice …. who is the ninth?

  6. To be clear, the court will say “no” to “blood draws” without a warrant, IMO.

  7. When they took McNeely’s blood, did the blood taker leave a squirt of rubbing alcohol on his arm as he inserted the needle and suck some up with the blood? If so, who was there to observe? The pig? Who seized the blood sample and tampered with it? The pig?

    Next they will require you to pull up to a roadstop and pee in a jar– every fifth car pulled over. Then it will be strip searches for pot. And cavity searches for pot. God knows he has a joint up his arse. No warrant needed in this country. America–The Pirate Territory– where cops and small town police forces are pirates of the Red Sea. Fly over and flush twice.

  8. I see this as an example of mitigated rights in certain circumstances, such as buying a ticket to an event, wherein certain rules that restrict your rights are printed on the back of the ticket. You, by obtaining a drivers license, give up certain rights for the privilege of driving under rules and laws prescribed by the legislature. Among those is the requirement to to drive sober and lawfully, with penalties and evidence rules given by the state to the police. Among these are taking of evidence on the spot without a warrant, with the proviso that if you refuse, certain penalties can be imposed, such as losing your license.
    I forsee the court allowing the continuation of blood tests as currently practiced under this circumstance.

  9. How does this fit into the equation:

    The safety recommendation specifically calls for the 50 states and the District of Columbia to ban the nonemergency use of portable electronic devices (other than those designed to support the driving task) for all drivers. The safety recommendation also urges use of the NHTSA model of high-visibility enforcement to support these bans and implementation of targeted communication campaigns to inform motorists of the new law and heightened enforcement.

    (Android Central).

    A DUI lawyer makes a startling statement:

    Many years ago, I was invited to give a lecture to a “think tank” of government, corporate and academic types. In the years since then that I have given versions of it to other groups, the legal and political situation has only grown worse.

    Perhaps the lecture itself might better explain why I consider MADD to be a continuing threat to our institutions and constitutional safeguards…..

    I hope to convince you in the next hour, some of you, that the greatest single threat to our freedoms, the freedoms set forth in the Bill of Rights, is not from Iraq or Iran. I don’t think it’s from North Korea. I don’t think it’s from the extremists of the Muslim world. The threat, as it has always been throughout history, is internal: It is from within. But I do not think it is from the American Communist party or extremists on the right. I hope to convince a few of you that the greatest single threat to our freedoms today comes from a group consisting largely of American housewives. They call themselves the Mothers Against Drunk Driving. MADD.

    (DUI Blog).

  10. Oh I think we have quite enough warrant-less nonsense going on. FISA was reupped without a PEEP of debate. When is enough ENOUGH already?

  11. Tough call but I have to go with raff and AY with the stipulation it will be a narrow ruling. Unless, of course, it guts the right which is not out of the question with this Court either. It’s not like they don’t have a history of disastrous stupidity.

  12. Next they will have a test which reqauires a needle stuck all the way into the liver. Or they will want a quart of blood. Or they will want your dna because you look like the kid named Adam who just shot all those people in Newtown and they want to sterize you. Or they will want to give you a drug to make you tell the truth while in a coma. Or they will want to cut off the middle finger so that you cant use it when necessary.

    Take away some of the Supreme Court Justices sacred rights: 1) three months paid vacation July through September; 2) Free ScaliaCare, the medical care they get for life; 3) Right to wear a robe while at work so that they can play with themselves un-noticed (ScaliaFun); 4) Right to play god and violate the Sixth Commandment of Thou Shalt Not Kill.

    It will be 6-3 in favor of the pigs.

  13. Good post Nal.

    One wonders why the state supreme court did not rule on their own constitutional provisions, and instead used federal law?

  14. Paul 1, January 12, 2013 at 9:25 am

    I detest drunk drivers, they should be not be driving and we need to do all we can to keep them off the road. I also detest a government that can control our lives. If refusal to take the test results in a 1 year loss of license, I’m fine with that. If during that year you are caught driving (sober, drunk, not using a turn signal, doesn’t matter), you loose the car, a 10,000 fine, and 1 year in jail. Pretty harsh? Yep, so is killing people while drunk.
    ===================================================
    If drivers who are over the legal alcohol limit are the third cause of deaths and accidents, first is cell-phone texting, and second is being tired, would you advocate for the first and second slots what you do for the third slot?

  15. 5/4….. With Sotomayor the swing vote……I think it will be treated as exigent circumstances and blood draws will be allowed…..

  16. rafflaw,

    You’re the lawyer, but I’ll be surprised if the court decides to allow the police to draw blood without a warrant.

    If I understand what Scalia said — ““once we say that you don’t need a warrant, you know, even if things improve, the game’s up, right?” — well, for once, I happen to agree with him.

    If it happens and it might, I suppose, then “the game’s up”, to be sure.

  18. Interesting question David! I wold not be surprised if the Roberts Court allows police the naked authority to order blood draws without a warrant. The Schmerber case was decided in favor of allowing the blood drawn and the only difference between the two cases seem to be the Schmerber case involved an accident and McNeely does not.

  19. I detest drunk drivers, they should be not be driving and we need to do all we can to keep them off the road. I also detest a government that can control our lives. If refusal to take the test results in a 1 year loss of license, I’m fine with that. If during that year you are caught driving (sober, drunk, not using a turn signal, doesn’t matter), you loose the car, a 10,000 fine, and 1 year in jail. Pretty harsh? Yep, so is killing people while drunk.

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