(SCOTUS) Justices Look at Legality of Drunken-Driving Test

[alp227]

Source: NYT

Prosecutors in Missouri, supported by the federal government, came to the Supreme Court on Wednesday with a big request: They wanted the justices to rule that the police do not need warrants to obtain blood samples in drunken-driving investigations.

There seemed little enthusiasm among the justices for that categorical 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.

On the 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.

Read more: http://www.nytimes.com/2013/01/10/us/supreme-court-weighs-drunken-driving-blood-tests.html

[AtheistCrusader]

1. How hard is it to staff for a judge

around the clock? There are other issues that need a warrant all hours of the day as well.

[Major Nikon]

7. Some rural counties only have one judge

It's already hard to staff some counties because of working conditions that require calls at all hours of the day and night.

[Orrex]

9. In this case, there was a judge available on-call

And it's been shown that warrants can be fast-tracked for this sort of situation in order to minimize the metabolizing of alcohol in the bloodstream.

So the question is, if the warrant can be obtained in a timely manner, can the police order your blood to be drawn without first obtaining that warrant. I would hope that the answer is no.

[Major Nikon]

11. Can does not mean should

If judges can be expected to be on-call 24 hours per day for routine things like BAC blood tests and are only a phone call away, then probable cause would never apply to anything because the same standard could apply to any search. The constitution doesn't protect you from all searches, just unreasonable ones. If people were being pulled over at drunk roadblocks and being asked for blood samples without probable cause, it might be one thing, but I don't think that's the case anywhere. I'd much rather see the court establish federal guidelines for what constitutes probable cause rather than creating some system of on-call judges to rubber stamp everything the police do.

[Orrex]

13. But that's not the issue before the court

At some later date they might hear a case defining precisely what constitutes probable cause, but don't hold your breath; such a tight restriction is unlikely to be established any time soon. The driver in this case had already failed four out of four field sobriety tests, thereby establishing a reasonable suspicion that he was intoxicated.

Like it or not, judges already have considerable authority to grant warrants if probable cause has been demonstrated, and if that includes the drawing of blood, then--as it stands now--the law supports this.

You may argue that judges shouldn't possess this authority; I welcome you to tell us who should have that power instead. .

[Major Nikon]

15. I'm not saying that's the issue before the court

Nor am I saying judges shouldn't possess that authority. However, rulings in one case may certainly be used as precedent in others. That's why I don't think the court is ever going to rule categorically that warrants are neither required or are not necessary in this instance. I do expect some guidance in the form of a probable cause test of some sort.

[Orrex]

22. I expect that they will rule that warrants must be obtained when they reasonably can be

In cases where a warrant can't reasonably be obtained in a sufficiently timely manner, then the definition of "probable cause" will likely be expanded, giving greater jurisdiction to the officer(s) on the scene. This would open a whole can of worms as to what "reasonably be obtained" might mean, but that's how it goes. Given the court's track record, and since the issue primarily involves local jurisdictions versus individual citizens, I sense that they will rule in generally favor of the government even if this particular case is acknowledged to have dropped the ball.

[Riftaxe]

2. I vote for the other hand

While people may not remember when BA levels had to be .10 or higher, on this at least we are moving in the right direction.

However; it hardly means that blood can be demanded at will, surely the 4th of that much derided document must have some hold.

[dballance]

3. Okay SCOTUS may have made a good decision for a change

Last edited Thu Jan 10, 2013, 04:22 PM - Edit history (1)

I think they were right to question how it might be okay to stick a needle in some one's arm without a warrant. I cannot see how that is NOT a violation of a person's privacy. How prosecutors could possibly think that is okay baffles me. Aren't prosecutors supposed to be fair and ethical? Talk about prosecutorial misconduct. That would seem to be the best example.

[dotymed]

5. On New Years eve, in Tn.

The police set up road-blocks and if you were suspected of DUI, you did not have the "right" to refuse a blood test. I do not know if this is a permanent law that went into effect this year, but it was definitely in effect for New Years. The article in our local paper was not clear if this was a temporary "law" or not.

[dballance]

25. My Home State of TN Still Continues to Embarrass Me. /eom

[Fantastic Anarchist]

39. In my opinion, that is not Constitutional.

Also, one thing that's always bothered me is the arbitrary designation of .08 BAC as the threshold for criminality. A person can chug a beer, and be above that threshold for 20 minutes or so, and not be drunk. Another can drink continuously all night and not seem drunk, yet they most certainly are.

I don't know, I have a problem with these DUI laws. I know it's not a popular position to take, but just my opinion.

[AAO]

16. If they always had a trained nurse on hand to take the blood

it wouldn't bother me, but I really don't want some fat-fingered cop digging around my arm for a vein. But this all arises from someone refusing the breathalyzer. If they'd rather have a cop rooting around for a vein, I guess that's there decision. After all the cops would have already had probable cause by then, because they conduct the FS Tests first.

But let me be clear - they would certainly need to have a warrant to invade your bloodstream.

[dballance]

28. Seriously That Would Make It More Legal?

Just because they may have a professional on hand does not make it less invasive to a person's privacy.

[AAO]

35. Make what legal? Taking your blood with a search warrant?

They can do this now!

[Jenoch]

29. Even if SCOTUS were to rule

that blood can be drawn without a warrant I am sure it would still need to be done at a medical facility (ER or clinic) or at least by someone certified such as a nurse or EMT.

[AAO]

36. I though the whole point was to do it onsite before the alcohol left their system?

[Jenoch]

37. I am not aware

of a situation where LEOs are actually drawing blood. With some exceptions, such as remote areas, there are medical facilities nearby. Also, most of the time, at the time an arrest for DUI is made, the driver's BAC is still rising.

[Fantastic Anarchist]

40. What difference does it make?

If it's a cop or a nurse?

