The U.S. Supreme Court heard oral arguments Wednesday in a case testing whether the police must get a warrant before ordering blood to be drawn from an unwilling drunken-driving suspect.
The court has long held that, except in emergency situations, warrants are required when government officials order bodily intrusions like a blood draw. But in Wednesday’s case, the state of Missouri and the Obama administration contended that warrants should not be required before administering blood tests to suspected drunken drivers.
Tyler McNeely was stopped at 2 a.m. for driving 11 miles over the speed limit. He failed four field sobriety tests and refused to take a breathalyzer test or a blood test. At that point, Missouri highway patrolman Mark Winder took him to a nearby hospital, and without getting a warrant, ordered hospital technicians to draw blood from the handcuffed suspect.
The Missouri Supreme Court unanimously threw out the blood test, noting that even patrolman Winder conceded he previously had no difficulty obtaining warrants like this, and that here, there were no circumstances that would have prevented the officer from getting one quickly.
The state of Missouri appealed to the U.S. Supreme Court, asking the justices to create a new exception to the warrant requirement — a per se rule declaring that no warrant is required for a blood draw in drunken-driving cases because alcohol dissipates in the blood over time, meaning that the evidence is disappearing by the moment.
Inside the courtroom, the justices gave both sides a hard time, but seemed, if anything, more skeptical of the prosecution’s demand for eliminating the warrant requirement altogether.
Justices Ruth Bader Ginsburg and Sonia Sotomayor both noted that Winder, the patrolman, testified he had never previously encountered difficulty getting a warrant.
Prosecutor John Koester said that the warrant would have caused a delay of 90 minutes to two hours, and every minute lost was a minute in which the alcohol was dissipating in the blood.
Sotomayor, however, said that a ruling in Missouri’s favor would mean that the court would be telling the states: “Use the most intrusive way you can prove your case.”
Justice Antonin Scalia was equally dismissive: “Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved in his arm?”
Prosecutor Koester replied that it would be difficult to forcibly administer breathalyzer tests because it’s like forcing someone to blow up a balloon: “You can put a balloon in front of somebody’s mouth, but you can’t make him blow it up.”
Justice Anthony Kennedy, noting that 25 states have passed laws prohibiting warrantless blood draws, asked whether the conviction rate is lower in those states. Koester admitted that studies indicate the warrant requirement has no bearing on conviction rates.
A Matter Of Timing
Justice Stephen Breyer expressed skepticism as to why it would take a long time to get a warrant, since the officer can call up a magistrate and simply state the facts, which should only take a few minutes.
Chief Justice John Roberts interjected: “In some cases, I suppose, the judges actually want to read the affidavit and give it some thought.”
Representing the federal government, Assistant Solicitor General Nicole Saharsky told the justices that warrants should not be required because “every minute counts” when dealing with blood alcohol levels.
To that, Scalia replied, “But … once we say that you don’t need a warrant … the game’s up.”
As an alternative to the government’s approach, Ginsburg suggested that since some jurisdictions have systems producing warrants in a half-hour, why not initiate the process while on the way to the hospital, and when a half hour is up, the officer can proceed with a blood draw. That way, at least there has been an effort to get a warrant.
Kennedy followed up, suggesting a time window of 45 minutes. But Saharsky contended that the court does not ordinarily look at the time factor.
Kennedy strongly disagreed, saying that if it takes too long to get a warrant, that fact can be the kind of exigent circumstance justifying a warrantless blood draw.
Scalia similarly wondered why the police can’t apply for a warrant, then tell the suspect he can either take the breathalyzer test or have a needle stuck in his arm for a blood draw.
Lawyer Saharsky contended that suspects’ repeated refusals may simply be an effort to delay the process to allow blood alcohol levels to go down.
“Or maybe they’re drunk,” opined Justice Elena Kagan, puckishly. On a more serious note, she observed that if the whole idea is to get evidence as quickly as possible, why wouldn’t the police not only forgo a warrant, but do the blood draw themselves, at roadside?
If a person does take the breathalyzer test, she continued, is there ever any reason for a warrantless blood test?
“Yes,” replied Saharsky, because it’s a little better test.
After Saharsky sat down, the ACLU’s Steven Shapiro was next up, arguing in favor of a warrant requirement.
Almost immediately, though, Scalia asked whether the warrant question amounts to “a lot of sound and fury signifying nothing?” What advantage would the suspect really get, he asked, other than possibly delaying the test? “Are any of these warrants ever turned down?”
Shapiro conceded that they rarely, if ever, are. But, he added, the court’s “entire Fourth Amendment jurisprudence” is based on having a neutral magistrate review the evidence “before the state does something as intrusive as putting a needle in somebody’s arm.”
Justice Samuel Alito followed up: What if the state has a form that just requires the policeman to check boxes? What kind of protection does that offer?
Shapiro noted that Missouri has standard forms for a warrant. But what that shows, he said, is that “the process of obtaining a warrant is not very elaborate” and can be quickly complied with.
Expressing further skepticism, Alito asked about rural jurisdictions, where it may be difficult to rouse a magistrate late at night. “You would say that is too bad … the whole country has to operate like New York City.”
Breyer agreed that “it’s pretty tough” to say that every state has to have the best system available.
Shapiro replied that 25 states already have a warrant requirement, and that the standard for when exigent circumstances may permit forgoing a warrant should depend on the individual circumstances. In some places, he observed, police can apply for a warrant electronically from their cars.
Roberts said: “You’re in an odd position…your argument is these warrants are just as easy as pie” to obtain. But that would seem to diminish the protection of the Fourth Amendment.
Shapiro acknowledged that evidence in drunken-driving cases is “relatively routinized” and “standardized,” but even if it only involves checking boxes, he contended, there is “value” in making sure the police have checked the right boxes before forcing suspects to have a needle stuck in their arm.
Perhaps the most uncomfortable moment for Shapiro came when Roberts asked whether police should also get a warrant for a breathalyzer test — something no state does.
“I think you probably do” need a warrant, Shapiro replied, though a breathalyzer test is certainly “less intrusive.”
Scalia, raising an eyebrow, said: “I don’t know why you want to bite off more than you can chew. … What is reasonable for sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon.”