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Subscribe to RSSThe Supreme Court is back in session, with several big cases and decisions yet to come on issues of civil rights including the voting rights act, same sex marriage and affirmative action in school admissions. NBC's Pete Williams reports from Washington.
The U.S. Supreme Court will hear arguments Wednesday in a landmark Fourth Amendment case that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are taken without a suspect's consent.
The case involves a traffic stop in Missouri, but its ramifications could range far wider, potentially rewriting drunk-driving laws in all 50 states.
"It comes down, basically, to are you going to see blood draws every single time someone gets pulled over for a DUI," said Michael A. Correll, a litigator with the international law firm Alston & Bird, who examined the legality of blood draws in the West Virginia Law Review last year.
Because drunk-driving stops are such an everyday occurrence, "it's going to affect a broad area of society," he told NBC News, adding: "This may be the most widespread Fourth Amendment situation that you and I are going to face" for the foreseeable future.
Writing last month in the journal of the Texas District and County Attorneys Association, Lauren Owens, a research attorney for the organization, said, "The outcome of the case could lead to a dramatic increase in the number of DWI cases supported by blood evidence."
The case began in October 2010, when Tyler McNeely of Cape Girardeau, Mo., about 100 miles south of St. Louis, was pulled over for speeding. According to court documents, McNeely was unsteady and failed field sobriety tests, so state Highway Patrol Cpl. Mark Winder asked him to take a breath test.
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When McNeely refused, Winder took him to a hospital, where McNeely refused to take a blood test. Winder told the lab technician to take a sample anyway. The record shows that at no time did Winder seek a warrant compelling the test, which indicated that McNeely's blood-alcohol level was almost double the legal limit.
But McNeely's lawyers persuaded the trial judge to exclude the evidence as a warrantless search in violation of the Fourth Amendment to the U.S. Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Here's where it gets complicated. Earlier in 2010, the Missouri Legislature changed the state's "implied consent" law, which says that if you drive on Missouri's roads, you've automatically consented to take a sobriety test.
The previous language said explicitly that if you refused to take a test, then "none shall be given" and the refusal itself could be used as evidence against you.
The new language left out the four words "none shall be given," re-emphasizing that the driver had consented simply by having gotten behind the wheel in the first place. Winder testified that he had read a journal article about the change and said he made a "conscious decision" not to seek a warrant "due to the law changes."
On appeal, the state argued that no warrant was needed because of a 1966 U.S. Supreme Court ruling in a California DUI case that laid out circumstances under which law enforcement could order a blood test without a warrant.
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In general, a person's blood is protected under the Fourth Amendment, Justice William Brennan wrote in Schmerber v. California (.pdf): "Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned."
But Brennan noted that Armando Schmerber, the driver in the California case, had been in an accident. Because the officer had to investigate the scene and make sure Schmerber was taken to a hospital for treatment, "there was no time to seek out a magistrate and secure a warrant" before the driver's body metabolized the alcohol in his system, Brennan wrote.
So Brennan carved out what he called a "stringently limited" exception to the Fourth Amendment's warrant requirement because of the likelihood that evidence — the alcohol in the driver's blood — would be destroyed during the delay. That clause has come to be known as the "exigent circumstances" or "special facts" exception.
Missouri argued that delaying McNeely's blood test while the officer sought a warrant amounted to an exigent circumstance because the alcohol in his blood would be destroyed. McNeely argued that because his case involved a straightforward DUI stop — he wasn't in an accident, unlike Schmerber in 1966 — Winder had plenty of time to seek a warrant.
Missouri's Supreme Court agreed with McNeely in January 2012, writing (.pdf):
The patrolman here, however, was not faced with the "special facts" of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. ... The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.
As the court itself noted, Brennan stressed 47 years ago that his analysis was expressly limited to the facts of the Schmerber case, but that hasn't stopped various state and federal courts from referring to it over the years, not all of them reading it the same way.
So in May, the state of Missouri asked the U.S. Supreme Court (.pdf) to step in because "this emerging conflict on a fundamental Fourth Amendment issue will likely continue to divide courts throughout the United States."
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The federal government has sided with Missouri, writing in a friend-of-the-court brief (.pdf) that "the fact that the evidence of intoxication is necessarily leaving the suspect's system provides the required exigency." Prosecutors from across the country joined to file a similar brief (.pdf).
