Supreme Court Rules Against Warrantless DUI Blood Tests

In divided ruling handed down today, the U.S. Supreme Court held that Missouri police violated the 4th Amendment by obtaining a warrantless and nonconsensual blood sample from a man suspected of drunk driving. At issue in Missouri v. McNeely was the question of whether or not the rapid diminishment of alcohol in a suspect’s bloodstream should entitle the police to enjoy a blanket emergency exception to the 4th Amendment when it comes to seeking blood tests in drunk-driving cases. Writing for a majority that also included Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan, Justice Sonia Sotomayor held that the actions of the Missouri police violated the Constitution and, more significantly, rejected the government’s sweeping argument in favor of a blanket 4th Amendment exception.

While “in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence,” Sotomayor wrote, “it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

In addition to Sotomayor’s majority opinion, Chief Justice John Roberts filed an opinion concurring in part and dissenting in part, which was joined by Justices Stephen Breyer and Samuel Alito, and Justice Clarence Thomas filed a lone dissent.

Click below to watch me and Nick Gillespie discuss this case and several other notable cases from the current Supreme Court term.

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  • John||

    I will say again, Sotomayor has turned out to be a much better justice than I thought she would be. I still don't like her. But she does do the right things once in a while.

  • Tman||

    And once again Thomas baffles me with his lockstep support of police over reach.

    I want to love the guy for the majority of his decisions, but for every Raich opinion he adds one like Redding that just makes me sick.

  • John||

    I really think that is the product of his childhood. He was literally the only black kid in an all white school in Georgia. I think he always felt so powerless against the mob that he grew to feel a great need for law and order. And that is what makes him such a bad judge on those issues.

  • Tman||

    You're probably right but it's just so inconsistent with his defense of liberty in the other cases. I just don't understand how he squares that circle internally. It seems like such a giant contradiction.

    This doesn't make him any more or less confusing than the rest of the great robed lawyers though. They are all lessons in contradictions and illogical justifications.

  • John||

    Even though he is wrong, I do think Thomas is honestly trying to do the right thing, as opposed to Roberts and Keagan who are just playing to the crowd and going with the political winds.

  • Tman||

    That I agree with. My mom is a raging feminist liberal attorney (now retired) who used to despise Thomas with a passion. I made her watch this lecture and although she still disagrees with him she gained a ton of respect for his methods after watching this.

    http://www.law.harvard.edu/new.....d-law.html

    You can't deny how amazing his own personal story is.

  • sloopyinca||

    Yeah, his personal story is amazing, but it's irrelevant to whether or not he is a good justice. And I'm starting to doubt his ability to properly weigh law and order with liberty. He's become a functionary of the police state and those are the issues that lead us all to being in gilded cages.

    I'm just glad that there were five people on the court that still give a fuck about personal liberty up to the time a warrant is produced.

  • ||

    I don't know. Thomas's dissent is pretty straightforward. The majority's "case-by-case" ruling leaves us nowhere. Thomas at least had the guts to draw a bright line.

    I think what's really a worthwhile question to ask is...under what circumstances would a warrant for a blood draw NOT be granted. If it's de facto 100% then the exigent argument is pretty solid.

  • John||

    MP,

    I can imagine a lot of circumstances where the warrant wouldn't be granted, namely when the cop doesn't actually have probable cause to believe the person is drunk. Beyond that, even if probable cause is present every single time, that doesn't in itself create the exigent circumstances.

  • Rights-Minimalist Autocrat||

    I can imagine a lot of circumstances where the warrant wouldn't be granted, namely when the cop doesn't actually have probable cause to believe the person is drunk.

    Yeah, but isn't the cop just going to say, "He was weaving in and out of his lane, his speech is slurred, and he smells of alcohol." Is the judge going to come to the location to confirm it?

    I'm not being a smartass; I actually don't know how this would work in real life. But it seems to me that a warrant would basically become a rubber stamp.

  • John||

    The warrant is no more a rubber stamp than any other warrant. It is not totally clear how this will work in practice. The state was saying "hey, in reality anyone who is drunk and driving is absorbing evidence of a crime so therefore we by definition have exigent circumstances in every case". And the Court said no. It is still a case by case decision.

    So what does that mean? Well it could mean that the state just trains their cops to write the magic words in a memo and declare every case they come upon exigent in which case this ruling will have little practical effect. Or it could mean that courts will require police to do their jobs and actually go and get a warrant in some cases.

