April 17, 2013

A fractured opinion about when the police can draw blood for a warrant after a drunk-driving arrest.

It's hard to know where to start in this new opinion, Missouri v. McNeely:
Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.
I start with Justice Thomas, who says the natural dissipation of alcohol in the blood is always the "exigent circumstance" that avoids the warrant requirement.  He gives a clear rule.


The Chief Justice writes:
I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
He would say that the natural dissipation of alcohol in the blood is an exigent circumstance unless there is time to get a warrant. He wants something closer to a rule.  Kennedy, who is the one who deprives Sotomayor of a majority in some parts of her opinion, wants less of a rule from the Court, so that states and local governments can work out their own rules.

And here's Sotomayor:
The State’s proposed per se rule... fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple....
Basically, using the telephone, it can be made very easy to get these warrants. You wouldn't want to remove the incentive on the police to set up these procedures and to make them efficient and thus to avoid the destruction-of-evidence problem.

46 comments:

jr565 said...

How easy will it really to get these warrants? At say two in the morning, how long will a cop have to wait to get a warrant to have someone;s blood drawn?

bagoh20 said...

The real "exigent circumstance" is impairment, and if they tested that instead of something unreliably related, then none of this would be necessary, and we would actually have a fair law that covered any reason rather than just alcohol, which is probably not even the most common cause.

traditionalguy said...

I say they need a lawyer appointed to consult with before they are required to testify against themselves in blood.

Michelle Dulak Thomson said...

Another illustration of the futility of talking about the "left side" and "right side" of the court. Both "sides" seem to have split equally here, to the extent that it's possible for a body of nine members to split equally. But that's not an uncommon sort of lineup at all, apart from the number of separate concurrences and dissents, is it? There have been several examples recently.

Rob said...

I wonder if Sotomayor's reference to the passage of 47 years is a somewhat snide allusion to an upcoming opinion in the pending voting rights case.

bagoh20 said...

Attitude about alcohol is one of our great bridge issues. Everyone likes a good legal buzz.

Nonapod said...

The real "exigent circumstance" is impairment, and if they tested that instead of something unreliably related, then none of this would be necessary

I agree wholeheartedly, but it's currently pretty difficult to fairly quantify impairment quickly and inexpensively. Standing on one leg and touching your nose with your eyes closed will probably identify if you're completely wasted I guess, but it doesn't seem like it would be super accurate in borderline cases where response time and overcompensation could be a factor in safety.

Michelle Dulak Thomson said...

bagoh20,

The real "exigent circumstance" is impairment, and if they tested that instead of something unreliably related, then none of this would be necessary, and we would actually have a fair law that covered any reason rather than just alcohol, which is probably not even the most common cause.

Oh, I think alcohol probably is the most common cause. And testing "impairment" is harder -- partly in the "how do you know whether someone's fit to drive?" sense, but much more in the "how do you prove it?" sense. A nice blood sample is a fact; testimony that a driver was so exhausted that he could barely keep his eyes open when stopped is evidence of impairment, but it's eyewitness testimony, not something in a nice little vial that can be checked and rechecked.

bagoh20 said...

"...but it's currently pretty difficult to fairly quantify impairment quickly and inexpensively"

I think it would be easy to build a simple and portable device could be built that would test reaction time, accuracy, and decision making. This is what matters, and why you can't do these thing well enough to drive safely is irrelevant to the person you plow into and cripple or kill.

I bet the device already exsits.

Ex-prosecutor said...

This is a crazy and utterly workable opinion. jr565 has it right - getting a search warrant, even contacting a judge at 2 AM or during a holiday weekend, is not so easy as the USSC seems to think. With this, as with most search and seizure opinions, the justices show they have no idea of the problems they cause for police officers. A bright-line rule, such as that of Justice Thomas, is needed.

This is the sort of non-sense I'd expect from law school professors, mine anyway. Professor Althouse is the exception, I expect.

Nonapod said...

bagoh20 said...

