The US Supreme Court has granted cert on a case styled Missouri v. McNeely to determine "Whether a law enforcement officer may obtain a nonconsensual and
warrantless blood sample from a drunk driver under the exigent
circumstances exception to the Fourth Amendment warrant requirement
based upon the natural dissipation of alcohol in the bloodstream."
The petition (pdf) to the court asserted that, "It is objectively reasonable for a law enforcement officer to obtain a warrantless blood test from a drunk driver because of the imminent destruction of evidence." But the "imminent destruction of evidence" in this instance is not somebody flushing drugs down a toilet or shredding critical files, but merely the fact that "alcohol is naturally eliminated from the human body."
To me, "destruction" of evidence implies an alleged offender actively doing something to impede investigators, but if the court overturns the Missouri Supreme Court's decision, "destruction" of evidence could mean, simply, doing nothing except refusing permission for an invasive search.
My own sense is that, given the Supreme Court's systematic gutting of the Fourth Amendment in recent decades, SCOTUS will probably say warrantless blood draws are constitutional. But it's disquieting to think that simply refusing permission to search would be deemed an "exigent circumstance" that allows police to search anyway. Something's not quite right about that circular construction.
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I don't think the court will go that far. Many states, including Texas, have already become very accustomed to the practice of obtaining a search warrant from a judge authorizing a blood draw in DWI investigations. Given the somewhat intrusive nature of sticking a needle into someone, I don't know that a warrant is an unreasonable requirement.
The broader, and more important question, is why the legislature doesn't just criminalize the failure to provide a voluntary breath specimen in cases where alcohol use is suspected. It seems to me that if the failure to blow was given the same penal consequences of a DWI, we could just do away with all of the silliness and expense of preparing search warrant applications, hauling suspects to a hospital emergency room and burdening our already overextended crime labs with the trouble of testing DWI blood samples. Plus it would give suspects some extra incentive to give a breath specimen which could actually clear those suspects who come back below .08. Fewer cases=less burden on the courts and expense. Just my opinion.
10:04, it seems dicey to imagine that the state can criminalize a person's failure to consent to a warrantless search, or coerce their consent by threatening criminal charges. I haven't looked at the case law, but I imagine that's why right now there are only administrative penalties for refusing to blow instead of criminal ones.
Anon10:04. The police are not dropping everything and saying ok you can go home when your breath test comes back under .08. You are still facing charges and a DA that will likely drag the case out for a year before dismissing on the day of trial.
well i know the us supreme court has ruled at least once that refusing a search is NOT reasonable grounds for a search.
Not sure how that would work in this case.
But i do know a state can make agrreing to whatever sobriety test required by law a requirment for getting your liscense. Florida has had that requirement since at least the 1970's
refuse and you can kiss your drivers lic good by for at least a year and it's AUTOMATIC. No hearring no nothing. it's just GONE!
@ 10:04 - I'm sure it's disputed, but I've heard the intoxilyzers have a 25% error rate. There have also been issues with them being properly calibrated, maintained, etc. So, do we really want to impose the same consequences as DWI on someone who refuses to consent to, what may be, a highly inaccurate test? Or, is this another case where we are willing to sacrifice potentially innocent people to the criminal justice system to save a few dollars and make it more convenient for law enforcement and prosecutors? If we are going to deprive someone of their life, liberty, and property, should we really be bellyaching about the expense or trouble? If it was your life, liberty, and property at stake, wouldn't you insist on the more reliable test? Unfortunately, we have gotten to the point where many in the criminal justice system no longer value these things but believe that things should be whatever is easiest, cheapest, and most convenient for those who run the system. And, if mistakes are made and innocent people pay the price, as long as it isn't me, who cares?
A decision by the court permitting warrantless blood draws could have an impact far beyond DUI cases. I'm not certain if any of the briefs/amicus before the supreme court address it, but if warrantless blood draws are permitted in the DUI context, then why not in others? Specifically, anything hinting of a drug charge. The state will argue that use of drugs is relevant evidence of possession of drugs (or paraphernalia) and that therefore they must do a warrantless draw to "preserve the evidence." To go further, the state can then argue that any person whose crime appears related to mental health must be drug tested --- because if they have drugs in the bloodstream the state can use it as evidence against an insanity defense, etc. This is one big barn door that could swing open.