  • ||

    John, It's pretty clear how it works in practice. I've written at least a dozen warrants for blood draws. It's not rocket science.

    The reason why the exigency argument doesn't fly, is because modern technology (fax machines, phone, email) means that we can get warrants quickly.

    Iow, modern technology means that criminal suspects have greater protection. 50 yrs ago, when this technology wasn't available, the exigency argument would have been solid

  • dinkster||

    Any one who is actually drunk isn't going to be sober by the time the warrant is issued. Trying to catch people right at 0.08 is a poor way to stop reckless driving.

  • ||

    I don't think it means anything at all. When I did Mohave County DUI's, all the pigs had this boilerplate form that had a bunch of check off boxes (i.e. watery eyes, slurred speech). The officer would call the judge who had overnight warrant duty, read off the warrant application and, bad-da-bing, a warrant. The form was indeed kept and disclosed to opposing counsel.

  • West Texas||

    I'm not being a smartass; I actually don't know how this would work in real life. But it seems to me that a warrant would basically become a rubber stamp.

    That's exactly what it has become. And it's a goddam travesty.

  • ||

    Beyond that, even if probable cause is present every single time, that doesn't in itself create the exigent circumstances

    Correct. But Thomas is only arguing that physiology dictates exigency. Unless one could argue that a blood draw is not a warrantable act, I think Thomas has a fair point.

  • John||

    I think he makes a fair point in that in every case evidence is in fact being destroyed by delaying. But the majority makes a fair point in that if you make that rule you at least partially abandon the practice of considering exigency on a case by case basis.

  • ||

    But the majority makes a fair point in that if you make that rule you at least partially abandon the practice of considering exigency on a case by case basis.

    I'd have to really sit down and read/think through the majority ruling, but I have a hard time seeing the case where physiological exigency is trumped by something else. It all comes down to how much weight one gives to the "minute by minute" physiological basis.

  • Libertymike||

    Where do you find exigency in the 4th amendment?

    That the evidence may be lost is just so much statist claptrap. So what if it is lost. This is a free society.

  • ||

    Constitutional law is an exercise in exception management and line drawing. If you want to hold an absolutist line, then we probably don't have much to debate about.

  • ||

    "Where do you find exigency in the 4th amendment"

    Where do you find that warrants are REQUIRED in all cases in the 4th. Hint: you don't. It says you need PC for a warrant. It does NOT say you need a warrant for all searches.

    What the 4th does say is that all searches and seizures must be REASONABLE. That is pretty subjective and interpretable a # of ways.

    Modern technology is offering increased protections. Before fax machines, email, etc. it WOULD be a valid argument (Exigency) on emergency blood draws w/o a warrant, because it would take too long to drive to the judge's house to get it signed etc.

    Now, thanks to modern technology, we can fax/email the warrant (as I have done many many times) and get it back quickly.

  • Zeb||

    It really disturbs me that a blood draw is a warrantable act. But I guess that's the way it is. Seems to me you should have to be convicted of something at least before anyone can force-ably stick you with needles. How is it not OK to force someone to reveal the contents of their mind, but OK to force them to reveal the contents of their body? I'm talking reality here, not constitutionality.

  • Tman||

    That's the thing though sloop, he's terrible in most LEO cases but a staunch defender of the individual vs the state in almost every other case.

    I can't really say on the whole that he's worse than the others.

  • Libertymike||

    Your last sentence is essentially my thoughts on Thomas.

    However, do not overlook that he did not rely upon first principles in fashioning his opinion. To the extent that you cite judicial exposition of the exigent circumstances doctrine, you have repudiated first principles.

  • Lord Humungus||

    Warrantless? No way!

    Forced to buy insurance? Okay!

  • sloopyinca||

    Now if they'd just just rule that a man can "abort" his parental responsibilities under the equal protection clause...

  • Virginian||

    The shrieking from the white knights and the feminists would be epic.

  • gaijin||

    from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici.

    ok, so what about where the cops that get a judge to issue a blanket warrant for their road side blood draws (named in an Illinois jurisdiction "No refusal weekend')...does this mean they have to get a case by case warrant with an individual's name on it or does this just mean the cops in Missouri have to pretend to adhere to the 4th?

  • John||

    That means those things are now illegal. Sotomayor is saying you can't just say no refusal.

  • Zeb||

    Here's a question. How is compelling someone to provide a blood sample (or do a breathalyser) not a violation of the 5th amendment right against self incrimination?

  • John||

    Providing blood is considered a search not a statement. The 5th Amendment covers statements.