I think it would be easy to build a simple and portable device could be built that would test reaction time, accuracy, and decision making. This is what matters, and why you can't do these thing well enough to drive safely is irrelevant to the person you plow into and cripple or kill.


Exactly. Impairment can be caused by being drunk, high, or sleep deprived and we only seem to be testing for one of those. I wonder how many deaths are caused each year due to sleep deprived driving.

Sam L. said...

Videotape/digitally record the stop to show the stoppee's lack of coordination, slurred sepech (like my spelling), inability to stay awake, etc.

Bob Ellison said...

How about let's question the exclusionary rule itself?

Nonapod said...

Here's a fun online reaction time test. My average response time is 0.269. Maybe such a test could be used to help determine impairment.

bagoh20 said...

I'm obviously too impaired to drive my preview button, but hopefully nobody will get hurt. Get out of my wayyyyyy!

Peter said...

""...but it's currently pretty difficult to fairly quantify impairment quickly and inexpensively"

It may be that impairment doesn't correlate perfectly with BAC, but it's irrelevent as state laws invariably specify that one will be considered impaired above a specified BAC.

Michelle Dulak Thomson said...

Nonapod,

Exactly. Impairment can be caused by being drunk, high, or sleep deprived and we only seem to be testing for one of those. I wonder how many deaths are caused each year due to sleep deprived driving.

The great French horn player Dennis Brain died when he fell asleep at the wheel and drove into a tree. The year I was in England, I played in a string quartet with a violinist who said she'd drifted off driving home from a gig just about where Brain died. She jerked herself awake in time. And pulled over.

bagoh20,

What do you need a "device" for? Scratch what I said before. Sam L. is right. Video ought to be good enough for a jury. Coordination, walking a line, the good old "count down from 100 by sevens," whatever. But it has to be documented.

bagoh20 said...

Some people are more dangerous with a zero BAC than some others at double the limit. If I just huffed some glue, or my new designer drug is just kicking in, then I'm good to go on the test. I'm not suggesting that I would only use one at a time, I'm just saying some people might.

bpm4532 said...

Everyone needs a ride-along lawyer these days, both citizens and public officials. The law is complex and neither side is likely to know it sufficiently. We're handing over too much discretion to police and government against which citizens have to incur significant expense merely to prove their innocence and avoid reckless seizure and forfeiture of private property.

Larry J said...

Videotape is good, but if someone could develop and validate an app to test for impairment, I think that could be legally admissible. Put the app and a tablet in the cop cars and have the suspects take the test. I agree that impairment is the issue. Some alcoholics have high tolerances. Their BAC can be quite high without them being impaired. Other people, like me, who drink very little alcohol could be significantly impaired with a legal BAC.

bagoh20 said...

"Coordination, walking a line, the good old "count down from 100 by sevens,"

I don't like the field test. Driving is a completely different skill from those things. Some people, especially older people who can drive just fine, would have problems with the coordination standing, and maybe even the alphabet or counting.

I imagine an actual driving simulator that would fit in a small brief case and unfold to conduct the test. This eliminates much of the lawyering that would be available to refute the applicability of the results. If you can't drive the test device through simulated driving scenarios, then you probably can't drive.

I bet a lot of people who can drive fine may stagger walking a line or fail to recite the alphabet backwards, especially in front of a cop, who introduces his own variables, by how he does the test.

Nonapod said...

Ultimately though we need self driving cars. Come on Google, when are those robot cars gonna be ready?

Larry J said...

Nonapod said...
Ultimately though we need self driving cars. Come on Google, when are those robot cars gonna be ready?


I doubt even Google could afford the product liability insurance for self-driving cars. If you think (as I do) that those 1-800-BADDRUG commercials are terrible, just wait until the tort lawyers go trolling for auto accident victims from self-driven cars. Someone should buy up 1-800-BADCARS.

bagoh20 said...

"Ultimately though we need self driving cars."

That would be awesome. I would quadruple my driving time and fun if I could sleep and work while the car drives. Global warming theory would get a huge test just from me alone.

bagoh20 said...

