At 10 a.m. Wednesday, the Supreme Court will hold one hour of oral argument on whether police need a court order to get a blood sample from an individual suspected of drunk driving. The case is Missouri v. McNeely (docket 11-1425). Arguing for the state of Missouri will be John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., sharing time with Nicole A. Saharsky, an Assistant to the U.S. Solicitor General, representing the federal government as an amicus. Each will have 15 minute of time. Arguing for Tyler G. McNeely, with 30 minutes, will be Steven R. Shapiro of New York City, legal director of the American Civil Liberties Union.

Background

The modern history of the Fourth Amendment often seems to be a search for loopholes: when does the guarantee of individual privacy not apply? Fourth Amendment rights, like all constitutional rights, are not absolute, but the very wording of that Amendment lends itself to exceptions, and the Supreme Court spends much time defining those. While the government is limited in when it can conduct a search for evidence, that is only when the action is “unreasonable,” a word that has been found to be very flexible and thus very accommodating of law enforcement needs.

And, while the Amendment appears to place significant stress on search warrants as part of the protection for privacy, police do not need a warrant if “exigent circumstances” are found to exist. The quoted phrase is not in the Amendment itself, but is implied by the constitutional reality that only “unreasonable” searches are forbidden. The Supreme Court will now examine anew what “exigent circumstances” may allow police to order an individual suspected of drunk driving to give a sample of blood for an alcohol test.

The Court has been here before. In the 1966 case of Schmerber v. California, the Court ruled by a five-to-four vote that it does not violate the Fourth Amendment for police who lack a warrant to order the taking of a blood sample from an individual involved in an auto accident and who was suspected of being drunk at the time. Taking a blood sample, the Court said, is a form of search subject to the Fourth Amendment. The Court majority said it was ruling on the constitutional issue on the basis of the “special facts” of the case — that the officer did not have time to get a warrant because he had to take the suspect to a hospital to be treated for injuries and had to investigate the scene of the accident. Faced with those “exigent circumstances,” the officer need not have taken the time to get a warrant before ordering a blood sample, the majority concluded.

It is possible, of course, to interpret the Schmerber precedent as settling the dispute that now returns to the Court, and the Court may have accepted the Missouri case for review in order to say just that. The Missouri Supreme Court, however, did not read Schmerber as a general relaxation of the warrant requirement in drunk-driving cases. The decision, the state court found, “led the Supreme Court to carve out a very limited exception to the warrant requirement for a blood draw in alcohol-related cases.”

While part of the Schmerber rationale was that, chemically, the percentage of alcohol in a person’s blood begins to diminish shortly after one stops drinking, the state court said, the Schmerber precedent requires police to have more than that fact to justify an involuntary taking of a blood sample from the suspect. There must be an array of “special facts”that leads an officer to believe that an emergency situation is at hand, so the officer should not delay in getting a sample taken. The Missouri court blocked prosecutors from using the sample they had ordered taken in this case, but said the prosecution on a drunk-driving charge could go ahead with evidence not obtained in violation of the Constitution.

The Missouri case began in the early morning of October 3, 2010, when a state highway patrolman, Corporal Mark Winder, pulled over a truck that he had clocked speeding eleven miles over the limit. The truck was driven by Tyler G. McNeely of Cape Girardeau. As he got out of the truck, he was unstable. The officer put McNeely through several field sobriety tests, which he failed. McNeely was put into the officer’s patrol car, and the officer asked him if he would take a breath test; McNeely refused. The officer then drove to a hospital, where McNeely refused to consent to a blood test. Corporal Winder told a hospital lab technician to take a blood sample anyway.

An analysis of the sample showed that McNeely’s blood alcohol level was 0.154 percent, almost double the legal limit of 0.08 percent. Before he went on trial, McNeely and his lawyer sought to block the use as evidence of the test result, contending that the involuntary taking of the sample was a warrantless search that violated his Fourth Amendment rights. The patrolman testified that, at the time of the incident, he did not believe that he needed a warrant, although he said he had obtained a warrant in similar situations in the past. He testified that he had since read a magazine article which said that, under Missouri state law, drunk driving meant that a driver had given implied consent to be tested.

The trial judge ordered the blood evidence barred from the case, interpreting the Schmerber precedent in the narrow way that the Missouri Supreme Court would later adopt. The trial judge found no “exigency” that justified the blood search. While that result was overturned by a middle-level state appeals court, the Missouri Supreme Court ruled for McNeely, and barred the test result.

