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Argument recap: Compromise on DUI blood tests?


Even allowing for the reality that what is said at a Supreme Court hearing does not necessarily dictate the outcome, now and then a case comes along where the Justices join so obviously in a common pursuit of a compromise that little suspense remains.  That happened on Wednesday, in the case of Missouri v. McNeely (docket 11-1425), when it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving.   Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one.

Most of the hour-long argument was spent in imagining the details of such a compromise outcome: start with the premise that getting a warrant is the preferred approach, but then define a set of “exigent circumstances” that will excuse the inability to get one within a fairly brief time — perhaps no more than a half-hour.  There would be no authorization, it appeared, for warrantless blood samples, across the board, on the premise that alcohol is always going to be disappearing fairly rapidly from the human bloodstream.

Two impressions were dominant throughout the argument: the Justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the Fourth Amendment warrant requirement should not be cast aside for all cases of drunk driving when officers decide to order a blood draw.   With those as starting points, the state of Missouri — and its partner here, the federal government — were immediately on notice that their plea to set aside any requirement of a warrant was in trouble.

Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court.  Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.

A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail.  “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?”  That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion.   And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.

Koester always learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument.   Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon.   “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.

Soon after that, Justices Ruth Bader Ginsburg and Elena Kagan began exploring alternative ways to maintain a basic warrant requirement, but to find ways to make exceptions after police made a reasonable attempt to get a warrant, but failed.   Justice Stephen G. Breyer then wondered why it would take more than a few minutes to apply for a warrant.  And Justice Sonia Sotomayor suggested that the Court should not write a decision that rewarded police in the least efficient jurisdictions, warrant-wise, by writing a national decision that ended any warrant requirement.

Those, of course, are the more liberal members of the Court, so their comments were hardly surprising.  But Justices Scalia and Kennedy took up some of the same refrains, when the federal government lawyer, Nicole A. Saharsky, began her argument by emphasizing that “every moment counts” when police want to get evidence to support a drunk-driving prosecution.  “Once we say police don’t need a warrant,” Scalia commented, “the game’s over,” even if it is possible to get a warrant by improved police and judicial procedures.  And both he and Kennedy reacted positively to the idea, suggested by Justice Ginsburg, that if police try to get a warrant but that turns out to take too long — say, more than a half-hour — then no warrant would be needed.

Justice Alito then suggested that the constitutional outcome should depend upon “the practicality in each jurisdiction,” so that where the process of issuing warrants moves quite rapidly, officers should not be allowed to proceed to order blood samples without a judge’s approval.   When Saharsky commented again that blood alcohol evidence is always in the process of being destroyed, and added that the Court had never made Fourth Amendment rules depend upon the practices in a given jurisdiction, Kennedy bluntly retorted that courts “make that judgment all the time; it is quite incorrect to say that we don’t look at the time factor.”

When Steven R. Shapiro, American Civil Liberties Union legal director acting as the lawyer for Missourian Tyler G. McNeely, took to the lectern to argue for a warrant requirement, his main task was not to give up the advantage that had developed on his side of the case.  He mainly avoided the potential pitfalls, such as seeming to argue that a warrant was always required.  He put his continuing stress on challenging what he called Missouri’s categorical approach against ever requiring a warrant.  He had a solid answer when Justice Scalia suggested that the only thing that a drunk-driving suspect would actually get out of a need for a warrant was delay, allowing the alcohol to dissipate.  Shapiro reminded Scalia of the constitutional virtue of having a neutral stand between the police and the public.

He almost made a continuing effort to suggest that getting a warrant was not a complex task, given that officers now can apply for one with a laptop computer and a cellphone.   But he was willing to concede that there could be circumstances where getting a warrant was not a practical alternative and, in those situations — such as an emergency — there might be “exigent circumstances” that would overcome the need for a warrant.

Chief Justice John G. Roberts, Jr., had given Missouri’s lawyer some added time for a rebuttal, but Koester did not use more than a few seconds of the time, to repeat again the argument that alcohol dissipates from the bloodstream rapidly — the core of an argument that had not worked well at all.


Recommended Citation: Lyle Denniston, Argument recap: Compromise on DUI blood tests?, SCOTUSblog (Jan. 9, 2013, 2:00 PM),