Hell, I would live in my car if it could drive me from place to place.

bagoh20 said...

And I would be drunk a lot more too.

Michelle Dulak Thomson said...

bagoh20,

I imagine an actual driving simulator that would fit in a small brief case and unfold to conduct the test. This eliminates much of the lawyering that would be available to refute the applicability of the results. If you can't drive the test device through simulated driving scenarios, then you probably can't drive.

The difficulty here, it seems to me, is that driving, simulated, with one or more police figuratively or indeed literally breathing down your neck is "distracted driving." You can't help but be attentive to something that's not what you ought to be concentrating on.

Strelnikov said...

Good. the last thing I want is for the courts to make it easier for the cops to jail people. Fuck them. Get a warrant if you want to violate me.

Strelnikov said...

Good. the last thing I want is for the courts to make it easier for the cops to jail people. Fuck them. Get a warrant if you want to violate me.

Lem said...

It isn't bad enough that you have to stand on one leg and count backwards... now they are going to break that leg and draw blood?

Achilles said...

Fortunately this will soon be a non-issue. Cars will be driving themselves better than we do soon.

I wonder what the various State Patrol organizations will do without all of that income from tickets and drunk driving arrests and fines?

gregq said...

I kind of like the CJ's opinion, but I have to wonder:

What's the point? If your expectation is that the police officer will always get the warrant, what's the point in requiring him to get one? Just making sure that there's always a judge involved, even though all the judge does is rubber stamp the police officer's request?

I entirely agree: sticking a needle in someone is quite invasive, and should require a warrant. But if a request for a warrant is always going to be approved, then getting one is just play-acting. And we shouldn't be doing that with our civil liberties

Steven said...

If judges are too hard to get, the state can create more judges.

Ignorance is Bliss said...

bagoh20 said...

I think it would be easy to build a simple and portable device could be built that would test reaction time, accuracy, and decision making. This is what matters...

I bet it would be much more difficult than you think to get something that could accurately measure risk of accident. People who are generally not that good at reaction time, accuracy, and decision making can compensate a great deal by driving the speed limit, leaving enough space between them and the car in front, planning their route in advance, and avoiding distractions.

The people you need to worry about are the ones who are usually good drivers, but who impair themselves down to the not-that-good driver level, but with none of the good habits to compensate.

ken in sc said...

I spent most of my younger years driving drunk. Even though one of my friends killed himself driving drunk, or maybe driving sleepy. He had drunk himself to sleep and his girlfriend called him to come help her with a flat tire. I never had an accident or a drunk driving conviction. Sometimes I had to look out the window in the morning to see if my car was there because I did not remember driving home.

Have you ever tried to ride a bicycle after drinking? That's a lot more dangerous than driving drunk.

I don't do it anymore, I just stay home. However, the idea that drunk driving is a big bad safety issue is wrong. Millions of drunk drivers do it safely every day. The Irish have made some progress on this issue lately—they have made it legal to drive short distances late at night, drunk.

Dante said...

I'm probably OK with the BAC limits. While I agree it isn't perfect, as Bagoh and others point out, it's hard to imagine any way that's going to really test. And people do die from drunk drivers. I suppose the hope is not to go overboard with craziness.

What bothers me, a huge amount, is the DUI checkpoints. How can that possibly be constitutional? I simply don't understand.

And the same thing goes for the fishing expedition against the Duke Lacrosse players, where they were all required to provide DNA (except a black dude). Where was the ACLU on that? I sent them a note, but they never replied.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

bagoh20 said...

Dante, We know it says that, but we're not lawyers, and if we are, we're not judges, and if we are, we're not SCOTUS judges. Once you get that high, you start seeing things that most people can't, like penumbras, and yellow submarines. It's good shit.

jr565 said...

Dante wrote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,


I think the key word is unreasonable. There is a lot of leeway and latitude and interpretative nuance that goes with that word. Is it unreasonable to search someone, for example who is driving erraticly down the street in a car who looks drunk? Or who is dressed in gang colors in a gang neighborhood who is flashing colors?

