Do you remember the night of Saturday, October 2, 2010, Tyler? Probably not, because by 2:08 AM, you were pulled over by the Missouri state police for speeding and veering across the center line. Officer thought you were drunk—bloodshot eyes, slurred speech, you smelled like alcohol—oh, and you told the officer you had "a couple of beers."
Field sobriety tests didn't go so well either, but at least you were smart enough to decline to provide a breathalyzer sample ... at which point the officer decided to drive you to the nearest hospital for a blood draw instead. He didn't get a warrant, and you didn't consent, even though that meant an immediate one-year revocation of your driver’s license. Guess what? The officer told the lab tech to draw your blood anyway, and at approximately 2:35 AM, your BAC was measured at 0.154 percent, well above the legal limit of 0.08. Your lawyer was sober enough to move to suppress the blood evidence at trial. He won then. The state appealed.
And today, Tyler, you're a winner. In an 8-1 decision, the Supreme Court rejected arguments offered by the state of Missouri (and the Obama administration) which sought to dispense with the warrant requirement before shoving a needle into your arm, no matter how much your BAC might dissipate over time, because that alone was no reason to dispense with the Fourth Amendment when it comes to DUI blood testing. The evidence cannot be used against him.
Justice Sotomayor wrote the principal opinion, for herself and Justices Scalia, Kennedy, Ginsburg and Kagan:
It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. ... But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, not to accept the “considerable overgeneralization” that a per se rule would reflect.Simple enough, really. Keep reading unless you can already guess who the one dissenter is, or can already guess the surprise ending for McNeely.
The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now or never’ ” situation. In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.
They weren't a fan of the other reasons advanced by Missouri and the feds, such as:
Tthe State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves “virtually no risk, trauma, or pain.”Also, they say, don't wave the Drunk Driving Sucks flag:
But the fact that people are “accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,” does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, 470 U. S., at 759–766 (surgery to remove a bullet); Rochin v. California, 342 U. S. 165–174 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.
“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society.And, dude, they totally could have gotten a warrant:
But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.... As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.
The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, “a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant.”The chief justice, with Breyer and Alito, would've made a clearer rule:
Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.And fancy math is not enough to save every DUI defendant's arm:
The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately.And these three justices have a sense of how long a warrant should take:
McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant’s BAC at the time he was driving. But that’s not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant’s co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.
The same approach should govern here. There is a compelling need to search because alcohol—the nearly conclusive evidence of a serious crime—is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way.
At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge’s signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically re-turn a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges’ iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.To which the Court's majority, minus Kennedy, responds:
For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. 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 (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule would also distort law enforcement incentives. As with the State’s per se rule, The Chief Justice’s rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. The Chief Justice correctly observes that “[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road.” But The Chief Justice does not say that roadside blood draws are necessarily unreasonable, and if we accepted The Chief Justice’s approach, they would become a more attractive option for the police.Why minus Kennedy? Because he just doesn't want to touch that question yet—but please, pretty please, send some more cases his way!
The repeated insistence in Part III that every case be determined by its own circumstances is correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.Which leaves our solo dissenter, Justice Thomas, who unlike every other justice would have held that the natural dissipation of alcohol in the blood always means the police don't need a warrant:
States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.
As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.
A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence. Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.
The Court’s judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry....Bottom line: The per se rule is soundly rejected, and each case gets decided on its own facts. When the police can obtain a warrant, they must.
Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there....
The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before “too much” evidence is destroyed, for the police lack reliable information concerning the relevant variables.
Oh, and as for McNeely? He's not quite scot-free yet. Because the Court affirmed the decision of the Missouri Supreme Court, which in terms concluded:
The State may go forward in the prosecution of the DWI charge against Defendant based on evidence gathered in conformity with the Constitution.Good luck with that, Tyler.