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Leonardo Angiulo: Are Forced Blood Tests Constitutional in DUI Arrests?

Monday, January 14, 2013

 

There are a few things that we as citizens take as givens in our life. For example, we have in our minds that law enforcement are here to keep us safe, but the means they can employ in doing so are limited. Courts all over the country are consistently deciding where the line is between permissible and impermissible tactics.

Take drunk driving as an example. It is known that people who drive their cars while under the influence of alcohol are a safety risk to those on the roads with them. Exactly what officers can do while investigating their suspicion of whether a person is under the influence is an often-litigated question. On Wednesday January 9, 2012 the U.S. Supreme Court opened the next chapter for this question by hearing oral arguments in the case of Missouri v. McNeely. The essential facts of this case include a person stopped for speeding and then arrested on suspicion of drunk driving after agreeing to field sobriety testing. The issue in the case comes from the arresting officer's reaction to the defendant refusing to provide breath samples for testing of alcohol content.

The officer chose to drive straight to a local hospital. While there, the defendant refused to consent to a blood test. The officer then directed a technician to draw blood from the defendant. According to briefs filed by the parties, the officer was aware that there were processes available for a search warrant that evening and such warrants were regularly issued for the drawing of blood from people accused of drunk driving. The officer, in this case, chose to proceed with the search without securing the warrant.

As we all learned in school, warrants are essentially written permission by a member of the judicial branch granted to a member of the executive branch to conduct searches and seizures of people and property. This requirement is found, at the federal level, in the Fourth Amendment and is designed to protect against arbitrary intrusions by law enforcement. As stated by the Supreme Court in Schmerber v. California, 384 U.S. 757 (1966) these privacy rights granted by the Constitution are consistently seen as within the core of our free society.

That same decision of Schmerber v. California is available in your search engine of choice and discusses the question of blood testing after arrest for drunk driving. In that case, the court ruled that a warrantless blood draw was constitutional. That decision was premised on the facts of that individual case where a risk of the loss of evidence was created because of the delay involved in securing a warrant. The court found that the time required to get a warrant, and the fact that alcohol dissipates from the blood stream, justified the warrantless intrusion of the defendant's person for the collection of evidence.

Of note, however, is that Schmerber v. California was decided in 1966. In the last 44 years technology has changed dramatically and law enforcement's ability to apply for, and the judiciary’s ability to grant, search warrants at all hours of the day and night is nearly limitless. If the warrantless search in Schmerber was based on the risk that evidence would dissipate before the warrant could be secured, and that risk no longer exists because of technology, what is the next logical step for precedent?

Fortunately for me this column doesn't need to answer this question because the Justices of the Supreme Court will be handling that, as well as other issues, presented by the facts of Missouri v. McNeely. It does, in this author's opinion, highlight how individual facts and circumstances affect the application of the Constitution. In many ways, its impressive how no matter how many centuries go by its provisions never become obsolete.     

 

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