JEFFREY BROWN: Can a police officer force a drunk driving suspect to take a blood alcohol test without a warrant? That was the question before the Supreme Court today in a case involving Fourth Amendment rights.
Marcia Coyle, as always, of The National Law Journal was in the courtroom and she joins us now.
Welcome back, Marcia.
MARCIA COYLE, The National Law Journal: Thanks, Jeff.
JEFFREY BROWN: All right, start, as always, with the facts of this case.
MARCIA COYLE: OK.
A Missouri state police officer stopped Tyler McNeely on the highway because he was speeding. The officer discerned that he might be under the influence of alcohol because he had bloodshot eyes, slurred speech, and the odor of alcohol on his breath.
JEFFREY BROWN: All clues, right?
MARCIA COYLE: All clues, right. McNeely failed several field sobriety tests. He refused to take a breath test. The officer put him in the car, arrested him, was going to take him to jail, but then decided to take him to a hospital for a blood alcohol test, which Mr. McNeely also refused to give consent to.
Mr. McNeely, of course, he had been arrested and charged. He moved in court to suppress the evidence of the blood alcohol test, which showed that his alcohol level was way above the legal limit.
JEFFREY BROWN: All right, so the legal issue is whether the warrantless blood test violates the Fourth Amendment right.
MARCIA COYLE: Exactly.
JEFFREY BROWN: And that is the unreasonable search.
MARCIA COYLE: Exactly. Warrantless searches are considered unreasonable, unless they fall within an exception to the warrant requirement.
And that’s what the state of Missouri was arguing today. The state of Missouri lost its case in the Missouri Supreme Court.
So they’re appealing. And they were urging the court to adopt a categorical per se rule that police officers do not need warrants to do blood alcohol tests.
And Missouri argued that it was constitutional because it fell within the exception to the warrant requirement that the court has called exigent circumstances.
JEFFREY BROWN: And that’s because?
MARCIA COYLE: Those circumstances exist when, for example, the time it would take a get a warrant would endanger someone’s life, or, as Missouri argued here, there’s the risk of destruction of evidence.
The Missouri attorney said, with every minute, alcohol dissipates in the blood, so there’s not only a risk that evidence will be destroyed, but a certainty that any delay will destroy the evidence.
JEFFREY BROWN: And the argument on the other side is or was today?
MARCIA COYLE: Right.
Steven Shapiro of the ACLU represented Mr. McNeely, and he said the warrant requirement should not be dispensed with, unless there were specific facts in a case that showed that it was unreasonable to require the warrant.
And he looked to a 1966 Supreme Court decision in which the court OKed a warrantless blood alcohol test, because, in that case, there were specific facts. The officer was at the scene of the accident.
The suspect who was suspected of drunken driving had to go to the hospital. It took a while until the officer could get to him, and it would have taken too much more time to get a warrant.
JEFFREY BROWN: All right, so how did the justices take this all in? What kind of questions, what kind of concerns did they show?
MARCIA COYLE: It was pretty clear that the justices look at a blood draw as a much more intrusive search than, say, a breath test.
For example, Chief Justice Roberts said that it presents this image of someone at a hospital under restraint and the state coming at him with a needle.
JEFFREY BROWN: Because it involves the needle and the intrusion in that sense.
MARCIA COYLE: Absolutely. Absolutely.
And even Justice Sotomayor pointed out that it’s more intrusive than a breath test. So the questions for Missouri’s lawyer who was arguing for this rule really focused on, how impractical is it to get a warrant here? And Missouri’s lawyer said the trouble is not getting a warrant. The police can get the warrant.
The trouble is the time it takes. In this case in particular, he said, it would have taken 90 minutes to two hours. And he was backed by the Obama administration, whose lawyers said every minute counts and the alcohol number counts as well.
JEFFREY BROWN: So were there justices who were skeptical of that argument then?
MARCIA COYLE: Oh, yes, absolutely.
In fact, Justice Breyer pointed out that in many jurisdictions today, police can get a warrant over the telephone.
But Mr. Shapiro, when his time was up to defend the warrant in these situations, Justice Alito, for example, did point out that rural jurisdictions don’t often have a neutral magistrate or a district attorney on duty 24 hours a day, seven days a week in order to look at the warrant request.
And he asked, well, should all of the country operate the way New York City does?
And Mr. Shapiro said, well, no, but, in the absence of any evidence that warrant — getting a warrant is cumbersome and time-consuming or that having the warrant requirement — or not having the warrant requirement affects the conviction rate, you shouldn’t dispense with the warrant requirement.
JEFFREY BROWN: So, does a case like this fit into ideological sides that you can, you know, compare to other cases, or is this somehow different when you get into a Fourth Amendment search?
MARCIA COYLE: Sometimes, the Fourth Amendment does show an ideological divide on the court, but in this argument in particular, I didn’t see that.
I thought, across the board, the court was leery of dispensing with the warrant requirement, and they were looking for, perhaps, some kind of a compromise here, saying that the police, at least, have to try to get the warrant.
And if they don’t get the warrant, then maybe the courts in general should look at the totality of circumstances, and perhaps not getting the warrant was reasonable and justified.
JEFFREY BROWN: And this is one that state courts have split on, I gather, right?
MARCIA COYLE: They have.
JEFFREY BROWN: They have been like three and three or something.
MARCIA COYLE: They have split, and they have split over how to apply that 1966 Supreme Court decision. Some limit it, read it narrowly, to requiring specific facts to justify no warrant. Others look at it as saying no warrant is required.
I should point out that Missouri is supported in this case by 32 states, the District of Columbia and Guam, as well as, not surprisingly, Mothers Against Drunk Driving.
JEFFREY BROWN: All right, Marcia Coyle of “The National Law Journal,” as always, thank you.
MARCIA COYLE: My pleasure, Jeff.