But the American Civil Liberties Union, which is representing McNeely, argued that there were no special circumstances trumping the Fourth Amendment.
In any event, it told the Supreme Court (.pdf), the issue is groundless, because — as he testified himself — the arresting officer ordered the blood test because he thought he could, not because of any "special facts." That means it's "a strange case in which to construe the exigency exception to the Fourth Amendment," the ACLU argued.
The court's decision is likely to come down to one simple question, Correll said: "Did Schmerber create a blanket exception to the Fourth Amendment or didn't it?"
"What does the court indicate the emergency is?" he asked. "Is the emergency the inability to get a warrant in a set period of time, or is the emergency that the blood alcohol is dissipating?"
As for McNeely, he's not off the hook even if he wins. Under a separate law that isn't at issue, his driver's license was revoked because he refused to take the breath and blood tests. And both sides agree that the blood test wasn't the only evidence against him, meaning he could still be convicted of felony drunk driving.
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Where's the hospital or medical staff liability in all of this? I thought a person had the right to refuse any sort of medical treatment.
culheath,They do have that right.This guy,although was guilty of drunk driving,should file a lawsuit against the hospital and their technician.
On the same line, your blood, your lab results. What about HIPAA laws? The are releasing your medical information without your permission. I don't like needles. They would have to fight me to get it. But I don't drink. :)
Culheath: absent probable cause, and an ensuing court order, I can/will not draw any tissue samples to produce evidence. Paramedic/EMTs have been convicted of felonious assault for conduct that violates a patient's express right to refuse treatment. A felony conviction effectively ends the career of any licensed healthcare professional.
Trooper on scene tosses me a vacutainer, says he needs a blood sample. I toss it back to him, asking: where's the court order? Response: don't have time for one. Make the time, or risk the charge of willful interference during a medical emergency, also a felony. I don't like making threats, just promises. Law enforcement may be immune from prosecution in these cases, but it might not sheild me from malpractice if the subject sues.
Professional organizations (National Registry EMTs, Nationl Association EMTs) have advised members that compliance can exceed scope of practice.
They already do all the time. I asked for a lawyer in Manila Utah before they asked me any more questions and they came in with 6 guys and beat me to a pulp, then held me down and forced a blood test on me. I was left in the middle of the floor, blood and bruises all over my body. Then they lied to justify the beating they gave me and lied on the stand of my trial saying, OH the cameras were not working on the day they beat me up so bad. I had doctors reports that said I had been beaten up, I had blood in my kidneys and we took pictures of the massive bruises all over my body. Yet they did nothing to that crooked court, but the good thing is, they lied on the stand So help them God and in their great Mormon faith, Well we know where liars go, cheats and thefts since the courts also stole my fathers $4000 bond after they held court without me being there, Jury trial withe a fixed jury, a piece of trash public defender who I wanted replaced and the judge said no. He wanted to hold court without me having an attorney and when I said NO to that. He held court without me even being there and convicted me to prison.. For picking up beer cans on the Green River below Flaming Gorge. yea picking up other peoples trash and I go to prison for that..So we know this countries judicial system is so corrupt and crooked today. They can do as they please and my case was 15 years ago, it's gotten 10 times worse since then and a person has no rights as soon as the police are involved.. Period..
" the good thing is, they lied on the stand So help them God and in their great Mormon faith, Well we know where liars go, cheats and thefts"
I have a feeling you'll be joining them there, as your story is BS.
He was standing there with a GUN telling them to draw the blood. think the nurse wanted to go to jail.
Go to jail for what? Cops have no medical authority.
If you smoke your marijuana at home instead of driving THEY will come arrest you and steal your home and personal property, take your children, wreck your marriage, fine you, throw you in prison, take your job, brand you as a criminal and most likely even shoot your dog.
And this all happened to you?
nobody does the right thing anymore, it is all about rights... why do you people deserve such 'rights' when you do the wrong thing?
WTF are you on about, wanker?
WTF is right. Let us prove they did wrong without abusing the suspect by poking holes in them and draining some blood. Even guilty people are supposed to have rights.
