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Justices getting ready to handcuff police?

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent   |   Jan. 20, 2013 at 3:30 AM   |   Comments

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WASHINGTON, Jan. 20 (UPI) -- The U.S. Supreme Court may be getting ready to handcuff police in the nationwide fight against drunken driving, or it may be finally getting ready to enforce a basic constitutional right, depending on your point of view.

The justices heard argument this month on whether police can obtain an involuntary blood sample from a drunken driving suspect without first getting a warrant.

On Oct. 3, 2010, at about 2:08 a.m., Tyler G. McNeely was pulled over by a Missouri state highway patrolman for exceeding the speed limit.

The patrolman noticed McNeely showed signs of intoxication, court records said, including bloodshot eyes, slurred speech and the odor of alcohol on his breath.

When the patrolman asked McNeely to step out of his truck, the officer observed McNeely was unsteady on his feet. The patrolman then administered a series of standard field-sobriety tests, and McNeely performed poorly on all of them, the state said in its petition to the high court.

After placing McNeely under arrest for driving while intoxicated, on the ride to jail, the officer asked McNeely if he would voluntarily submit a breath sample. McNeely refused.

The officer then drove directly to a nearby hospital, read to McNeely an implied consent form and then asked him to submit to a blood sample. Again, McNeely refused.

The officer then directed a lab technician to draw a blood sample, which was collected at 2:33 a.m.

Court records say McNeely's blood-alcohol content was 0.154 percent, almost twice the legal limit of 0.08 percent.

The officer did not obtain a search warrant before ordering the sample. "Obtaining a search warrant in the middle of the night in Cape Girardeau County involves a delay, on average, of approximately 2 hours," the state said in its petition. "The generally accepted rate of elimination of alcohol in the bloodstream is between 0.015 and 0.02 percent per hour."

Because McNeely had two prior convictions for driving while intoxicated, he was charged with a class D felony under Missouri law, which carries a maximum of four years in prison.

Eventually, the state Supreme Court ruled in McNeely's case, suppressing the blood sample evidence. The state court said there had been no "exigent circumstances" -- no circumstances that called for immediate action -- that would have excused the failure to obtain a warrant under the Fourth Amendment.

"Warrantless intrusions of the body are not to be undertaken lightly," the court said.

Missouri, supported by the Obama administration, then asked the U.S. Supreme Court for review.

The American Civil Liberties Union, which unsuccessfully opposed review on McNeely's behalf, asked the high court to consider, "Whether the Missouri Supreme Court correctly held that [Missouri] violated the Fourth Amendment by subjecting [McNeely] to a non-consensual and warrantless blood test after his arrest for driving while intoxicated when (a) the arresting officer testified that there were no exigent circumstances requiring a warrantless search, (b) both a prosecuting attorney and a judge were available to respond to any request for a search warrant, (c) [McNeely's] performance on multiple field sobriety tests was observed by the arresting officer and preserved on videotape and (d) [McNeely's] refusal to consent to a blood test is admissible under Missouri law?"

Most media reports said the justices, during U.S. Supreme Court argument, appeared disturbed by the unrestricted use of involuntary blood tests.

Missouri prosecutors "wanted the justices to rule that the police do not need warrants to obtain blood samples in drunken-driving investigations," The New York Times reported.

The article said there was little enthusiasm among the justices for that approach.

"Instead, the argument turned into a search for a middle ground that would take account of the practical realities of roadside stops, body chemistry and the administration of justice in the digital age," the Times said.

On one hand, "the natural dissipation of blood alcohol means that time is of the essence when people suspected of drunken driving are pulled over and refuse to consent to a breath test. Obtaining a warrant, moreover, takes time.

"On the other hand, several justices expressed discomfort with what Chief Justice John G. Roberts Jr. called the 'pretty scary image' of government-sanctioned bodily intrusions involving sharp needles."

SCOTUSBLOG.com said the justices appeared to be trying to reach a compromise.

During argument, "it seemed quite predictable that the court is not going to let police across the nation order -- on their own authority -- the taking of blood samples from those suspected of drunk[en] driving," SCOTUSBLOG said. "Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one."

It went on: "Two impressions were dominant throughout the argument: The justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the Fourth Amendment warrant requirement should not be cast aside for all cases of drunk[en] driving when officers decide to order a blood draw."

The organization, Mothers Against Drunk Driving, founded in 1980 by a California mother whose 13-year-old daughter was killed by a drunk driver, filed a friend-of-the-court brief in the case, and posted a statement on MADD's website after the argument.

"Law enforcement is key to drunk[en] driving prevention, and we need to ensure officers have the tools they need to enforce drunk[en] driving laws -- ultimately, making our roads safer," the statement said. "That is why MADD supports testing the BAC [blood-alcohol content] for of any drunk driver where there is probable cause and submitted an amicus brief in support of the blood draw, saying that the state has a compelling state interest to prevent drunk[en] driving.

"After law enforcement has arrested a driver based on their performance during a standard field sobriety test, they have probable cause to obtain BAC evidence in as timely a manner as possible," the statement said. "Because the body breaks down alcohol over time, it is imperative that this evidence is obtained as close to the arrest as possible to ensure the result is the most accurate depiction of the suspect's BAC at the time of the alleged drunk[en] driving offense. Failure to obtain timely BAC evidence often results in a lack of conviction.

"Forcing officers to obtain a search warrant after probable cause has already been established gives drunk drivers continued motivation to refuse to submit [to] these tests in the hope that the delay will give their body just enough time to process the alcohol and their lawyer just enough leverage to obtain an acquittal," the statement said. "It is our hope that the Supreme Court will reinforce the importance of drunk driving as a compelling state interest and allow law enforcement to enforce our drunk[en] driving laws by obtaining the best evidence available at the time of arrest -- an accurate BAC."

But the ACLU posted its own statement at the time of the argument.

"Missouri's top court had unanimously rejected a contention by the state that there should be a categorical exception to the warrant requirement in all DWI cases," the statement said. "Indeed, 26 states already ban the drawing of blood without a warrant."

"I don't think that the delays in getting a warrant justify the police sticking a needle in your arm because there's no evidence that those delays interfere with the state's ability to enforce drunk[en] driving laws," ACLU Legal Director Steven R. Shapiro said in the statement. Shapiro argued the case before the U.S. Supreme Court.

"The interest that is being preserved is a very important principle, that before the government conducts a search, and especially a search as intrusive that involves putting a needle in your arm over your objection when you're restrained, that decision ought not to be made by the police themselves absent a true emergency, but ought to be reviewed and approved by a judge," Shapiro said. "That's the principle under which our constitutional law operates."

And then there was this from author and attorney John W. Whitehead in the Huffington Post blog:

"No matter which way the Supreme Court rules in Missouri vs. McNeely, it will do little to rein in this runaway police state of ours. Indeed, as we have seen repeatedly, by the time a case arrives before the U.S. Supreme Court, it's almost too late for any real change to take place, especially when it's a matter of government abuse. More often than not, during the course of however many years it takes for a case to make its way through the courts, the particular violations being challenged have already been accepted by the citizenry as part of the government's modus operandi."

The U.S. Supreme Court should rule in the case before the summer recess begins in late June.

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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