In addition, this will be a way for the police to try and salvage "0.0" breath tests. Even if you have no alcohol in your blood, the presence of *any* drug in your system (legal, proscribed, OTC, etc.) will give the DA an excuse to continue the case. Currently this usually happens when the police (without mirandizing the person) ask "Have you taken any drugs or medications today?" But now if you refuse to answer (which is your right-and is the smart thing to do) the state will use a positive blood test as "consciousness of guilt" evidence.
"The broader, and more important question, is why the legislature doesn't just criminalize the failure to provide a voluntary breath specimen in cases where alcohol use is suspected."
Because such a law would almost certainly be found unconstitutional. After all, if the government can throw you in prison for refusing a search, then your right to say "no" is rather meaningless. Why not just do the same thing with home searches? If you refuse to let a cop enter without a warrant he can arrest you for refusing a search (and probably will then search your house anyway).
The courts have already bent over backwards rationalizing current practices regarding breath tests, the question now is whether they'll actually get the backs of their feet to touch their foreheads.
In Florida, refusing to provide a breath sample, if you've refused to provide a breath sample previously, is a 1st degree misdemeanor.
To prove the crime of Refusal to Submit to Testing, the State must prove the following six elements beyond a reasonable doubt:
Give 1a and/or 1b as applicable.
1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while
a. under the influence of [an alcoholic beverage][(a chemical substance listed in 877.111 Fla. Stat.)][(a controlled substance listed in Chapter 893)] to the extent (Defendant's) normal faculties were impaired.
b. [his] [her] [breath] [blood] alcohol level was .08 or higher.
Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant appeared for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test was impractical or impossible.
2. a. The law enforcement officer arrested (defendant) for Driving
under the Influence.
b. The law enforcement officer requested a blood test.
3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her][breath] [blood] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.
4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [blood] [urine], if [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].
5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath][blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer].
6. (Defendant's) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].
Inference.
You are permitted to conclude that (defendant's) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his][her][[breath][blood][urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension.
Definitions.
“Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.
“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer's knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed.
Give if applicable.
“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.
Marti, do I understand you correctly that in FL it's only a crime "if you've refused to provide a breath sample previously"?
Does that mean at previous DWI stops? In other words, the first one's a freebie (as far as criminal charges)? So basically you give up your right to refuse a warrantless search if you've exercised it before? That seems squirrelly to me, too, but it certainly limits it to a much smaller pool of potential defendants than 10:04 was suggesting.
Warrantless blood tests are definitely a violation of the 4th and 5th Amendments. I would even argue that a warrant-based blood test should be unconstitutional as well because the practice is an invasion of an individual's right to privacy. The whole concept of Privacy that Justice William O.Douglas maintained was an unenumerated right protected by the 9th Amendment in Griswold V. Connecticut(1965)is quickly disappearing. Even Roe v. Wade is built on the same concept of privacy. In Rochin v. California (1952)the Supreme Court ruled that the police could not forcibly used a stomach pump to extract pills that a suspect had swallowed. Instead of relying on the 4th and 5th Amendments to prevent the introduction of evidence obtained in this invasive manner, the Court relied upon the Due Process clause of the 14th Amendment. Justice Felix Frankfurter noted:
A state cannot offend "those canons of decency and fairness which express the notions of justice of English-speaking peoples." Due process of law requires the state to observe those principles that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."
The police conduct here did more than offend "private sentimentalism about combating crime too energetically." This conduct "shock[ed] the conscience," offending even those with hardened sensibilities. The treatment of Rochin was "too close to the rack and screw to permit of constitutional differentiation."
One of my fellow Constitutional Law students jokingly calling this the "puking point of the law"
Nowadays, the courts today who supervise the actions of the police are not easily shocked when they allow the police to abuse suspects or use techniques to extract evidence that obliterate any concept of Privacy and transgress the boundary that defines a suspect's personhood.
<“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.>
Does this mean that a passenger or someone that just went into their car to "sleep it off" could face a DUI or refusal charge?
