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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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The only time a blood test, or any test, should be taken, is if and when someone gets in an accident. No accident, than no need for Police at all. Get in an accident and it turns out you have something in your blood, then nail them to the wall. These road blocks and all the rest, are garbage. And unduly harrass everyone else on the road, while they are fishing for intoxicated drivers. Theres no need for that at all. Just test anyone that gets in an accident. And if they are high, then you have your criminal and court case. Of course there isnt as much revenue in that, is there...
They should not be testing anyone who hasnt actually done anything, or caused any damage yet.
So we should just let everyone drive around drunk? If they dont cause an accident then its OK? I just dont even know how to reply to that except to say wow. Just wow.
Unless they harm someone, who did they hurt?
A crime should require a victim.
Are you going to say they don't have the right to punish a drunk driver when he hits and kills your wife/girlfriend husband/boyfriend and or childern
I'll bet most of you didn't see the video of the man in Houston that got taken in for DUI by HPD. He was so against the blood draw that he admitted to the DUI. Still they fought him to the jailhouse floor, kicking
and screaming, and drew the blood. Hmm....nice clean jailhouse floor. Couldn't take him to a clean place? Funny how they only ran the video during one news segment in Houston.
I've had enough of this crap where people are subjected to such wrong. Blood draws, for real?
And to those of you that think driving is a privilege, get real, try going without transportation for a while and see if you still think that; do it before speaking out here again.
Are you sure this is what you want for your children, guilty or not?
Or maybe you want your blood drawn by the same caliber of officers that have been in the news lately for searching those two women on the side of the road. You know.....the one that didn't change her gloves between women and searched her backside before the frontside. EWWW GROSS......
F***in barbarians!
If we allow this there will be no limit to what they can search for later and no limit to what organs because we gave implied consent by allowing blood draws. Think I'm wrong? That's the same thing people said about being tracked and scammed and ID theft during the rise of cell phones, nah, couldn't happen.
I HAVE had my licence suspended, and gone without transportation, three different times, dude (or dudette)...
That is exactly what drove home the point that driving is a priviledge, and not a right...
Come on into the twenty-first century!
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.
And,.. if you're a halfwit,.. please don't breed..
Thanks...
@grains
Are you in the right post?
Gee, AgaintThe, I bet you're very patriotic and believe in freedom..but only for yourself, right? as long as people think and act exactly as you want, good. Otherwise, harass and prosecute.
And quit complaining about you wallet, and how everyone is costing you money. It's a silly arguement and beneath you.
no harm, no foul
garland texas does this, did to me nothing in my blood but that is me, they can and will charge you for possession after the fackt in every thing you have in your blood even if proscibed by a dr. have fun with that.... we are not even talking about drinking we are talking about all things, ALL, posission after the fackt it can be a fellonie as well just so all ya'll dumb ass mo fo's know.... nothing new here.
I have almost no clue what you just said, but if you are talking about drugs instead of alcohol, legal or otherwise, its the same thing. If you are impaired, you should not be driving.
I'm a recently retired Wisconsin LE officer. In WI if the arrest is for a crime, 2nd+ DUI, intoxicated with a firearm, etc. no warrant is required because your body is destroying the evidence and it is considered exigent circumstances. As the suspect you also have no right to choose which test is administered. If you refuse to submit, there is a separate charge so to speak which acts as one heck of a penalty enhancer. If the suspect does not cooperate the sample can, and is, forcibly taken. You also must submit to a blood test if you are involved in a serious crash whether you appear impaired or not. When you sign on the dotted line on your DL you are signing the implied consent and must abide by it or suffer the consequences. Driving is a privilege, not a right. This will be interesting as this court is all over the place. It recently overturned search of a vehicle incident to arrest. Bad cases make bad case law, no doubt. Blood tests must be used for drug tests as there is no alternative. There is one very simple solution to all of this, don't operate impaired and it won't be an issue. All this is doing is making a ton of money for a bunch of lawyers. They will drag it out, drain your wallet and then plea you out. Go ahead and make them get a warrant every time, it will just cost the arrestee and the taxpayer more and end up with the same result.
What if LE is wrong? I'll bet you have immunity laws. What if a suspect contracts a deadly disease like HIV, HEP C and so on, from this "required" procedure? What of nerve damage? Does the law provide for their care for life? What about the stigma? Would you want a family member to be subjected to an overzealous LE? Did you not read of the LE who was doing this very thing just a few weeks ago; falsifying DWI reports? Did you not see the forced blood draw video in Houston, where the suspect was "drawn" during a fight on the jailhouse floor?