  • Zeb||

    Hmm. Yeah, I guess the text supports that. It just seems wrong that you can't be compelled to speak, but you can be compelled to give up your bodily integrity. The latter seems like a much worse violation of rights than the former.

  • Chris Mallory||

    So torture to collect "evidence" is ok, but torture to force a statement isn't. Gotcha.

  • ||

    Blood is evidence. It's not a direct admission. It's like saying that if I find a note on you that says "I DID IT!" after a legal search, that it's not admissible.

  • ||

    Yes, it is not TESTIMONIAL evidence. The current interpretation of the 5th is such that it is viewed as referring to testimonial not physical evidence.

    The state cannot make you testify against yourself. The state can compel fingerprints, DNA, blood samples, handwriting exemplars, etc.

  • some guy||

    If we had really good brain scan tech that could read your thoughts, would using that be a search or an interrogation?

  • SugarFree||

    If the 4th wasn't such a limp-rag at this point, the burden to get a warrant would be such that this issue would be moot. And the Breathlyzer dodge that is used in most states is that it is an automatic suspension to refuse one. \

    You're not giving up your rights, Zeb, you're just being punished if you exercise them.

  • Zeb||

    I suppose the ease of getting a warrant is more the problem here. Tough it really irks me that they can get a warrant to forcefully insert something into your body under any circumstances. "Sorry, sir, you are going to have to let me fuck you in the ass, I have a warrant".

  • ||

    An automatic suspension is not penal jeopardy, so there's no dodge. There is no RIGHT to drive. If one chooses to do so, one has to follow certain rules, and those include if arrested for DUI take a breathalyzer, or get a suspension. Note we are talking direct, not testimonial evidence, which is relevant as far as the current interpretation of the 5th is concerned

  • Zeb||

    I get that that is how it is under current precedent, but I still say that's totally fucked. They can compel you to give up parts of your body, but not to speak. How is that not totally fucked up? If anything, your bodily integrity should be more thoroughly protected than your right not to speak (though both should be fully protected).

  • Skyhawk||

    "There is no RIGHT to drive'

    Yeah, The US Supreme Court and the Supreme Courts of virtually every state disagree with you.

    Scary that you have been given authority by the state to enforce laws when you don't understand basic concepts of law.

  • dinkster||

    Driving is just a necessity to make a living wage. Why do you hate poor people?

  • ||

    It's a good decision. Fwiw, I've written warrants for blood draws on DUI cases. It doesn't take that long. I can write it, fax it or email it to the judge and have the signed warrant within an hour. At the rate alcohol is metabolized, that is a decent timeframe to work with.

    Modern technology is nice that way.

  • Westmiller||

    Totally beside the point: the reason T-Shirt manikin in the background is extremely distracting. A static logo banner is fine, but not a "second body" in the shot.

  • ||

    "Yeah, but isn't the cop just going to say, "He was weaving in and out of his lane, his speech is slurred, and he smells of alcohol." Is the judge going to come to the location to confirm it?

    I'm not being a smartass; I actually don't know how this would work in real life. But it seems to me that a warrant would basically become a rubber stamp."

    The blood draw results is foolproof evidence of whether the person was DUI or not. What incentive is there for a cop to lie on the affidavit? If the person is NOT DUI, the blood draw will show that. I've NEVER had a blood draw result in a level that was below the prima facie limit. DUI is the only crime I am aware of where the innocent have foolproof defense against false prosecution. Either the blood draw shows a result .08 or above, or it doesn't.

    There is no incentive to lie about driving pattern etc. because if the guy isn't DUI, it's just going to result in a low blood draw and what's the point except wasting time?

    Fwiw, in my state we have a constitution that respects privacy, unlike the federal one, so we don't have DUI roadblocks!

  • West Texas||

    Then charge him with reckless driving?

    Drunk driving laws are the DMV equivalent of hate crimes. Nothing but a sweetner to increase the punishment of an already existing crime to make prosecutors and legislators look "tough" when they ruin someone's life.

  • ||

    Rubbish. Spew this crap all you want. Thinking adults know that DUI drivers are dangerous and that's why there is such broad public support for enforcement

  • Zeb||

    How do we know how dangerous drivers with more than .08% BAC are? You only see the ones that get caught. Which I can only imagine is a tiny percentage of the people out there driving after drinking. The fact is that the vast majority of people who drink and drive never hurt anyone or even come close to it.

