The United States Supreme Court will hear arguments this week in the case of Missouri v. McNeely and then decide whether to create another DUI exception to the US Constitution. The case will determine once and for all (maybe) whether the police have to obtain a warrant to FORCIBLY take a person’s blood out of their body for testing. Back in 1966, the Supreme Court decided a case called Schmerber v. California, in which it held that the police could take a person’s blood against his or her will when there were “exigent circumstances”, i.e., an emergency situation. In Schmerber the exigent circumstance was that the driver had been in an accident over 2 hours prior to the blood draw and the alcohol in his blood was assumed to be dissipating. There was no time to get a warrant. So the Schmerber case said in this particular situation, the police could take the blood without a warrant. Police, prosecutors and courts seized on this decision and ever since have dispensed with the requirement that the police obtain a warrant before they conduct a search of a person’s body without consent, regardless of whether there was actually an emergency situation or not.
In routine cases, where there was no accident and no significant time had passed, the police were holding people down and taking their blood, sometimes on the side of the road. McNeely got arrested for DUI and the officer forcibly had his blood drawn without a warrant even though he admitted that no serious time had passed since the arrest. The Missouri Supreme Court in McNeely said “enough is enough” and threw out the warrantless forcible blood draw of McNeely.
Back in 1966, when Schmerber was decided, the police did not have access to much technology. There were no cell phones, no computers, no internet, etc. The radios weren’t even that great. To obtain a warrant, the police had to secure the accused person, go type up a warrant on a TYPEWRITER, locate a judge in the middle of the night and wake him up, get the warrant signed and then get back to the accused person, get them to a hospital and have the blood drawn. This was a very time-consuming process. It could take hours.
It is not 1966 any more. The police have cell phones on them and can make calls, including to judges regarding warrants. In Lawrence, Kansas DUI cases, the police routinely obtain search warrants for the blood of people who have not consented to a breath test. They simply fill out a pre-typed warrant form, email it to a judge who receives it via ipad and electronically signs the warrant and emails it back. All of this takes about 15 minutes and occurs while the officer is driving the accused person to the hospital. Kansas DUI Breath tests require a 20 minute observation period themselves! So, this process to obtain a warrant that Lawrence DUI officers use doesn’t take much more time than conducting a breath test with a willing participant. There is no reason not to get a warrant and no “exigent circumstance” anymore that justifies the failure to follow the Constitution.
The Warrant Requirement of our US Constitution is one of the most fundamental rights that we Americans enjoy. It was placed there by our forefathers because the government in England had a history of breaking into people’s homes and searching them without any good reason to believe that the person had done anything wrong and without any oversight over law enforcement. The warrant requirement exists to ensure that a neutral detached judge has reviewed the information that the police have about a person before they are authorized to search them or invade their body. It is kind of a no-brainer. A New York Times op-ed just came out in support of the requirement of a warrant before DUI blood searches. Maybe people are tired of seeing the basic tenets of our democracy being sacrified on the altar of DUI. Of course, the Supreme Court has a history of ignoring the Constitution when it comes to DUI cases so we may see the Warrant Requirement take another sad hit in this case. I contributed the Kansas DUI blood test information and the Lawrence and Douglas County DUI search warrants forms to one of the lawyers taking this case to the Supreme Court so I have my fingers crossed.