Perhaps, as you say driving is a privilege, more of us should give up driving to dodge the fatal mistakes of others, including having our blood drawn. Without the requirement (privilege as most say) of driving I would save a lot of money, couldn't get to work though. It's OK though, I can just live off your taxes.
Barbaric behavior is just that....no matter how much it is colored with law!
You are arrested only after the officer has probable cause to do so, that is on the LE officer. That is an issue for court and if they were over the top wrong, sue. You are taken to a medical facility (usually the nearest ER) where the procedure is done by the same professional people who would do it if you were being treated as a patient there so no you are not going to catch some disease from the sterile needle and all your other fears. I think I saw about the officer and I think it was in Utah. Yes there are bad apples in LE as well as every other profession on earth. I'm glad she was caught and I hope she gets a significant sentence. People like her make it very difficult for decent cops to work without someone like you throwing it in our face all of the time. As far as fighting to draw blood, I have had to forcibly have blood drawn from suspects many times. We have a system to minimize problems. The suspect is never taken out of the handcuffs, placed face down on a clean gurney and pinned there while the blood is drawn. We always have enough help so the person never gets that out of control.
I don't want ANYBODY subjected to out of line or illegal LE behavior-period.
Barbaric is picking up body parts off the road, telling parents their child is dead, being paralized. People seem to conveniently forget all these types of details.
If LE is wrong in the arrest, then your blood test will show that and you will not be convicted. If a hospital is not using proper procedure than you handle it as you would any other time. As far as the stigma, not sure how that relates to the subject of a blood draw that comes after the arrest, any stigma would be the arrest itself, not the blood draw. As to the officer falsifying her reports, she was fired. Bet the people that had their blood drawn where happy to have the results of those tests. She is a bad cop. There are bad teachers, bad lawyers, bad in every profession. As to the video, I did not see that. But lots of intoxicated people become upset about being forced to give blood. Sounds like it was not the best place to take the blood, but the fight was probably due to his unwillingness to submit to the test. If the law there is to take blood, it will be taken whether you want it to or not. Sometimes force is needed to take it. If Houston has there own lab technicians working in the jail rather than taking every person to the hospital I dont see a problem with that. All you need is an alcohol swab and a needle, we arent talking surgery. Drunk people that have been arrested tend not to be too cooperative, but again, I did not see the video so I cant really say much more on that particular incident.
OK. So if I want to avoid the needle for sure, don't drive period. What comes next, blood draws for PI? Or is that in place already?
And I don't even drink alcohol.
No, don't break the law when you drive.
In WI we don't have a state law against public intoxication.
It's not just your state laws of WI that are at stake. This will be nationwide. Plenty of states have tough PI laws. Do you think it will be right to do draws on PI's? What about backyard BBQ's? What if intoxication is suspected? Maybe the teen at the bbq seems like he may have drank, do we poke him too? It's too far reaching.
If drawing blood is acceptable, why not make it SOP? Hell with the breath and the video. Gosh, we don't want to miss anyone that may be intoxicated so let us just test everyone.
I'm sure you know the law has been convoluted by LE to the point that looking into your house from a distance with thermal imageing is considered public view now. Just a comparison.
It'd be easy to rack up millions of dollars in fines and such and look at all the people we would keep safe if we could just blood test more.
Another bull@!$%# opinion by a "cop". Ever heard of a PISS TEST asshat?
Slight chip on your shoulder? For some drugs a urine test will show it is there but not at what quantity which is important for many drugs, like prescription drugs, to determine if they are within theraputic levels. Didn't pass chemistry did you? I assume you think I'm not a cop. Whatever. I'm retired now, but I put plenty of people like you in jail/prison. Must be quite a burden to go through life with that chip on your shoulder.
What I want to know is, if a person refuses a blood draw because of medical reasons, as in a person who faints every time they get blood taken, what then? Does that automatically make them guilty?
In Wisconsin, you can refuse a test only on your first offense. If you have a prior conviction, you can say no all you want, your blood will still be taken.
In WI you are taken to a medical facility and have it drawn by the same people who would draw it if you were being treated as a patient. If there are issues like fainting you are medically treated at the agancy's expense until you get over it and then you go to jail.