It's not always so simple as the passage of time always resulting in the elimination of enough alcohol to cause one to no longer be above the presumptive limit by the time the draw is taken due to having yo get a warrant. If the defense puts on the right evidence I think this case is very likely to go against the cops. There is always a time frame during which the subject has alcohol in his stomach that has not entered the blood and it's actually possible for some time to pass and the subject to actually get a higher BAC. To me the question should be, "why permit blood draws even with a warrant."
I think some of you are confusing some issues. First of all, a breath test is not a Fourth Amendment search, with or without a warrant. A blood test, of course, is a search -- which is why cops have to get a warrant for it.
A breath test is closer to giving up fingerprints. Think about it. If you had a constitutional right to refuse a breath test, they wouldn't be able to use the fact of the refusal as evidence of your guilt at trial. But of course, they can.
That's why the refusal to give a breath test can be criminalized in and of itself (which a few states have done -- not Texas, of course).
As far as the exigent circumstances analysis is concerned, I don't see why the fact that the suspect is refusing a breath test is relevant. It's well-settled that dissipation of evidence can create an exigent circumstance -- which is an exception to the warrant clause. Why should it matter that it was the suspect's refusal to provide a breath sample that will ultimately lead to the dissipation of evidence. The Constitution certainly doesn't care -- the dissipation, and thus the exigent circumstance, is a fact.
Finally, I'm confused about the statement "doing nothing except refusing permission for an invasive search." There's not a court in America that would call a request for a breath sample "an invasive search." You may have the right to refuse one (with consequences), and no one is going to tie you down and force you to breathe into a tube, but asking for a breath sample simply cannot be considered a Fourth Amendment event on par with a forced blood draw.
Look, I don't like the breath test regime either -- but neither do I live in a fantasy-world. Disliking something doesn't make it unconstitutional.
11:52, if "It's well-settled that dissipation of evidence can create an exigent circumstance," then what's there for SCOTUS to consider? The Missouri Supreme Court disagreed with you.
Also, please re-read the post. The line about "doing nothing except refusing permission for an invasive search" referred specifically to the blood tests under consideration by SCOTUS, so you're arguing against something I didn't say.
That said, IANAL but to me your distinction between taking my blood and taking my breath is pretty specious. On what basis do you claim one is a search and not the other? Why doesn't that fall under the right to be free from unreasonable searches of one's "person"? What's more personal than your breath?
As for fingerprints, the cops can't fingerprint everyone willy nilly, so even if that's a superior analogy to breath tests (which is disputable) it ignores that they fingerprint AFTER arrest, not everybody they decide to stop.
Seems to me you're the one living in a fantasy world: One where it's constitutional if cops want to do it and law that's not yet settled - indeed, that SCOTUS has yet to consider - is already a done deal.
I have concerns about two aspects of this post. First is the apparent failure to differentiate bewteen blood sampling and the other two methods in use.Breathing,we all do constantly so asking for a sample shoud be no problem if I decide to allow it.Urine is also the product of a function we all perform on a regular basis,again a matter that should be discretionary. When a blood test is demanded, a warrant should be required simply because it is,of the three,the most invasive and potentially problematic.By definition a blood test is surgery. The second concern surrounds exigent circunstances and an officers criteria for suspecting intoxication...but thats another post.
To Texas Red, the key part of your comment to me is "asking for a sample shoud be no problem if I decide to allow it." I agree they can ask. They can ask for a blood sample, too, and you're free to give it to them. To me the larger question is, what if I say "no"?
If the Fourth Amendment says we're to be free from unreasonable searches of our "person," by what logic does that not include our breath and urine as well as our blood?
First of all, given the fact that McNeely refused a breath test, I thought that’s what you meant when you were talking about refusing permission for an invasive search. (I may have been influenced by the comments that assume a breath test is a search). Of course, McNeely also refused permission for a blood draw, which I agree is an “invasive search.” Anyway, I apologize for the misunderstanding.