    I'm not totally opposed to DUI laws. Just demonstrate actual impairment or dangerous driving, not BAC.

  • ||

    I like bright lines. .08 is a bright line

    There is no RIGHT to drive with a BAC of .08

    Simply put. Don't do it.

    And we know how dangerous drivers at a .08 are ON AVERAGE based on NHTSA studies involved closed course testing. Some people may be relatively decent drivers at a .08 (chronic alcoholics). Wonderful. There is no right to drive with a .08. Period.

  • dinkster||

    0.08 is statiscally equivalent to talking on the cellphone (even hands free) or having kids yelling in the back seat. 0.08 is a national standard because the feds blackmailed the states to implement it.

  • West Texas||

    Thinking adults know that DUI drivers are dangerous and that's why there is such broad public support for enforcement

    No kidding. We should just set all of our laws by public consensus. Screw those minorities and their silly demand for inalienable rights. Everything is negotiable, goddammit.

  • Zeb||

    There is no incentive to lie

    Unless you just want to be cruel and torture the person by sticking him with needles.
    I'm not saying that this is common, but even you have to admit that there are some cops out there who are sadistic assholes who get pissed when someone questions their authoritah or fails to submit.

  • Zeb||

    As I understand it, many DUI laws allow prosecutions even if BAC is under the limit. So there is no foolproof defense.

  • Brett L||

    This is true. You can get a DUI conviction in FL with a measured BAC of 0.00. The 0.08 is just a guaranteed conviction if the evidence holds up.

  • West Texas||

    This case is a fucking yawner. Of course they can't do it without a "warrant".

    The real travesty is the rubber stamp "warrants" that are already so common these days and that practice hasn't gotten a sniff in the legal world.

    Violating someone's body on nothing more than the word of a cop in pursuit of a victimless crime is bullshit. Fuck the tendentious difference between "statements" and "searches." My body is my body and it shouldn't be violated without my consent.

    Actually fuck all "drunk driving" laws. That's nothing but thoughtcrime, too.

  • ||

    lol. DUI as a "victimless" crime. Every DUI thread this idiocy rears its ugly head

  • Zeb||

    Who's the victim if I drink 5 beers and then get in my car and drive up and down my driveway? That's DUI.

  • ||

    IT'S DUI in some states. In some states, DUI doesn't apply on private property.

    DUI is not a victimless crime. In many cases of DUI nobody is hurt. Similarly, you could fire a gun into a crowd and in many cases nobody would get hurt. That doesn't make firing a gun into a crowd a victimless crime

  • Zeb||

    No, but there are loads of other things you can do while driving which make you at least as likely to crash as having .08 BAC. Why isn't having kids in the car or driving while tired or texting while driving treated as seriously as DUI? I'd be surprised if any of those things were any less likely to cause you to drive dangerously than a .08 BAC.

  • Brett L||

    A recent study said something like 70% of all auto accidents are the result of just plain not paying attention. You can't fix stupid.

  • Zeb||

    And it seems very unlikely that firing a gun into a crowd would fail to injure someone. DUI is quite the opposite. Unless something very unexpected happens, you are almost certain not to hurt someone if you drive home with a good buzz on. Not a good analogy.

  • West Texas||

    No, the crime is "reckless discharge of a firearm."

    You know, like, "reckless driving."

  • dinkster||

    Pwnt

  • Stormy Dragon||

    Did this case address "implied consent" states? In Pennsylvania, the law says that by driving a vehicle, you're giving consent to BAC testing upon demand.

  • ||

    Yes. But the penalty for refusal is administrative, not criminal.

    Every state I'm aware of is implied consent. There may be some that aren't, but I'm not aware of them

  • Zeb||

    Why is there implied consent for DUI stuff but not for, say, searches of the vehicle?

  • ||

    because implied consent relates to HOW you OPERATE the motor vehicle - you know stuff that is addressed by a motor vehicle license to drive.

  • robc||

    In some ways, Thomas's dissent argues for states to adopt Scalia's "new professionalism". If Missouri doesnt do phone warrants, then now they better if they want the evidence before it is destroyed.

  • Brett L||

    I guess I'm still confused as to why it is anyone's business whether "evidence" is being metabolized. (Assuming the affirmative case.) So. Fucking. What? If I'm running my shredder does that give the cops the right to search my house without a warrant?

  • West Texas||

    Because a prosecutor can get bonus points. That's the only reason.

  • West Texas||

    Because a prosecutor can get bonus points. That's the only reason.

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