Want Blood? Get warrant

The St. Louis Post-Dispatch

Zealous efforts to get drunken drivers off the road so they cannot kill someone — which happens in this country every 53 minutes — are welcome. But they should not be so zealous as to erode constitutional rights.

The U.S. Supreme Court upheld those rights two weeks ago in a ruling that grew out of a Missouri policy that requires a blood test — even without a search warrant — for anyone arrested on a charge of driving under the influence. The court said the policy violates the Constitution’s Fourth Amendment ban on unreasonable searches.

The justices left some leeway for law enforcement and the courts, however, saying that a warrantless test could be conducted if there was justification and if circumstances demanded immediate action.

In writing for the majority, Justice Sonia Sotomayor said that drawing blood to test for alcohol concentration is “an invasion of bodily integrity” and that law enforcement authorities most often have enough time to get a warrant.

The last time the court ruled on a drunken driving case involving the Fourth Amendment warrant requirement was in 1966. In that era, there were no cell phones, no text messages and no fax machines. At that time the court exempted drunken driving cases from requirements that police get warrants before testing blood. The rationale was that officers wouldn’t have time to get a warrant because alcohol quickly dissipates in the bloodstream.

Nearly 50 years ago, that was probably true. Today, with phone calls, email and fax machines, it often is not.

In this latest ruling, the court said the exemption is no longer guaranteed. Justice Sotomayor’s opinion said the court’s earlier rulings did not support a blanket rule that blood could be drawn by authorities without ever having to seek a warrant first. It also stressed that state and local governments have adopted new procedures that make it easier and faster to get blood-test warrants and that those procedures will help assure that blood alcohol evidence will not disappear before a test can be made.

The case, Missouri v. McNeely, grew out of a traffic stop in October 2010. Tyler McNeely was pulled over for speeding. He subsequently failed field sobriety tests and refused to take a breath test when asked by Highway Patrol Cpl. Mark Winder.

Winder then took him to a hospital where he refused to take a blood test. Winder told the lab technician to take a blood sample anyway and results showed that McNeely’s blood-alcohol level was almost twice the legal limit.

A trial judge excluded the blood test results because the evidence was collected without a warrant. The state argued that delaying the test while the officer sought a warrant amounted to an exigent circumstance because the alcohol in his blood would be destroyed.

In the 1966 case, the court ruling involved an accident. Writing for the majority, Justice William J. Brennan carved out what he called a “stringently limited” exception because of the likelihood that evidence — the alcohol in the driver’s blood — would be destroyed during the delay.

Arguing on behalf of McNeely, the American Civil Liberties Union said his case was a routine traffic stop and didn’t meet the circumstances of an emergency established in the earlier case.

While the Supreme Court did the right thing, McNeely is still in trouble. Under a separate law that wasn’t part of the case, his driver’s license was revoked because he refused to take the breath and blood tests. That means he is still liable for a drunken-driving charge.

In both situations, justice prevails.