Thinking...you can refuse on the 1st offense, the blood won't be drawn but you will still get the refusal conviction and can still be convicted of DUI as well.
Yes, I am aware of that. Was just answering the question about the blood draw without clouding it up any further in the technicalities between first and subsequent in Wisconsin. I find it odd that so many people find this so surprising. Of course, many people seem a bit confused about what their constitutional rights are anyways which is part of the problem here.
People confuse rights and privileges all the time. They also conveniently forget they both come with responsibilities and must be balanced with every other individual's and society's rights as well.
So is life a privilege or a right?
I agree with the implied consent law. If you are out on the highway driving and the officer has reasonable suspension that you are drunk, they should be able to have a technician take the blood. If you're not, then the test will come back negative. The public has a right to be protected.
And what is reasonable suspension (BTW it is susPICION)? The mere fact that one is driving? Make the punishment for DRUNK driving fit the crime, but quit penalizing law-abiding citizens simply because LE has "little man" complex!
Only if you are Charlie Manson.
There is much more involved. The DUI enforcement has become a big money industry. First comes the lawyer, then the court costs and fines, booking fee, even if you are not held in jail, then the probation usually by a contracted company, then the classes at about $50 a week for 12 weeks, then counselling by a contracted physcologist for anywhere from 12 to 60 weeks at $50 a week, then possibly ignition interlock devices, and to top it off theres the MADD presentation at $50 payable only by money order. Big money not to mention the bribery of police agencies by the federal government to pay for overtime to set up enforcement programs. That's why the trampling of constitutional rights is rampant.
You are right, an OWI is a very expensive thing to go through. You will likely be dropped from your insurance company and pay heavy premiums with your next one for several years. Hopefully, if you drive impaired, that will be the worst thing that happens. Often times though, an innocent person or persons pay the ultimate price. Driving is not a constitutional right though. If you want to drive, you have to be willing to prove that you are able to do so safely. As a nation we have decided, and rightly so, to make driving impaired illegal. Not clear where you are getting bribery from this, but the simple solution is to drive sober.
George, Ever have to peel body pieces off a roadway? Tell parents their kid is dead? Or any of those other inconvienent things that are the result of impaired driving? Didn't think so. If you are too dumb to figure it out and not drive impaired, endangering countless innocents, then you can put up with a needle poke in the arm.
And why then the PRESUMPTION of guilt simply for being on the road? As a law-abiding citizen I do NOT have to prove innocence of a crime! What is next? Every citizen has to prove before the fact they are not a thief, a killer, a rapist? LE entering YOUR home at random to force YOU to prove you are not a criminal?
So will the cops now carry syringes on their belts, right there with the bullets and guns? What a great idea!
Sure. And they can also carry a few truth serum vials. Then they can question citizens about their thoughts and any future crimes they might commit in the future. Crime prevention, don't you know?
If we could trust cops to act reasonably, and responsibly, this might not be that big of an issue..
Exactly!. That is the whole problem with LE. Damn few act reasonably or responsibly. Most are steroid laden thugs with "little man" complex.
Hey Terry, I am a woman. Get over yourself already.
Barbaric behavior is just that....no matter how much it is colored with law!
What we need is a national militia that is not answerable to a mayor or governor or the president or the Congress, that can act, when the police is violating people's Constitutional rights. Democratically elect a small ruling council for the national militia, and have no political parties.
If 5 cops show up and harass citizen(s), 50 armed militia show up. If 50 cops show up, then 500 armed militia show up.
If the cops use force and fire 100 bullets at the militia, the militia fires 1,000 bullets back at them and then bags the cops up in plastic.
pagan,time to sleep!!!
Your ideas are why the people need guns to protect ourselves from people with ideas like yours
Compromise now: People like you are tools of fascism and useless sheep who I think it would be amusing, not tragic, to see rounded up into death camps the way people were in Germany. Didn't Hitler believe that security was more important than freedom? So do you.
Sheep like you would probably sing in the shower when the Zyklon B gets hosed in. I wouldn't be around to laugh, because I would have probably already died resisting the formation of a police state, along with everyone else who's balls didn't drop off like yours.
ban blood test .
