-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.
anonymously posted 1, January 12, 2013 at 3:01 pm
Bron,
Interesting link. I would add that depression and suicidal ideation do not necessarily lead to suicide. Sometimes they do, but not always.
Aaron Swartz reportedly hung himself. Maybe in his case it was government-assisted suicide, in the sense that the DOJ was rather relentless in its pursuit, as well as its insistence to make the “felon” label stick.
===============================================
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 do not think he committed suicide.
Bron,
Interesting link. I would add that depression and suicidal ideation do not necessarily lead to suicide. Sometimes they do, but not always.
Aaron Swartz reportedly hung himself. Maybe in his case it was government-assisted suicide, in the sense that the DOJ was rather relentless in its pursuit, as well as its insistence to make the “felon” label stick.
From the NY Times:
http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html?pagewanted=2&_r=0&hp
Mr. Swartz returned the hard drives with 4.8 million documents, and JSTOR declined to pursue the case. But United States attorney Carmen M. Ortiz pressed on, saying that “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”
Ms. Ortiz might have added that there are important exceptions to that “rule.” During the S&L crisis, there were thousands of indictments and roughly 1000 people went to jail. Now, we go after people like Aaron Swartz, and let Wall Street types and corrupt bankers skate.
I would like to believe that our 4th amendment right would be protected, but I have to agree with rafflaw on this one. Why would a Court which has steadfastly decimated our rights, especially the 4th amendment, suddenly relent and do the right thing? I don’t believe that the concept of ‘the right thing’ is anything that the majority on the Court has even a passing familiarity with.
dredd/ap:
http://www.zdnet.com/blog/violetblue/techs-relationship-with-depression-suicide-and-aspergers/904
seems suicide is not uncommon. this is a good article.
there is the larger question about accidents and blood alcohol level. what is the evidence of the higher level of accidents among drivers at various blood levels?
AY,
They’ll draw the line on this one, pun intended, in spite of the court’s composition, IMHO. (Feel free to say, “I told you so.”)
Dredd 1, January 12, 2013 at 12:37 pm
Double posting there ap … I suspect DUI (Double posting Under the Influence) … stick out your arm … gonna go blood deep on ya … 😉
======
🙂 Yep, Dredd, under the influence all right… the influence of too much coffee, to be sure. And hey, draw away… because I have nothing to fear… (sarcasm)
I posted initially, without giving you credit. So I credited you and reposted, without explanation, since I’m feeling lazy today. But here’s my arm anyway…
I agree no warrant, no draw….. But this is a court full of bush and Obama appointees…. We will see where that gets us….
I’m with ap … no warrant, no draw.
Gene,
I think you are right that it will be a narrow decision. I hope I am wrong with my thought that the Supremes will find in favor of allowing warrantless blood draws, but I do not trust the Roberts court.
BarkinDog 1, January 12, 2013 at 11:52 am
Well, some commenters above want the roads safe at any price. So, lets outlaw prescription drugs and doctors who prescribe drugs and pharmacists. Close every bar, liquor store and alcohol sales outlets. Get rid of the Moon so as to get rid of moonshine. Cordone off the Appalacian Mts and the Ozarks to keep the moonshiners in. Outlaw texting devices, cell phones, and loud children in cars. Require rubber bumpers front and back on every car. No driving at night. No speed higher than forty. No left turns. No U turns. No backing up. No person with bad eyesight or hearing can drive. No person under 25 or older than fifty can drive. Keep preachers and teahcers off the road. Stick a needle in the arm of every person who drives, before they get in the car, periodically and when they get out. No drive in movies theatres. Close the border with Mexico and New York from the rest of the country while you’re at it. New brakes on cars every six months. Drivers ed classes for all. Drivers ed classes for drivers ed teachers.
======================================
Don’t forget suicide, the number one cause of injury death in the U.S.
Tobacco smoking causes 400,000 deaths a year in the US, pollution causes upwards of 5,000,000 deaths per year globally.
Yet, Oil-Qaeda is given billions of taxpayer dollars to help them do more to us.
Religion inspired law is the worst when it gets blood thirsty.
Enter the time you stopped the driver. If he refuses blood testing, get a warrant, but have the cop sign an affidavit giving exact details. Pass a law, based on good data about how fast alcohol levels drop in the blood for a person of that size over time, showing what are values “over legal limits” for the amount of time passed, up to an hour, two hours, whatever the medical research shows to be the time that the alcohol reaches zero. You can have one magistrate on duty for a large area for warrants now that you have electronic means of verifying the signatures needed. This is doable with our technology nowadays. Just don’t decide to throw out the Fourth Amendment with the bathwater. Tough cases make bad law, but good technology makes fewer excuses necessary.
Double posting there ap … I suspect DUI (Double posting Under the Influence) … stick out your arm … gonna go blood deep on ya … 😉
Dredd 1, January 12, 2013 at 11:38 am
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?
==========
Dredd,
Yep. Knowing what I know, I have my doubts. Yep, Turing, et al.
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?
==========
Knowing what I know, I have my doubts. Yep, Turing, et al.
Outlaw all alcohol sales or use. Period.
If you give a cop the finger does he have the right to have a needle stuck in your arm and draw out blood.
Well, some commenters above want the roads safe at any price. So, lets outlaw prescription drugs and doctors who prescribe drugs and pharmacists. Close every bar, liquor store and alcohol sales outlets. Get rid of the Moon so as to get rid of moonshine. Cordone off the Appalacian Mts and the Ozarks to keep the moonshiners in. Outlaw texting devices, cell phones, and loud children in cars. Require rubber bumpers front and back on every car. No driving at night. No speed higher than forty. No left turns. No U turns. No backing up. No person with bad eyesight or hearing can drive. No person under 25 or older than fifty can drive. Keep preachers and teahcers off the road. Stick a needle in the arm of every person who drives, before they get in the car, periodically and when they get out. No drive in movies theatres. Close the border with Mexico and New York from the rest of the country while you’re at it. New brakes on cars every six months. Drivers ed classes for all. Drivers ed classes for drivers ed teachers.
“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.”
Hmmm, Patriot Act, warrantless wiretaps, immunity for torture and spying, etc. or harsher penalties for drunk drivers who kill thousands annually? Color me unconvinced.
“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.”
There’s actually another difference between the cases that was the subject of many questions at oral argument. Specifically, there has been significant changes in technology and communications since Schmerber, so that, as a practical matter, getting a warrant is not nearly as time consuming as it was when Schmerber was decided. So, while exigent circumstances might have justified Schmerber, query whether those same circumstances are present today. In other words, how difficult is it today for cops to get a warrant for the defendant’s blood and would it really cause the loss of the evidence if they had to do so?