Supreme Court DUI Blood Test Ruling: Police Must Try To Obtain Search Warrant

[Purveyor]

Source: Associated Press

WASHINGTON — The Supreme Court has ruled that police must usually try to obtain a search warrant from a judge before ordering blood tests for drunken-driving suspects.

The justices on Wednesday sided with a Missouri man who was subjected to a blood test without a warrant and found to have nearly twice the legal limit of alcohol in his blood.

Justice Sonia Sotomayor said for the court that the natural dissipation of alcohol in the blood is generally not sufficient reason to jettison the requirement that police get a judge's approval before drawing a blood sample.

Read more: http://www.huffingtonpost.com/2013/04/17/supreme-court-dui-blood_n_3100551.html?utm_hp_ref=politics

[forestpath]

1. As usual the Obama administration is against civil liberties.

[happyslug]

2. Here is the Actual Opinion

Last edited Wed Apr 17, 2013, 12:21 PM - Edit history (1)

http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

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.

Section 11-C deals with the argument for a Per Se exception to the need for a Warrant given that Alcohol is being removed from the body by the liver as the officer takes the suspect to the Hospital for the test. Sotomayor, Scalia, Ginsburg and Kagan ALL reject that argument (i.e. the fact the blood alcohol level is falling is NOT grounds NOT to get a warrant).

Section III deals with "other arguments" for not getting an warrant. The same four justices again reject these arguments on the grounds that over the last 40 years the Federal Government and the States have permitted warrants to be obtained other then going in front of a judge, i.e. Police officers can CALL a Judge by Phone, fax him or even e-mail a Judge to get a Warrant, thus such a warrant can be obtains in most circumstances.

Kennedy agreed on the need for warrant in this case, but rejects the above two sections that those issues need NOT be resolved in this case and the court should wait for a better case to decide those two issues.

CHIEF JUSTICE ROBERTS, JUSTICE BREYER and JUSTICE ALITO dissent to argue that due to the nature of Alcohol being removed from the body makes getting blood test an emergency and thus no need for a warrant BEFORE the blood is drawn just by the nature of the body getting rid of Alcohol. No consideration of any delay due to having to see

Thomas, dissents on different grounds, that the testimony at trial pointed out that you could have up to a two hour delay in getting a warrant, and that with the alcohol content in the blood slowly dropping, means the Police Officer had to get the test done NOW or by the time they obtained a warrant it would be to late.

[DainBramaged]

3. THOMAS, J., filed a dissenting opinion

of course the asshole did.

[Demit]

14. LOL, that's the first thing I said, "Of course he did."

[still_one]

4. I suspect the driver was stopped due to erratic driving. In California

You are given a choice, breath, blood or urine, or no test, which is an implicit admission of guilt

[Socal31]

47. Not anymore.

Changed slightly this year.

[bettyellen]

5. I don't get it, try to obtain it? How do they get one at night? What happens when they cannot?

Can they use brethalysers instead?
I don't think it's a civil liberty to drive drunk.

[The Stranger]

7. They call a judge. They do it all the time.

Real simple. Problem solved. Constitution intact.

[bettyellen]

8. I have no idea. I live in an area where there is waaay too much DUI..... hot button issue for me,

lost both my sisters that way. Asshole had repeated DUIs before and should not have had a license.

[The Stranger]

18. I'm sorry for your loss.

That is terrible.

[bettyellen]

49. thank you. impossible for me to be objective, of course. but I see / hear of lots of people

driving impaired, and I just shake my head. It's a fucking lifestyle for some people. Yikes.

[The Stranger]

56. Your perspective is very important to the debate.

Too often the law becomes a series of inhuman, seemingly meaningless words.

Thanks for giving us some of your experience.

[cstanleytech]

20. Thats a sentencing issue not a constitutional search one though which is the issue here.

Frankly I agree that they should require a judge to issue a warrant if the person refuses to voluntarily submit for it if asked but on the other hand if they refuse to submit for one and a warrant has to be issued to get it then the fine and or prison time should be at the very least doubled if not tripled.

[Comrade Grumpy]

24. Are you seriously saying someone should be punished for exercising his rights?

You might want to rethink that.

[cstanleytech]

26. They arent being punished for exercising their rights.

They only end up being punished if they are drunk.

[retread]

42. May I assume you are NOT a minority who has been stopped late at night?

You think police don't punish people for exercising their rights?

[Warpy]

27. I can see it for something invasive like a blood test

but not a breathalyzer, which is not an invasive test.

This ruling makes a lot of sense to me. Venipuncture is not without complications, although it's generally safe.

Personally, I think people who flunk a breathalyzer should insist on a serum alcohol test to back it up or disprove it, just in case the machinery hasn't been calibrated for a while.

But yeah, make it voluntary or make the cops get a warrant.

[NYC Liberal]

32. That would be unconstitutional in the extreme.

You can't increase penalties for not waiving your constitutional rights, even if the person ends up being convicted.