With this in Place we can disband the ACLU and start to round up the drunks and criminals and make the USA a safer place to live. "Round em UP
the blood test ain't nothing compared to the overkill fines, jail time, court ordered treatments, lawyers fees, insurance rates, suspension time, drivers license reinstatement fees, loss of job, wife, kids, etc.,, everybody involved is getting a piece of that action,,,,
It's not the blood alcohol level. (though that can certainly be a factor)
A police has every right to pull somebody over for unruly/dangerous driving even with ZERO alcohol in them!
If you are a danger on the road, it's irrelevant how much you drank. You should not be allowed to drive!
If you dont pass the sobriety test whats the need to for a blood test seems like overkill , they used to just jail you untill sober , but now that theres lots of dollars, they want to hang you, not to hard to tell if someone is to drunk or impaired to drive,fine him and get him off the road,repeat take his privilages away,problem solved
Because lawyers get involved and some people fight the charges. It is becoming much easier with the video systems in squads though. Pictures are worth a thousand words and then some.
I think the cops should take a blood test before taking out the cruiser to make sure they are not drunk or on drugs. If they are ok with that then I am ok with them taking my blood.
Do you submit to a blood test every time you report for work? I dont know if its the law or not, but I do know that in the agency I work at, any time there has been a serious incident, such as an officer firing his weapon, the first place he has gone is to go get a blood test. And they very willingly go.
States have micro legislated things to a point that they have taken our Fourth Amendment Right and basically shredded it to pieces. It is not anyone's RIGHT to drive in any state it is a given priviledge, however from what I read in this article, the trooper had no right to insist on a blood test. He had already failed the field sobriety test and so what the driver refused to blow which is his right.....The trooper over stepped his bounds clearly...even though under arrest...my argument is now this simply....did the prisoner need medical attention? if the answer is NO...then why were you at the hospital? Gathering evidence because a driver exercised his right to refuse to blow into your machine? Just for the record....when a cop asks if you have been drinking...Do not answer the question! Ask why you were pulled over....if they insist and pull you out of the car for the sobriety BS....State to them....I am more than happy to perform anything you would like in the presence of my attorney so am i being detained? am i free to go? if they then slap cuffs on you do not speak to them at all....insist on calling your attorney and that is it....Also understand i have friends who were hit with DUI and police do not read you your rights until you are in the station house.....so they are illegally detaining you and breaking many of your civil rights....because of the "per se" laws....
The trooper had every right to get a blood test. The law in that state allows it. It is taken at the hospital. You are also very mistaken on your attorney rights. Refusing to do the tests without an attorney is only going to add a refusal charge to be added along with your OWI. You do NOT have the right to have an attorney present during field sobriety tests. So many people also are very misguided about the miranda warnings also. Everything is not like it is on TV.
@Krikit214
Well said! It works! I have done it myself, stone cold sober. It will piss of the LE thug, but if they have one iota of intelligence they will realize you KNOW YOUR RIGHTS, and if you politely but still firmly exercise them you will come out victorious. At least for the time we still have some constitutionally protected rights, and it is imperative that we as patriotic citizens know and exercise them while we still have them.
There are though still some LE idiots who would try to bull@!$%# you or me into thinking we do not have those rights. Likely they have watched too many TV shows where the LE thug bullies the citizen into some confession or solves the case by being a 'roid ridden bully and solves the crime in thirty minutes.
Don't drink and drive and you won't have to be concerned unless hit by a drunk driver............then everything changes when you're the victim.
Does that come with a free rectal exam?
Some countries have a zero tolerance to DUI for BAC above 0.00%-0.02% with jail time for a first offense and the US has one of the more liberal stances on drunk driving. I don't know what the big fuss over a little blood is all about given that I use to think at the end of the day I hadn't worked hard enough unless I'd shed a vial of blood on my shirt or pants. Having said that though I do agree that it takes little to no imagination to view fluids being drawn from a person could be a violation to the fourth amendment. The fourth amendment is quite nearly nothing more than a long sentences but implies a great many things. Some amendments meanings can be changed merely by adjusting the punctuation which causes some hesitation in myself to cling to it as some do as an infallible doctrine to which life should never stray. The bill of rights was written with the concerns of the period in mind. The third amendment is quite possibly as antiquated as a law in my state that says it is illegal in some areas to worry squirrels.
This in and of itself is not a big deal in my opinion and seeks to enforce a relatively sound policy against drunk driving but the danger that this has the possibility to set precedent in the wrong direction with creative lawyering is quite hard to ignore.