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Originally published January 9, 2013 at 6:48 PM | Page modified January 10, 2013 at 3:46 PM

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Supreme Court seems wary of warrantless blood tests in DUI cases

The Supreme Court appeared reluctant Wednesday to allow police to routinely order blood tests for unwilling drunken-driving suspects without at least trying to obtain a search warrant from a judge.

Bloomberg News

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WASHINGTON - The Supreme Court on Wednesday considered requiring police to get a search warrant before forcing drunken-driving suspects to have blood drawn in a case that will shape privacy rights on the road.

The justices weighed Missouri’s contention that police need not take the time to get judicial approval, given how quickly alcohol dissipates in the bloodstream.

The hourlong argument session produced no clear consensus, as the court sought to balance the needs of police against what Chief Justice John Roberts called the “pretty scary image” of a handcuffed person being stuck with a needle. The case turns on the Fourth Amendment, which bars unreasonable searches.

The dispute may have day-to-day implications nationwide. More than 1.4 million people are arrested each year in the United States for driving under the influence, according to FBI statistics. About half the 50 states wouldn’t be directly affected because they have laws barring nonconsensual blood draws in the absence of a warrant, according to court papers filed by Tyler McNeely, the defendant in the case.

McNeely was pulled over for speeding in 2010 by a state highway patrolman in southeast Missouri, failed field sobriety tests and refused to take a breath test. The officer then took McNeely to a nearby hospital, where a technician drew blood over the handcuffed suspect’s objection.

Missouri argues that getting a nighttime warrant in Cape Girardeau County, where McNeely was arrested, takes an average of two hours, by which point a person’s blood-alcohol level may have dropped below the legal limit. The Obama administration backs Missouri in the case.

The state says alcohol typically dissipates in the bloodstream at a rate of 0.015 to 0.020 percentage points an hour. The limit in Missouri is 0.08 percent.

“The evidence is being lost at a significant rate with every minute that passes,” the state’s attorney, John Koester, argued Wednesday. Missouri is seeking to exempt drunken-driving cases from the normal rule that police must get a warrant for intrusive bodily searches.

Koester drew skeptical questions from across the court’s ideological spectrum. Justice Sonia Sotomayor questioned whether the Constitution guarantees a state access to “the very best evidence it can.”

Sotomayor, a diabetic who regularly gives herself insulin injections, said a blood draw was a much more serious intrusion into privacy rights than a breath test.

“Breathalyzers, in my mind, have a much different intrusion level,” she said. “They don’t intrude into your body.”

Justice Anthony Kennedy pointed to the track record of the states that require a warrant, saying they “make it work very well.”

McNeely’s lawyers say police in Cape Girardeau County often get warrants in less than half an hour. McNeely’s team also contends that modern technology expedites the process in much of the country, as officers file telephone or electronic applications with a judge.

His lead attorney, Steven Shapiro of the American Civil Liberties Union, argued that Missouri was seeking a “free pass” for the jurisdictions with the “slowest and most cumbersome” warrant processes.

Justice Antonin Scalia questioned whether a warrant requirement would have any practical effect. He said judges would virtually always issue a warrant when asked.

“Are any of these warrants ever turned down?” Scalia asked. When Shapiro said he didn’t know, the justice continued, “I bet you they’re not.”

Justice Elena Kagan floated a potential compromise, asking Koester and Justice Department attorney Nicole Saharsky whether police at least should be required to try to get a warrant, perhaps as they drive to the hospital.

“You always have some delay” before blood can be drawn, Kagan said. “Why can’t you use that amount of time, if you can, to try to get a warrant?”

McNeely’s lawyers, in court papers, pointed to Missouri’s “implied consent” law, which says drivers who refuse a blood or breath test automatically lose their license for a year.

McNeely contends that law suggests that drivers have the right to refuse a blood test. All 50 states have implied-consent laws in some form.

McNeely, who had been convicted of drunken driving twice before, was charged with a felony that might have subjected him to four years in prison.

The blood test showed McNeely had a 0.154 percent blood-alcohol level.

The Missouri Supreme Court ruled that prosecutors couldn’t use the test at trial, saying officers typically must seek a warrant.

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