Drunk driving: Supreme Court considers whether forced blood tests are OK

US Supreme Court justices grappled on Wednesday with whether police should be permitted to force suspected drunken drivers to submit to a blood test without first obtaining the approval of a neutral judge.

At issue in the case is whether law enforcement officials should be allowed to bypass the usual warrant requirement because any delay in collecting a blood-alcohol sample would permit the ongoing destruction of evidence through metabolism.

John Koester, an assistant prosecuting attorney in Jackson, Mo., urged the court to establish a new rule that would allow police to force suspected drunken drivers who refuse to submit to a roadside breathalyzer test to undergo a forced extraction of blood to conduct a blood-alcohol test.

The case, Missouri v. Tyler McNeely (11-1425), pits the requirements of the Fourth Amendment against the need for effective enforcement of drunken-driving laws nationwide.

In 2010, driving while intoxicated resulted in 10,228 deaths – roughly one every 52 minutes, according to the group Mothers Against Drunk Driving.

At its most basic, the Fourth Amendment requires that Americans be free from unreasonable searches and seizures.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into somebody’s body?” Justice Sonia Sotomayor asked.

Mr. Koester replied that if the court established the proposed new rule, more motorists would probably agree to a roadside breathalyzer test to avoid the needle and blood test.

In general, most searches are deemed reasonable after a police officer armed with probable cause to believe a crime has been committed obtains a court-authorized warrant justifying a search.

The Supreme Court has carved out an exception to the warrant requirement whenever police encounter exigent circumstances suggesting the imminent destruction of evidence.

For example, if police are outside a home and have probable cause to believe that drugs are about to be flushed down a toilet, they are authorized to enter the home without first obtaining a warrant.

The question at the high court is whether the same exception should apply to a blood-alcohol test.

Obtaining a warrant in the Missouri case would have taken anywhere from 90 minutes to two hours, Koester said.

“Every minute counts,” Assistant Solicitor General Nicole Saharsky told the justices, while urging the court to approve the proposed new rule.

Several justices were openly skeptical.

Twenty-five states require police to obtain a warrant before drawing blood from a suspected drunken driver, the court was told.

Justice Anthony Kennedy observed that those states are apparently able to obtain warrants fast enough to continue to prosecute drunken drivers.

“Is there any showing that the conviction rate in those states is lower than in the states where the practice is to take the test without the warrant?” Justice Kennedy asked.

Studies show it has no bearing, Koester said. But, he added, it is beyond dispute that any delay inevitably degrades the quality of evidence against a suspected drunken driver.

Steven Shapiro with the American Civil Liberties Union argued against the warrant exception. No warrant is necessary, he said, for a police officer to require a suspected drunken driver to perform a battery of field sobriety tests, such as touching his nose with his finger or walking a straight line.

“But there is no doubt that putting a needle in somebody's arm triggers a warrant requirement,” he said.

Justices Kennedy and Samuel Alito asked Mr. Shapiro what should happen in a rural jurisdiction where it might not be possible to quickly locate a prosecutor and judge to obtain a warrant before a suspected drunken driver begins sobering up.

“Does that count as a circumstance that would justify a warrantless taking of blood?” Justice Alito asked.

No, Shapiro said, a state should not be able to take advantage of its own failure to modernize and create an expedited warrant procedure.

But the ACLU lawyer went on to say that at least 25 states have found that they can prosecute drunken drivers without a special warrant exemption.