Petition for Certiorari

Missouri officials took the case to the Supreme Court in May 2012, arguing that there was an ongoing split among state supreme courts and federal appeals courts on the issue and on how to read the Schmerber precedent. Some courts, the petition noted, have ruled that the natural dissipation of alcohol in the human bloodstream is, by itself, a sufficient “exigent circumstance” to justify involuntarily taking a blood sample, whatever other conditions may have existed at the time of such an incident. Other courts have ruled as the Missouri court did, and, the petition argued, this split is likely to continue until the Supreme Court steps in and decides what Schmerber means.

The petition noted that it is a common understanding that, when there is a risk that evidence will be lost unless officers act quickly to preserve it, the Fourth Amendment warrant requirement does not stand in the way of such quick responses. When an officer has noticed that a person stopped on the highway may be drunk, that is a sufficient basis for the officer to conclude that taking a blood sample will produce evidence of intoxication, the state said.. That is true, whether or not the officer on the scene is confronted with other circumstances, such as injuries to the suspect or a need to investigate at the scene. Officers in such a situation, the petition contended, should not have to make a judgment about whether they have time to get a warrant and whether there is a court officer available to issue one.

It is, the petition said, an “inescapable fact that, in every such case, evidence is disappearing and minutes count.”

American Civil Liberties Union lawyers, representing Tyler McNeely, urged the Supreme Court to decline to review this case, saying that it was not an appropriate test of the “exisgent circumstances” issue. They noted that the officer who took McNeely to the hospital had not made any calculation that there was no time for a warrant, because the officer did not believe one was necessary. “This is a strange case in which to construe the exigency exception to the Fourth Amendment,” the brief in opposition argued.

More broadly, McNeely’s counsel contended that there was no testimony in the record of this case “from a qualified expert on the complicated science of alcohol metabolism.” It argued that “an understanding of that science is critical to evaluating the categorical claim that any drunk driving arrest presents exigent circumstances that, in every instance, justify a warrantless blood test. Because the science is both complicated and contested, proper resolution of the constitutional issues in this case would be enhanced by a fully developed record.. This case does not present one.”

In any event, McNeely’s counsel said, it was not clear that a decision on the Fourth Amendment question would affect the outcome in this case. The arresting officer in the case was an experienced patrolman, who already has testified that McNeely was unstable at the scene of the traffic stop, and that McNeely failed the field sobriety tests — a failure, it noted, that is preserved on a video recording. Moreover, under Missouri law, the brief said, the refusal of a person arrested on suspicion of drunk driving is admissible as evidence against the individual at the trial. While the state may yet not win a conviction of McNeely, the lawyers argued, the blood test is not the only evidence that the state has available to use against him.

The Supreme Court, probably focused on the split in lower courts, granted review on September 25.

Briefs on the merits

The state of Missouri, in its brief on the merits, has chosen to keep it simple: it treats the chemical dissipation of alcohol in the human bloodstream as a certainty, not a probability, and therefore argued that “it is an indisputable fact that the best and most probative evidence of the crime was in the process of destruction” as soon as McNeely was stopped in his truck. In the fact of that certainty, according to the brief, the Missouri Supreme Court ruling “actually requires the police to stand by and allow the best and most probative evidence of the crime to be destroyed during a drunk driving investigation (emphasis in original).”

As other arguments in favor of always treating the need for a blood sample as an “exigent circumstance,” the state relied upon the split among state supreme courts on the meaning and scope of the Schmerber precedent, and it argued that taking a sample of blood from an individual is such a minor intrusion into the body that it is clearly outweighed by the importance in enforcing laws against drunk driving. “The public interests far ouweigh the privacy interests of the individual,” the state brief asserted.

While the state conceded that the rate of dissipation of alcohol “will vary from person to person,” it argued that “it is generally accepted in the relevant scientific commuity that alcohol dissipates from the human body at an average rate of between 0.015% and .018% per hour, and, for heavy drinkers, the elimination rate may increase to as rapidly as .022% per hour.”

