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Four days ago I posted about a case, Missouri v. McNeely, that was to be argued to the United States Supreme Court.  See The Slow Death of the 4th Amendment in DUI Cases.  The case involved the forceful use of hypodermic needles on drunk driving suspects.  Following are comments from the Washington Post on the arguments yesterday and the justice's questions which may provide a window into this important issue:

Supreme Court Seems Unlikely to Let Police Order Blood Tests for  Drunk Driving Suspects

Washington, DC – Jan. 9 — The Supreme Court on Wednesday seemed unlikely to allow police to routinely force suspected drunk drivers to give a blood sample without the officers at least trying to obtain a warrant from a judge.

There seemed to be little, if any, support for the proposition that the usual constitutional protections that require a warrant for searches do not apply in drunk-driving arrests. Missouri, backed by the Obama administration, argued that a suspect’s dissipating blood-alcohol content meant that, in effect, evidence was being lost and thus drawing blood should not require consent or a judge’s order.

That argument drew fire almost immediately.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked. The justice, interestingly, is a diabetic who has given herself daily shots of insulin since childhood.

Justice Antonin Scalia immediately signaled that he considers a blood test different from other procedures the government may require.

“Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved . . . in his arm?” Scalia asked John N. Koester Jr., the Missouri prosecutor presenting the case for his state. Koester replied that a breathalyzer requires the suspect’s participation.

For most of the hour-long argument, the justices seemed to be debating among themselves what emergency circumstances — an inability to contact a magistrate late at night, for instance — might allow taking blood from an uncooperative suspect…

Courts nationwide are divided about whether a 1966 Supreme Court ruling created an emergency exception to the warrant requirement for taking blood or whether ”special facts” must be present to make a warrant unnecessary.

Koester and Assistant Solicitor General Nicole A. Saharsky argued that the rapid dissipation of alcohol was enough to relieve law enforcement from the warrant requirement.

“The police are facing a destruction of critical blood-alcohol evidence,” Saharsky told the court. “Every minute counts, and it’s reasonable for the officers to proceed.”

But Justice Ruth Bader Ginsburg said that it is relatively easy and quick for police to get a warrant — a phone call is often enough — and that police could attempt to secure one in the time it takes to drive a suspect to a hospital for the procedure. If 30 minutes passes without an answer, perhaps the officer could proceed, she suggested.

Steven R. Shapiro, legal director of the American Civil Liberties Union, represented McNeely and told the court that Missouri, the states supporting it and the U.S. government are asking for too much.

“The issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent,” Shapiro said.

He has noted that states may revoke a driver’s license for a suspect who refuses to take a test, so there is an incentive to agree. Shapiro said half of the states — Maryland and Virginia as well as the District of Columbia are not among them — prohibit blood draws without warrants…

For a clearer picture of what we're talking about, see my posts Forced Blood Draws by Cops in Back Seat, Suspect Resisting Forced Blood Draw is Tasered, Dies and Catheter Forced Up Penis After DUI Arrest.
 

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I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?  

How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

 

Illinois Court Blocks Forced Draw From Motorist


Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.

A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.

Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.

Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.

"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
 

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