The Daily Item, Sunbury, PA

April 17, 2013

Forced Blood Tests Often Need Warrant, High Court Says

By Greg Stohr
Bloomberg News

Washington — WASHINGTON — Police in many cases need a search warrant before forcing drunken driving suspects to have blood drawn, the Supreme Court said in a ruling that boosts privacy rights on the road.

The justices Wednesday rejected Missouri's contention that police should never have to seek judicial approval. The state argued that officers can't spare the time given how quickly alcohol dissipates in the bloodstream.

Writing for the court, Justice Sonia Sotomayor said police need to seek a warrant when they can do so "without significantly undermining the efficacy of the search."

The ruling was narrower than it might have been, stopping short of declaring a categorical rule that police need a warrant. Sotomayor said that "cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization."

Even so, the ruling will have day-to-day implications across the country. More than 1.4 million people are arrested each year in the United States for driving under the influence, according to FBI statistics. About half the 50 states already have laws barring nonconsensual blood draws in the absence of a warrant.

The court splintered in its reasoning in the case. Only three justices — Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan — joined the entirety of Sotomayor's opinion.

The defendant in the case, Tyler G. McNeely, was pulled over for speeding in 2010 by a state highway patrolman in southeast Missouri. McNeely failed field sobriety tests and refused to take a breath test. The officer then took McNeely to a nearby hospital, where a technician drew blood over the handcuffed suspect's objection.

McNeely sought to block use of the blood test at trial. The high court ruling means prosecutors will have to use other evidence in their case.

Missouri argued that getting a nighttime warrant in Cape Girardeau County, where McNeely was arrested, takes an average of two hours, by which point a person's blood alcohol level may have dropped below the legal limit. The Obama administration backed Missouri in the case.

The state said alcohol typically dissipates in the bloodstream at a rate of 0.015 to 0.020 percentage points an hour. The limit in Missouri is 0.08 percent.

Missouri was seeking to exempt drunken driving cases from the normal rule that police must get a warrant for intrusive bodily searches.

McNeely's lawyers said police in Cape Girardeau County often get warrants in less than half an hour. McNeely's team also contended that modern technology expedites the process in much of the country, as officers file telephone or electronic applications with a judge.

McNeely's lawyers pointed to Missouri's "implied consent" law, which says drivers who refuse a blood or breath test automatically lose their license for a year. McNeely contended that law suggests that drivers have the right to refuse a blood test. All 50 states have implied-consent laws in some form.

McNeely, who had been convicted of drunken driving twice before, was charged with a felony that might have subjected him to four years in prison.

The blood test showed McNeely had a 0.154 percent blood alcohol level. The Missouri Supreme Court ruled that prosecutors couldn't use the test at trial, saying officers typically must seek a warrant before forcing a suspect to have blood drawn.

The Supreme Court had last ruled on the issue in 1966. In that decision, the court said the warrant requirement didn't apply in the case of a man whose blood was drawn in a hospital about two hours after he was involved in an automobile accident. The court said that case involved "special facts."

The high court in other rulings has said police don't need a warrant in situations of "exigent circumstances," as when evidence is about to be destroyed.