The Supreme Court has handed down its decision in Missouri v. McNeely, which is linked below. Missouri sought to establish a per se rule that blood tests were always covered by the “exigent circumstances” exception under the fourth amendment because the alcohol blood level continues to fall with time. It was another example of how some police departments seek thoughtlessly to expand exceptions when current rules allow ample room for legitimate police needs. Only Justice Thomas voted to support such a sweeping new rule. My Supreme Court class reviewed this case and voted the same with the actual court in rejecting the claim (9-1). The class also voted 9-1 in predicting this result in affirming the lower court. The majority opinion below was written by Justice Sonia Sotomayor.
The reliance on the natural metabolization of alcohol would have left citizens subject to mandatory and unconsenting to blood samples taken by police. In this case, the driver, Tyler McNeely, refused to provide a breath sample or to consent to a blood test. The officer said that he read somewhere that you don’t need consent for a blood test. He was wrong.
Sotomayor reaffirms the prior rule that the need to conduct such warrantless tests “must be determined case by case based on the totality of the circumstances.” She was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan. Notably, Sotomayor notes the availability of telephonic warrants now reduces exigency claims and that experts can easily work back from BAC levels to show what the BAC was earlier in the day while a warrant was sought. She adds however:
Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.” State v. Rodriguez, 2007 UT 15, ¶46, 156 P. 3d 771, 779.
Justice Anthony M. Kennedy agreed with most of the decision but added that there was a need for greater guidance for police in terms of procedures. Chief Justice Roberts echoed the same need for greater guidance. However his dicta worried the majority because, Sotomayor wrote, “Under the chief justice’s rule if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances.”
It is notably however that 8 out of 9 justices rejected the per se rule sought by Missouri.
Here is the opinion.
BIll
Just because you think something should be a particular way, because you don’t agree with the status quo, does not validate your point as being logical, legal, or proper.
The point here is in this website is to advocate your position as to its efficacy. Not whether you like it or not. And you have not advocated the efficacy of you position to a convincing level.
That others do not agree with you, in your mind they are always wrong because you continue to demonstrate your opinion being the only one that could possibly be correct, despite many references to the contrary.
An example: My personal opinion is that boys under 15 years old should not wear neckties. I think it is precocious, and puts children into an adult role. Just because I think this way does not mean it is the only correct way, or that my opinion of this means that others must conform to my wishes. I don’t argue positions that my view is absolutely and undeniably correct just because I don’t think boys should wear ties.
But your approach is to do just this. You would declare boys less than 15 MUST not wear neckties for no reason other than you say so and anybody who disagrees with you is wrong, based strictly on opinion alone with no relevantly supporting evidence.
Believe what you wish as to what I get or do not get, or continue to dodge around chasing ghosts. Supporting issues with evidence is what is relevant not what someone lacking in credibility serves up on an empty platter.
dsmith –
You obviously missed my point, didn’t understand it, or else are pretending
one or the other.
Most people agree that the government has the right to criminalize consensual behavior; my point is the government should not be allowed to do so. Got it now?
Bill
You still do not understand. The idea “victimless crime” does not have any weight on whether or not an arrest can be made based upon probable cause that a violation of the criminal statutes took place. I do not know of any state or federal law that designates any crime as being “victimless”. The fact that it has a victim or not per se is irrelevant as to the enforceability of the law. It only applies to satisfy whether or not an element of certain crimes was unlawful, such as whether or not a person agreed to provide the suspect with goods or if they were stolen due to the owner not consenting to the taking of the goods, and therefore by definition he/she becomes a “victim.”
The term “victimless crime” is more of an outside construct than a definition in the criminal law.
As for your import into victimlessness being part of a DUI, again, both you and travellinglimey (to a lesser extent) are not making a valid point. The state has both a statutory and a constitutional ability to codify conduct that it deems unlawful. (unless prohibited by statute or the constitution) It can criminalize violations of the traffic law as it sees fit. It can make DUI just as criminal as it can for Driving with a suspended driver license, or operating a commercial vehicle for hire and failing to keep a log book. You would argue the log book and DWLS laws are “victimless” but again it is irrelevant because the legislature has the authority to codify this.
But you Bill still regard DUI as not a big deal. Just two hours ago, I was nearly involved in a collision with a Drunk Driver when I was driving home from the airport. He drove past me in lane 3 going 15 over the speed limit, crossed the line in front of me, swerved back and then crashed in to the back of a car just in front of him. Luckily the other driver was just shaken up and managed to control his car after it was hit. I contacted both drivers, the offending driver was drunk and after I called the state patrol a trooper came along and arrested the guy for DUI. So was this drunk any less a threat to the public safety 1 second before he arse ended the guy in front of him? Do you not think the state has a valid public safety interest in enforcing a criminal traffic law against the driver 1 second before he hit the other car (which you agree would trigger an actual offense)?