Concerning dissipation of evidence, I didn’t mean to imply anything other than what I said – that is, it is well-settled that a risk that evidence will disappear counts as an exigent circumstance. This is a general principle – and one that the Missouri Court understands. The issue, of course, is whether the risk of dissipation that arises from nothing more than the fact that the suspect has refused to give a breath test is enough to constitute an exigent circumstance. All my rambling about the relevance of the refusal, etc., was not a definitive statement of the law. It was just an argument as to why I think Missouri will ultimately win. But who knows?
Also, who said anything about demanding breath tests “willy nilly”? The implied consent statute doesn’t kick in until a suspect is arrested for a motor vehicle / alcohol offense. And no state that penalizes a person for refusing a test (either criminally or, as in Texas, administratively) would allow officers to demand breath tests “willy nilly.”
Finally, I think we have a misunderstanding about breath tests. The reason why they aren’t considered searches, I suspect, is that it is impractical (and probably unfeasible) to extract breath from an unwilling subject. Thus, when they occur, they are the product of consent – and any issue concerns whether that consent is voluntary (but I think that’s almost always a matter of state law, not the Fourth Amendment). Extraction of blood, of course, is different. One can strap a subject to a chair, stick a needle in him, and draw blood. And for that you either need a warrant or exception to the warrant requirement. So I think we can all agree that there is small “r” right to refuse a breath test – as opposed to a big-time Fourth Amendment upper-case “R” Right to refuse a breath test.
In sum, I think the McNeely case presents an interesting question. And, no, I don’t think that it’s well-settled – it is in fact the subject of conflict among various state courts.
First of all, given the fact that McNeely refused a breath test, I thought that’s what you meant when you were talking about refusing permission for an invasive search. (I may have been influenced by the comments that assume a breath test is a search). Of course, McNeely also refused permission for a blood draw, which I agree is an “invasive search.” Anyway, I apologize for the misunderstanding.
Concerning dissipation of evidence, I didn’t mean to imply anything other than what I said – that is, it is well-settled that a risk that evidence will disappear counts as an exigent circumstance. This is a general principle – and one that the Missouri Court understands. The issue, of course, is whether the risk of dissipation that arises from nothing more than the fact that the suspect has refused to give a breath test is enough to constitute an exigent circumstance. All my rambling about the relevance of the refusal, etc., was not a definitive statement of the law. It was just an argument as to why I think Missouri will ultimately win. But who knows?
Also, who said anything about demanding breath tests “willy nilly”? The implied consent statute doesn’t kick in until a suspect is arrested for a motor vehicle / alcohol offense. And no state that penalizes a person for refusing a test (either criminally or, as in Texas, administratively) would allow officers to demand breath tests “willy nilly.”
Finally, I think we have a misunderstanding about breath tests. The reason why they aren’t considered searches, I suspect, is that it is impractical (and probably unfeasible) to extract breath from an unwilling subject. Thus, when they occur, they are the product of consent – and any issue concerns whether that consent is voluntary (but I think that’s almost always a matter of state law, not the Fourth Amendment). Extraction of blood, of course, is different. One can strap a subject to a chair, stick a needle in him, and draw blood. And for that you either need a warrant or exception to the warrant requirement. So I think we can all agree that there is small “r” right to refuse a breath test – as opposed to a big-time Fourth Amendment upper-case “R” Right to refuse a breath test.
In sum, I think the McNeely case presents an interesting question. And, no, I don’t think that it’s well-settled – it is in fact the subject of conflict among various state courts.
"Warrantless blood tests are definitely a violation of the 4th and 5th Amendments." The Fourth Amendment I understand, but the Fifth? What's your authority for that statement?
I'd like to believe that the "exigent circumstance" rule is predicated on the understanding that there isn't time to petition for and obtain a warrant. Without it, we could go all reducto absurdum and say that cops can search your house under "exigent circumstance" exception because, if left undisturbed, the entire contents will eventually turn to dust. So then the question may turn to: given that cops are looking for DUI offenders in such-and-such location and such-and-such times (i.e. sobriety stops, Friday night, etc.) they should be prepared to petition for warrants at that time. Blood alcohol decay rates are reasonably well-known, so a blood test an hour after a stop is going to be projected back to the actual BAC at the time of stop with some accuracy. So I find the petitioner's claim of "exigence" specious -- lack of planning on their part does not constitute an emergency.
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