I don't get you guys. If you didn't do anything wrong in the first place you wouldn't have to worry about the laws. Do you not realize that the reason these things get done this way is because no one takes responsibility for their actions anymore? If you don't drink and drive or do drugs and drive this would not even be an issue, instead you complain about your rights while forgetting that there is accountability for doing the wrong thing. You rant and rave about parents not teaching their kids to do the right thing and yet you don't apply that reasoning to your own behavior. You all sit here at a computer blubbering about this because it means that maybe you cannot get away with breaking the law if it is ruled that it is okay by the Supreme Court. Over and over again I see the same people commenting on stories like this but how many of you don't speak out against drunk driving? Instead you blabber about what would happen to you if caught? No wonder this world is getting stupider. Drinking and driving is not a right, it is a complete wrong!
I will comment one can never afford to give up any rights no matter what. You can not bend in any area were your rights are concerned the danger is the groups looking to trample on your rights will all ways take it to the next level. Weather you like it or not the Constitution is very, very clear when it comes to, Self Incrimination. The majority of you are intelligent enough to know this to be factual. There are systems in place for Law Enforcement that cover the gathering of evidence. Let them use the system however slow it may be.
But on another note I have been and will be again on the Jury were intoxicated drivers were on trial. My position is this. You have the right to refuse any testing and I support your right, but when you refuse testing that would confirm your innocence. At that point you are guilty and I will and have ruled that way and will again.
At my age I've seen a LOT of incompetence with regard to medical tests, including blood tests for routine checkups. I think blood test would be a health risk as well as the screwed up records. There are safer options than cop-doctor wannabes. BAD IDEA. I'd be willing to give them a pee test in their squad car
When you take the breathalyzer test you take it to prove you are not drunk driving. By not taking it you are admitting you are drunk. They will be much harder on you if you do not. I think that Winder was looking for something he had no probable cause to look for. He had the conviction when McNeely refused.
"By not taking it you are admitting you are drunk" Not necessarily. Maybe some people refuse it on principle. 4th Amendment right to unnessary and unreasonable search & seizure.
This is what complaceny brings.
I see this thread has been taken over by the drunks who believe it's their constitutional and god given right to drive under the influence. And when questioned they have the right to "non incrimination"! Bwhahahahah.... what a bunch of whining kids.... I know 12 year olds with more integrity and desire to be responsible or accountable.
Sure, blame the cops when you break the law!!! Has this country always been so full of morons and losers or is it a recent occurrence?
I suppose the freely elected Congress is a perfect example of the character of the American people.
@Andrew, "Sure, blame the cops when you break the law!!! Has this country always been so full of morons and losers or is it a recent occurrence?"
Most of the morons and losers came on strong right after 911. They are called: police and government on a severe power trip.
Think again, Andrew. He refused the breathalyzer after failing the field sobriety test. At that point right there, the cop could have taken him in and filed charges.
Has anybody on this thread advocated for drunk drivers?
MPA- the laws are different in each state. Some are more well written than others allowing for fewer loop holes and confusion.
I have no problem with people driving under the influence, if they don't hurt anyone. If you can drive from point A to point B without wrecking, then there is no issue. I think penalties should be stronger if you do hurt someone.
In ALABAMA if the voting right have changed in Alabama ----- why is Alabama trying to change it now ? ? ?
The ONLY reason why ALABAMA wants to change the VOTING RIGHTS of all people is to go back the way they
they were PRIOR TO the 1960's. All ALABAMA wants is to take away your VOTING RIGHTS FOR ALL MINORITIES.
.
What are you on about?
Can we take their blood?
No problem for me anyway--I have a rare medical condition where consuming large amounts of whiskey leave me completely nOOOrmmmal ossifer sir!
If someone draws your blood against your will it's called "assault." In a hospital, a patient (whether an inpatient OR an outpatient) has the legal right to refuse ANY test or procedure. Period. In some cases it's not in the patient's best interest to refuse a test or procedure, but they still have that right. And unless that person has legally been found to be mentally incompetent or unable to make an informed decision, to perform a procedure (including a blood draw) on someone who has refused said procedure amounts to criminal assault.
But let's assume the person gives his/ her consent for the test. I've seen a lot of screw-ups in the handling of blood and urine specimens, so if these fools are going to charge this person with a crime based on a blood draw or urine sample, there has to be specific steps and precautions in place for the purpose of making sure the specimen is from that particular person, and that there was no mix-up or mislabeling of specimens.
In my state, you refuse a breathalyzer test, you lose your license for 4 months. Period. No exceptions.
Wrong side of the road???This isn't England?
Can he sue the hospital or technician for drawing his blood without consent?
