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Because of their unpopularity, drunk driving cases are often used by police and prosecutors to chip away at the constitutional guarantees of our citizens.  See The DUI Exception to the Constitution.   Every once in awhile, however, the media shows a little courage and gets it right.  From an editorial in yesterday's New York Times:

Is the Driver Drunk?

Jan. 5.  New York, NY - The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.

DUI BLOG

The United States Supreme Court Thursday ruled in favor of a man who appealed his drunk driving conviction because the prosecutor violated the defendant’s constitutional right to confront the witnesses against him. In the original trial on the DWI charges the prosecutor relied on a lab report that alleged the man’s blood alcohol level was above the state’s legal limit.

The prosecutor called a supervisor from the crime lab to testify regarding the results shown on the lab report. The supervisor had not personally conducted the laboratory tests. A separate lab technician had conducted the DWI blood test sample analysis and signed the lab report. The prosecutor said the original analyst was on unpaid leave, without offering any further information.

At trial, the DWI defense objected to the supervisor’s testimony and the results alleged in the lab report on Sixth Amendment grounds. The trial judge overruled the objection and allowed the testimony and lab report. The jury convicted the defendant of driving while impaired.

Justice Ruth Bader Ginsburg, writing for the majority of the Supreme Court, says the surrogate testimony of the lab supervisor could not convey what the original lab analyst knew about the testing procedure at the time the tests were actually conducted. Ginsburg writes, “The Sixth Amendment does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”

Justice Kennedy offered his dissent, joined by Chief Justice John Roberts, and Justices Samuel Alito and Stephen Breyer. Kennedy writes, “In these circumstances, requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality,”

Source: AP via Fox News, “Court says lab analyst must testify to own work,” 23 Jun 2011

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