The Washington Post

Supreme Court unlikely to let police order blood tests for drunk-driving suspects

The Supreme Court on Wednesday seemed unlikely to allow police to routinely force suspected drunk drivers to give a blood sample without the officers at least trying to obtain a warrant from a judge.

Justices across the ideological spectrum seemed to recoil during oral arguments from what Chief Justice John G. Roberts Jr. described as the “pretty scary image of somebody restrained, and, you know, a representative of the state approaching them with a needle.”

There seemed to be little, if any, support for the proposition that the usual constitutional protections that require a warrant for searches do not apply in drunk-driving arrests. Missouri, backed by the Obama administration, argued that a suspect’s dissipating blood-alcohol content meant that, in effect, evidence was being lost and thus drawing blood should not require consent or a judge’s order.

That argument drew fire almost immediately.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked. The justice, interestingly, is a diabetic who has given herself daily shots of insulin since childhood.

Justice Antonin Scalia immediately signaled that he considers a blood test different from other procedures the government may require.

“Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved . . . in his arm?” Scalia asked John N. Koester Jr., the Missouri prosecutor presenting the case for his state. Koester replied that a breathalyzer requires the suspect’s participation.

For most of the hour-long argument, the justices seemed to be debating among themselves what emergency circumstances — an inability to contact a magistrate late at night, for instance — might allow taking blood from an uncooperative suspect.

The case comes from rural Cape Girardeau County, where in the early-morning hours of Oct. 3, 2010, Missouri State Highway Patrol Cpl. Mark Winder pulled over Tyler G. McNeely. McNeely, with slurred speech and alcohol on his breath, failed a field sobriety test and twice refused to take a breathalyzer test.

Winder arrested him and, on the way to jail, stopped by a hospital. After McNeely refused to submit to a blood test, Winder ordered a phlebotomist to draw blood anyway. Winder did not attempt to obtain a warrant because he said he thought Missouri law did not require it because of recent changes.

The Missouri Supreme Court unanimously disagreed and said the blood test could not be used.

Courts nationwide are divided about whether a 1966 Supreme Court ruling created an emergency exception to the warrant requirement for taking blood or whether ”special facts” must be present to make a warrant unnecessary.

Koester and Assistant Solicitor General Nicole A. Saharsky argued that the rapid dissipation of alcohol was enough to relieve law enforcement from the warrant requirement.

“The police are facing a destruction of critical blood-alcohol evidence,” Saharsky told the court. “Every minute counts, and it’s reasonable for the officers to proceed.”

But Justice Ruth Bader Ginsburg said that it is relatively easy and quick for police to get a warrant — a phone call is often enough — and that police could attempt to secure one in the time it takes to drive a suspect to a hospital for the procedure. If 30 minutes passes without an answer, perhaps the officer could proceed, she suggested.

Steven R. Shapiro, legal director of the American Civil Liberties Union, represented McNeely and told the court that Missouri, the states supporting it and the U.S. government are asking for too much.

“The issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent,” Shapiro said.

He has noted that states may revoke a driver’s license for a suspect who refuses to take a test, so there is an incentive to agree. Shapiro said half of the states — Maryland and Virginia as well as the District of Columbia are not among them — prohibit blood draws without warrants.

Scalia wondered whether the “sound and fury” surrounding the case was merited. Obtaining a warrant probably would be just a technicality, he said.

“In all of these cases, it’s going to be the same thing: His breath smelled of alcohol, he couldn’t walk a straight line and whatnot,” Scalia said, adding, “I don’t see how the independent magistrate is going to do you a whole lot of good, except for the fact that it will delay the process.”

Shapiro replied that although the need may be rare, the court has long recognized that the “privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the state does something as intrusive as putting a needle in somebody’s arm.”

The court could rule in the case, Missouri v. McNeely, at any time before it recesses in June.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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