I hope he does. And he'll win big if something goes wrong as a result of the blood draw. NOTHING done in a hospital is without some form of risk. That's why you have to sign an "informed consent" form each time ANYTHING is done. You think every needle used is a fresh one? You HOPE it is!! I've seen blood draws by incompetent phlebotomists resulting in a hematoma the size of Cleveland. Phlebitis, collapsed veins, vessel trauma so severe as to render the vein non-functional, sepsis, cellulitis....not a pretty picture. And we think we have to give up our right not to have our bodies subjected to potential trauma because we get behind the wheel of a car? THINK about this, folks. Sure it's easy to say, "Well he shouldn't have been drinking," but what if it were YOU, and you HADN"T been drinking, but some cop thought you had?
The hospital and lab tech were working within the law. And that is what the field sobriety tests are for, if you havent been drinking you should be able to pass the tests before being arrested and brought to a hospital. Think about what you guys are saying, do you really think an officer wants to waste time doing all that paperwork and going to the hospital and the jail? And assuming you do think that, then how long do you think he would be an officer if he kept arresting people that are sober?
Read the article, thinkingoutloud. The man REFUSED the test, his blood was drawn ANYWAY, and the "evidence" was thrown out because of a warrantless search. THe hospital and lab tech were certainly NOT working within the law. You need to think about what YOU'RE saying. A person has the right to refuse a test at a hospital, even a blood draw, (same as they have the right to refuse a breathalyzer test). You draw the blood anyway, and you have committed criminal assault.
I did read the article, and in that state it is legal. The lab tech WAS working within the rights of the law. The law in that state says you have implied your consent. Doesnt matter what you say when you are actually asked to do so. Say no all you want, your blood will be taken.
Alaska-This is different. This is a medical procedure but it is being done for a non-medical purpose. In this case the lab tech has to comply, at least in WI. They are protected as they are acting as an agent of LE. There have been, on rare occassions, techs that refused. They then have to deal with their employer and/or be arrested. Yes, seriously.
Not even kinda surprised.
Hel! NO I WILL NOT give a blood sample because some dumb as a stump police ossifer wants to screw with me. Like someone else posted. Ill give a stool sample in the palm of their hand but thats about it. Screw this country for taking away the rights my grandfather and others have fought for us to have. If George Washington knew this sh!t ws going on he'd roll over in his grave.
Our Government and all elected officials are the worst kind of scum and criminal out there. They are the ones you need to fear.
I fear people who think like you. Sorry you are the offspring of people who fought to protect people who get drunk, kill innocent people, and then hide because of some phony interpretation of the Constitution that I believe George would find appalling.
In Wisconsin they can take blood for 2nd and subsequent offense OWI. The first OWI is just basically a traffic ticket. It has nothing to do with post 9/11 as someone suggested. And no one is taking DNA from it. And for the person that suggested the officer did not read the law....seriously? I am a dispatcher, and I read the OWI laws. You get your freebie on the first one, you can refuse the test and fight it in court. After 2 or more, than you have a problem and I dont want you on the same roads I am driving. All blood is taken in the hospital, not out on the side of the road. America has a drunk driving problem, it is not uncommon to see someone arrested for their 5th, 6th or even more OWI. In 16 years, I have never seen an officer want to go to the hassle of bringing someone to the hospital, hanging around there for however long it takes, then do the hours of paperwork on just a whim. When you accept your drivers license you are also agreeing to make sure you are fit to drive. Its pretty simple, if you dont want to have your blood taken against your will, dont drink and drive. You want to drive...then you have some responsibilities.
Before you fall victim to this weighty legal issue...here is the 1st thing to do to protect yourself: Don't drive around drunk. Problem solved!
When the 2nd falls the 4th and 1st will follow, guess there in a hurry to make us subjects.
Yes, Dirp
They will come into everyone's home "anytime they want" and sucK our blood. Wait! Except for those thousands of dead people, killed by DRUNK DRIVERS EVERY year.
And what about all those people who were accused of being drunk who actually WEREN'T?? You think cops can tell a drunk person EVERY SINGLE TIME?? You are so WRONG it's scary!!! Ever hear of, among other conditions, hyperglycemia? It's a medical condition in which the person APPEARS intoxicated, but is suffering from too much glucose in the blood due to their body's inability to release insulin. And what about folks who take prescription CNS depressants and maybe shouldn't be driving, but they do? Wanna arrest people for being stupid??!! Good luck with THAT!!