Tyler McNeely’s brief on the merits began with an attempt to minimize the signifiance of this case. Drunk drivers, its opening argument asserted, will still be removed from the road even if blood samples are not taken because, as in Missouri, once an individual refuses a blood test at the moment of arrest, the state will immediately revoke that person’s driver’s license for a year. Moreover, it said, this case does not completely ban warrantless blood tests on police orders, because the Schmerber precedent allowed just such a test and that precedent is not being questioned here.

What is at stake in the case, that brief contended, is whether “the police can compel a warrantless blood test in every DWI case (emphasis in original).” If the “special facts” that the Court found to exist in the Schmerber case, and if there is no reason to believe that a warrant will be unavailable, the brief contended, there is no justification for a categorical rule that a blood test can always be demanded over the suspect’s objection, the brief argued.

Although Missouri had insisted that it was promoting a “totality of the circumstances” test, the McNeely brief said, it was actually promoting “categorical balancing rather than fact-specific determinations.” Under the Fourth Amendment, the brief went on, the facts in individual cases are supposed to count. McNeely’s counsel sought to remind the Court that his case was, indeed, a criminal case, and police wanted a sample of his blood precisely “to secure his criminal conviction.”

The brief also contained its own scientific discussion to counter the state claim that alcohol rapidly dissipates in human blood. Given the blood alcohol level at which McNeely tested some twenty-five minutes after his arrest, “it would have been almost 4 hours before his blood alcohol level was below legal limits.” Given that both a prosecutor and a judge were on call on the night McNeely was arrested, that interval was enough to get a warrant, the brief implied.

The federal government has stepped into the case on Missouri’s side, and its merits brief arguments closely paralleled those advanced by the state. For emphasis, the government brief sought to portray the Schmerber precedent essentially as settling the Fourth Amendment question, and it treated that decision as establishing that in every drunk driving case, the “essential risk of lost evidence” should be the controlling factor. There is nothing in the Schmerber discussion of the facts of that case, according to the government filing, that focused on the time it would take to get a warrant. There does not have to be a prospect of complete destruction of blood evidence in order to justify a warrantless blood sampling, it argued.

There is a limited array of amici filings in the case, with Missouri supported by thirty-two other states, the District of Columbia, and Guam, along with prosecutors’ organizations and Mothers Against Drunk Driving, and McNeely drawing the support of criminal defense organizations, the libertarian legal advocacy group the Rutherford Institute, and by a group of law professors.

Analysis

The social menace of drunk driving hangs over this case, and is likely to have some influence on how the Justices react to the legal concept of “exigency.” But contributing also to some likely sympathy for the interest of the state in enforcing drunk-driving laws is a general perception by this Court that taking a sample of bodily fluids is not a very substantial invasion of bodily integrity. The Court has had little difficulty rejecting Fourth Amendment challenges to urine testing, and may have not much greater difficulty seeing a simple draw of blood by a hospital aide as an entirely ordinary experience for virtually everyone: it is minimally invasive.

If there is a difference, of course, it is that a blood test in a drunk-driving case is virtually a guarantee of conviction: as Missouri has told the Court repeatedly in its filings, it is the best evidence there is of drunkeness, because it has the aura of science about it. If the Court takes that certainty as a serious proposition, it may hesitate before it allows nonconsensual blood sample in every case of drunk driving, regardless of other circumstances.

There is some disagreement between the parties in this case about how rapidly alcohol dissipates in the human bloodstream, but the Court has already accepted, in the Schmerber precedent, that that chemical phenomenon is a reality, and that it has Fourth Amendment implications. Unless the Court is going to insist upon harder scientific evidence of such dissipation, it is likely to accept the state’s citation to chemistry as an established fact.

That may make the case turn, then, on the perception the Justices have about the process of getting a warrant in the middle of the night. Drunk-driving arrests quite typically happen at night, and often in a roadside setting. What is the common experience, especially in small communities, about the availability of a judge for processing a warrant request? Is someone likely to be on call, or not? The state of Missouri and its supporters in the case do not want the Court to dwell on those considerations; they want a hard-and-fast rule that a sample should be routinely an option, in every case. Before the Justices accept that, they may have to make a judgment about whether the qualifications written into the Schmerber precedent really were limitations of constitutional significance.

Recommended Citation: Lyle Denniston, Argument preview: Blood tests and privacy, SCOTUSblog (Jan. 7, 2013, 5:18 PM), https://www.scotusblog.com/2013/01/argument-preview-blood-tests-and-privacy/