We have to draw a line somewhere. The state has too much authority as it is.

[Blue_Tires]

30. Well, given the way they ruled on Florence last year, I don't have much hope...

[Socal31]

4. They should NOT be able to take blood from you without a warrant.

Only exemption being if you are involved in an accident with bodily injury to someone other than yourself. At that point, if there is probable cause that YOU caused the injury, and you refuse a breath test, you should be coerced for blood.

Here in CA, if you refuse a misdemeanor DUI test, you get the same penalties as a DUI (suspended license, etc), but you do not get a DUI. That is how it should be.

The reason they want blood immediately is due to rising BAC, Benzodiazapines with short half-lives (Alprazolam AKA Xanax), etc.


If I blow a .06 in the field, which is inadmissible in court on the "People's" side due to the inaccuracy of standard field sobriety tests, and then 45 minutes later at the station I blow a .09, anyone with $5k is getting the case thrown out, because they can argue at the time they were not impaired.


Again, my stance is for misdemeanor DUI suspicion, AKA you get pulled over after leaving the pizzeria. If you refuse, yes, you will pay fines, lose privileges, etc. But nobody should be able to stick a needle in your arm due to the standard police description in a DUI report of "I pulled him over because he/she made a wide left-turn. They had watery eyes and poor coordination when accessing their wallet for their driver's license."

[MADem]

27. I have a relative who had a pretty bad stroke. He gets around just fine, but he can look a little

loaded when he's tired.


He doesn't drink. Not a drop. Ever. Nor does he take any mind-altering substances, legal or illegal, save perhaps a cup of coffee with breakfast.

He'd be pulled into one of those "wide net of suspicion" type events that you describe.

[christx30]

33. I wouldn't like that

I don't drink, unless I'm alone at home. And I don't drive since my car died a year ago.
But we have that pesky protection against self incrimination. And you should (and do) have the right not to consent to a search. And that includes your blood. If the cops think they have enough PC to take away your freedom and your money through fines, ect, let them work for it. If I was driving on nothing but root beer, I would still refuse the blood test.
Make them work for it. A cop is not your friend. He is not there to help you. He's there to put you, innocent or guilty, in a cage. Make them work for it.

[Fantastic Anarchist]

41. Kicking your post for truth.

Well said.

Make them work for it, indeed.

[christx30]

42. In other words:

What good is it to have civil rights if you get punished for using them? "You can insist on a warrent for me to enter your home, but then I'll bring dogs in here and they'll rip up your stuff." or "You can insist on a warrent for blood, but then I'll fine you as if you were already guilty."

[unblock]

6. what really sucks is that any victory for civil liberties here is likely to be hollow

i heard a snippet of oral arguments on npr. as a practical matter, requests for warrants are rarely denied.

they really just want to avoid the hassle and time delay of getting a warrant (which may only be a phone call away anyway).

if a warrant were a requirement, they could get it as a matter of course. really, on what basis would a judge deny it?

only perhaps it if was apparent that it was being overused, e.g., if a judge were bombarded with an implausibly large number of warrant requests, or repeated requests for the same suspect.

[Dr_Scholl]

8. This oughta be interesting n/t

[Disconnect]

10. Alcohol is odorless and tasteless

So when a cop says he smells the "ODOR" of intoxicants on your breath, he/she is lying!! What they really smell is the flavoring, such as beer. In evidentiary exhibits cops can't tell the difference between Near Beer and regular beer.

[Evergreen Emerald]

12. Really? I have smelled alcohol on drinkers.

There is definitely an odor to those who have been drinking.

[AngryAmish]

14. As stated above, you do not smell the etoh but the other stuff in the booze

Many serious alcoholics favor vodka because there is less stuff in it to smell. They can brown bag it all day and you don't notice until slurred speech or they do something inappropriate like pee on the rug.

[AtheistCrusader]

23. At some point they end up smelling like a distillery.

Probably coming out of their pores. I can smell hard core vodka drinkers, no problem. Gin too.

[AAO]

18. Ever try tasting 190 proof Everclear? 95% alchohol - the taste alone can kill you.

Sounds like you are talking about a subject you know nothing about. You're not a drinker I take it?

[Tempest]

20. We used it to start fires when the temperture was below zero in Alaska. n/t

[Tempest]

21. Ignorant statement

Alcohol combines with enzymes in the body to create the alcohol-like smell.

[jeff47]

32. Ethanol definitely has a smell.

As people who've worked in any sort of biology lab can tell you - we use it all the time as a sterilizing agent.

Also, alcohol metabolism releases a ton of smelly substances.

[Ash_F]

17. If you can't secure a conviction from a jury with a video of the suspect...

then no conviction is warranted. PERIOD FULL STOP. Forcibly taking blood..disgusting and shameful.

Edit - And posters here are ok with it with 'qualifications'. DU 2013

[Tempest]

19. An unlicenced, unpracticed cop taking blood. What could possibly go wrong?

And would local police reuse needles to save money?

Scary shit indeed.

[NCthraxman]

24. WHA??

So I can refuse a breath test but I can't refuse my blood being drawn against my will. Really???
And some people on this board are okay with blood being drawn?
That sure is not underground thinking.

[samsingh]

26. kick

[Kelvin Mace]

31. Since driving is a privlege, not a right

and since you consent to a breathalyzer test when you apply for a license, it seems to me that refusing the test should simply be treated as a guilty plea in any case not involving injury or death.

If someone has been inured or killed, then a warrant is called for, since the matter went from misdemeanor to felony.

[okwmember]

34. What I was most surprised by was the hospital performing the test

not only without the patient's consent but with his expressed refusal.

[Fantastic Anarchist]

38. Fuck them ...

Oh, and the tests, too.

Now, I'll read the article.