I have seen several traffic stops where someone was pulled over for suspicion of OWI and in fact were having a medical issue. Each one resulted in an ambulance being called to the scene, no arrest made. Officers are trained on this issue. Has it ever happened? Probably. But I am sure once they got to the hospital for the blood draw I am willing to bet if the officer missed it then the hospital staff caught it. In any case, if someone shouldnt be driving because of medication, it is the same as OWI. Impaired is impaired and they dont belong behind the wheel.
Alsaka -
use to be drunk driving (DUI) , is now driving while impaired. That can include even being sleepy here in NC - I assume in other places as well.
if you want to play the game then you must pay for the game.
all the potheads across america want to legalize pot. then cops taking your blood i say this is a very good idea.
at some point the insurance industry will step up and force everyone to submit blood for drug use. why should my rates go up because pot was legalized. you potheads want it legalized then you pay the price.
if your a pothead, no healthcare insurance, if your a pothead, no life insurance, if your a pothead, no car insurance.
If you don't know the difference between 'you're' and 'your', no posting on vines.
And in case you aren't intelligent enough to realize (and by your post and inability to spell 'Against' in your boardname, you aren't), I'll try to explain this to you slowly....just because one smokes a joint every now and then they aren't a 'pothead', just like someone who has a drink every now and then isn't an 'alcoholic'.
Every state has adequate safeguards and laws to deal with those accused of DWI. Driving is not a "right", it is a privilege. Refusing to submit to a field sobriety test or "breathalyzer" gets you arrested and/or driving privileges suspended or revoked. It's not rocket science. Field sobriety tests and "breathalyzer" results have been successfully fought in courts. These are the tests of choice and more often than not, are accurate. Drawing a blood sample w/out a warrant is invasion of privacy and forced self incrimination...both violations of protected rights. Be wary of supporting such a gross violation of your rights, based on ridiculous, emotionally driven, knee jerk impressions. Remember, the laws apply to everyone...well, almost everyone. Something to ponder.
The United States GOVERNMENT--a.k.a. OBAMALAND--has all ready dismantled our Constitution and our rights to the point that if Thomas Jefferson and the founding Fathers would read it today they would not even recognize it to be any semblance of the document they intended. Our "GOVERNMENT" SEEMS TO FEEL LIKE THEY ARE NOT DOING THEIR JOB IF THEY DO NOT PASS A NEW LAW EVERY WEEK AND A NEW AMENDMENT EVERY YEAR! I don't even recognize this country from what it was in my teenage years in the 1970's, and we are getting dangerously close to a SOCIALISTIC/COMMUNISTIC regime: Adolph Hitler once dismantled the DEMOCRATIC nation of GERMANY prior to converting it into a demogogary that caused WWII and a Houlocaust that killed 70 million people. We are headed toward the same path--hell, we're on it--and if we do not stop it while we still reserve some power, we will lose our freedom, our rights for life, liberty, and the pursuit of happiness; and, we will lose our souls. Why do you think they want to take our firearms? Why do you think the forefathers insured we had a right to them? It was intended to allow the people to prevent some future President from usurping power from the people...not that they could forsee the government becoming so technologically advanced that we could do anything with small arms, and the disparity is so wide our only hope is that our children will follow their hearts if asked to turn on their people instead of some oath to a leftist President, (it is just the point); however, people kill people (that is a fact of life), and if they do not have firearms, they will construct bombs or poison people or whatever they can find to use to get the job done. When I was a kid I knew what the law was: policemen would drive you home if you were a little tipsy (not beat and arrest you), would pass out fireworks (not assume they were being shot at...), and they were seen as friends of the American People. Now we have so many laws you have to consult a law firm to fart in public to be sure you are legal, and the police think they are the Gestapo. This is insanity. We have enough laws, and we've lost too many rights. It is time the people stop the judiciary branch that has gone awry while we retain the power to do so. If not, WWIII is on the horizon and the end of personal LIBERTY assured.
So if you are impaired by DUI they have a right to charge you and take blood, if you are impaired by THC then they will also have a right to take your blood. So then we need to pass the law saying they can take you blood if you are texting and talking on the phone wile driving because it is obvious that you need to be sterilized because you could pass your stupidity on to further generations!!!