Bruce Hayden said...

It may be that impairment doesn't correlate perfectly with BAC, but it's irrelevent as state laws invariably specify that one will be considered impaired above a specified BAC.

Well, BAC doesn't correlate very well with impairment, until you get into the significant impairment levels. MADD bragged about all the lives that they saved by getting the legal limit reduced from .1 to .08. In reality, they probably didn't save any lives. Why? They assume that the curve is linear. But for most of us, it is much closer to exponential. That means that at .08 or .1, you are probably not that dangerous, but double those levels, and the danger goes up many more times than just double. Triple them instead, and most of us are close to death. I think that it is somewhere between .2 and .3 that most of those who are not heavy drinkers pass out.

My big problem with the decision is that a lot of cops seem to blythly skip over the probable cause thingy. A phone warrant would require that they articulate their probable cause, but making the requirement for a warrant depend on the availability of a judge or magistrate would seemingly reward jurisdictions for not making them available during after-hours, by phone, etc. Big cities and counties have enough judges that they could make them available by phone on an on-call basis. It would also be useful for a lot of those warrantless entries that some departments seem to be making these days. If there is a judge on-call, there should almost never be a case where the police could not control the perimeter (or suspect) long enough to get a warrant.

Bruce Hayden said...

I think the key word is unreasonable. There is a lot of leeway and latitude and interpretative nuance that goes with that word. Is it unreasonable to search someone, for example who is driving erraticly down the street in a car who looks drunk? Or who is dressed in gang colors in a gang neighborhood who is flashing colors?

I think that there is a big difference here, and that is the difference between probable cause to suspect a specific crime, and to suspect that the suspect is up to no good, and sometime in the future, maybe soon, maybe not, may engage in some unspecified crime. Now, in a lot of inner cities, if you can see the outline of a gun, etc., and if concealed carry permits are hard to acquire, then there may be probable cause for a frisk for a weapon. (A lot of cops will frisk anyway, justifying it as a Terry Stop - which, I think, is overused). And, for the most part, mere flashing gang signs and wearing gang colors is protected by the 1st Amdt, and, so, I think, cannot be utilized as probable cause, absent more.

Bruce Hayden said...

And the same thing goes for the fishing expedition against the Duke Lacrosse players, where they were all required to provide DNA (except a black dude). Where was the ACLU on that? I sent them a note, but they never replied.

I think that the answer there is that they probably weren't actually required to give their DNA, it was just strongly suggested, with the implication that those who didn't would become the focus of the investigation. But, they all complied, because they all knew that they were innocent.

Dante said...

jr565: I'm talking about sobriety checkpoints, where they are pulling people over with no evidence other than they are driving.

bagoh20: I'm in awe of your terse statements with so much punch.

Dante said...

I think that the answer there is that they probably weren't actually required to give their DNA, it was just strongly suggested, with the implication that those who didn't would become the focus of the investigation. But, they all complied, because they all knew that they were innocent.

Then you would be wrong. There was a court order to get the samples, excluding the one black player.

Dante said...

I don't know why I do this, but here it is:

http://www.vanceholmes.com/court/trial_duke_timeline.html

March 23 -- Court ordered DNA testing of lacrosse team

Krumhorn said...

Whatever happened to the rubric that driving on public roads is a privilege, and in exchange for that privilege, you consent to testing to make sure drivers aren't impaired while exercising that privilege? Or did I dream that up when they forced me to take that eye exam at the DMV?

Methadras said...

Let's see. You can't compel me to take a field sobriety test, you can't compel me to take a breathalyzer test, you can't compel me to give urine or blood, but you can take away my license and/or car, which I can get back and pay a cheaper fee for vs. a DUI if I wait long enough for a warrant to compel me to give blood. Which by the way, I believe should be challenged as well. You cannot perform a medical procedure upon my body as a matter of compulsion.