Also it was luck that the drunk hit the other vehicle straight on. If he hit the right edge of the rear bumper it likely would have sent the other vehicle careening into the jersey barrier and a rollover and/or a serious injury or fatality might have happened.
You can argue the lack of authority of the state to charge someone with DUI unless someone is hurt badly or killed. I doubt you will not get anywhere in the real world in furthering your position.
If they stick a needle in my arm, I am gonna get even. OopPay on their front yards. ArtFay up wind. But that is not good enough revenge or turnabout as fair play. Sticking a needle in my front leg to draw blood is an invasion of my dog body. You humanooids make light of it. “Oh, well, what more can we do for law enforcement? The proud and the brave just doing their duty.”
You weenies that allow this and say its ok belong in Auschliitz. Or hoverer ya spull it. Buchenvald. Give up your liberties. Weenies.
Tell ya what. The Mayor drives to work and maybe he took some money from some crook. Stick a needle in his arm. Draw blood. Cop lies about taking money from the crook. Stick a needle in his arm. Draw blood. Everytime they show their faces on the street subject them to sticking a needle in their arms and drawing their blood. No harm done. Whats a little needle in the arm? Deutschland, Deutschland,uber alles….
Thanks traveling limey. Some of these holier than thou phony liberals
need a good smackdown. As typical right-wingers, they are unable to make
a rational case, and thus resort to Tea Party insults.
If you’re shot at and missed you’re still the victim. If it was intentional, its a big deal. If it was an accident its a lesser deal but you still have the emotional trauma. I’d argue that its not a victimless crime even if you slept through it, but not if two guys regularly did this to each other & laughed it off both ways. (assuming they lived in the sticks & owned the property they shot at) A victimless DUI should probably merit a $90 parking ticket or more if it were not the first; but if harm was done on the last one, the penalty should be greater. Illegal parking may or may not have a victim; thus it should have minimal intrusion by authorities, unless it blocks traffic, where immediate tow away and a fine would be appropriate.
Bill, I was being quite serious, although I do not doubt your inability to comprehend that. As to the merits, there are many victimless crimes that absolutely merit punishment. For example, if I aim a rifle at your head and miss, there is no victim. Are you really so foolish as to argue that attempted murder should not be a crime?
The point about the victimless crime is well taken. The consequences of a DUI where no-one & no property is put in harm’s way is too severe in most states to justify itself. Where harm is involved I think a mandatory breathaliser might be fair. Now you might have a person with a DUI that caused harm recently or several times; coersion might then be justified. Otherwise, a forced blood test should not be an option where there is no harm to others. But that would be assuming that we don’t have a police state, which, of course, we do!
Yeah, that Thomas is a bit of a fascist AH. Are there any normal, social black persons in high office that you might meet at the gym? Look at the disapointment we have for president! I’d like to think we’re ready for a more representative black person in high office that won’t dissapoint on all sides.
Guys quit arguing or bickering. Its not worth it. Leave that to me.
Bill.
Thank you for the laugh, most thoughtful and I appreciate your comments. Ordinarily one would have to go watch World Wrestling Federation to find such esoteric and inspiring wit.
And we are blessed with such treasures, that a man of humble means such as as myself, having only opinions that are worthless, is given these gifts of wisdom from a man as benevolent learned as yourself.
Bless your heart.
It was, and remains clear, that neither you, D.Smith, nor anyone else has or can give .a rational argument that DUI is not a victimless crime. Unless or until you can do so, your opinion is worthless.
Bill. It is entirely pointless to hash this out about DUI being a victimless crime. It was argued ad nauseum a couple or three months ago on another topic and it was clear to nearly everyone that your position on this had no merit whatever.
As for the topic at hand. I don’t personally see how a search could be any more intrusive than sticking a needle into a citizen and drawing blood. To allow this as an automatic process by statutory authority alone in my view is greatly against the spirit of the fourth amendment.
Procedurally in our state, the only time a blood draw was mandatory was if there was a DUI unconscious, or a DUI likely to result in a death which invoked a draw without a warrant. I would be curious to see if this ruling would force a change here.
MV – are you serious or just being silly?
The issue is: should it be legal to arrest someone for a victimless crime.
I say it shouldn’t be.
If you and anyone else wants to debate the merits of shooting arrows or shooting cannonballs, then by all means, argue amongst yourselves.
Bill, congrats, it’s seldom I read anything THAT stupid, even on the internet.
Bill
Do you also have no problem with firing a hunting arrow right past the head of another person? From what my understanding of what you are saying you would not consider that to be a crime unless the person was hit with the arrow.
bill, With your reasoning someone could fire a gun in a crowd but as long as nobody was killed or injured, or no property was damaged, it is ok. I still believe this is more personal for you than philosphical.
rs -sounds like you have a problem with leaving people alone who haven’t hurt anyone or damaged someone else’s property. Why is that, RS?
Clarence Thomas is known as Uncle Clarence in these parts and is known to abide in a cabin in Pin Pointe.