Imagine if Congress passed a law saying that if you invoke your Fifth Amendment right against self-incrimination, your sentence is automatically doubled if convicted. Think that would fly? This would be the same thing.

[cstanleytech]

38. That would be up to the courts to decide. nt

[NYC Liberal]

39. I'm on my phone so I can't do much link finding but

here's a Florida state court case that threw out a life sentence for vindictive sentencing (refusal to waive the right to appeal).

http://caselaw.findlaw.com/fl-district-court-of-appeal/1541804.html

[cstanleytech]

40. I am not sure if that would apply. A person we are discussing is

still free to appeal their case before a court unlike that case you linked.
As for the vindictive aspect........well I think scotus might have answered that via http://en.wikipedia.org/wiki/Ewing_v._California

[NYC Liberal]

44. You can't punish someone for not waiving their rights

Otherwise those rights are meaningless.

How about an increased sentence for not waiving your 4th amendment rights when the cops come to search your house? Or an increased sentence for not waiving your right to a jury trial?

[cstanleytech]

53. No but you can charge them with different

crimes and or seek longer prison terms depending on how cooperative they are.

[bowens43]

12. Huh? No one said that is.

what is said is that they cannot do an invasive medical procedure without a warrant. You think that's unreasonable?

[bettyellen]

15. No, I think there has to be a better way. Laws are already too lax on repeat offenders.

I do think some people need their cars taken away.

[Warpy]

28. They do that in my town.

Still, I assume that anyone on the rood after noon has a 40% chance of being blotto.

Drunks out west are something special. I never saw a lot of this shit in Boston.

[bettyellen]

51. It seems to be a more popular/ acceptable thing in suburbia.

glad I live a 5 min subway ride to midtown.

[happyslug]

16. The Majority addressed your issue, and pointed out the Officer could have CALLED for a warrant

The Majority pointed out that over the last 40 years, it has become easier for Police Officers to obtain warrants when warrants are needed (easier in the sense a JUDGE can be found to obtain a warrant, as oppose to making it easier to get the warrant once you are in front of a Judge). Given that situation, there is NO need for a special rule to get blood tests without a warrant. Warrants can be obtained quickly without to much waiting given today's technology. Warrants's can be obtained by phone, by Fax by Email.

[bettyellen]

52. Tks, I had no idea. Last time my brother had to get an emergency warrant (house search, child rape

- with tons of taped evidence) he was fighting against the clock and IIRC part was because the judge was going home. And they also had to get the dog wranglers in there too.
But I guess that was about 15 years ago or more. When they got in, btw, the camera was pointed at the bed with tons of evidence. I wish he could have arrested the Mom too. He violated the Mom's civil rights by witholding her phone for a few hours and was willing to arrest her if he had to. I'm not enough of an absolutist not to be damned proud of him.
But yeah, the blood test shld require a warrant. I had no idea they could get them so late these days.

[happyslug]

55. In most areas it is quick and relatively easy to get a warrant

Thomas pointed out that at trial it was determined it would take a few hours to get a warrant. When I read the opinion I was seeing Judge Learned Hand at work.

Judge Learned Hand (that was his name) was a very influential Federal judge, the most quoted NON-US Supreme Court Judge in legal opinions of the US Supreme Court and elsewhere.

http://en.wikipedia.org/wiki/Learned_Hand

In one of his cases he ruled on, involved barges on the Mississippi river and the use of Radios for communications. Now, this is the 1920s and most barges did NOT have radios, but Judge Hand ruled that the law had to to encourage the use of safety equipment. One way to encourage the adoption of such safety equipment is to set up the law that make someone liable for damages that could have been avoided if they had the safety equipment. In the case in front of him, he ruled the barge without the radio could have avoided the accident between the two barges if he had a radio and thus he had to pay for all of the damages on the grounds the damages would have been avoided if he had a radio. It was no defense that Radios were NOT common on Barges at that time period.

I see that decision, a decision still studied in law schools today, coming into play in this decision. Warrants are to be preferred and Police should be encouraged to get one if they can. One way to encourage such requests for a warrant by police is to minimize the exceptions to the need of a warrant. One was to discourage exceptions is to force the States to adopt polices that encourage rapid assess to warrants.

Thus, the majority is saying, it is better to get a Court Order or Warrant, and they will NOT encouraged exceptions to that rule except under clear situations that are NOT foreseeable. Police officers arresting drunks at night is NOT unforeseeable and thus State can (and many have) set up ways for police officers to get a warrant at night. To permit an exception to a warrant is to encourage police NOT to get a warrant and the Court wants to encourage the Police to get a warrant, and to force the states to set up ways for the police to get a warrant.

As Judge Hand ruled in regards to Radios on Barges in the 1920s, the law has to encourage people to do what is right. Exceptions, breeds exceptions. Where do you stop the exception? Judge hand ruled that Radios were so much an improvement in safety that NOT to have one was a safety hazard. The court in this case is following Judge Hand's logic, modern technology makes it a lot easier to get a warrant today then it did every 20 years ago and the court should encourage Police getting such warrants whenever possible. With modern technology, Police can type in a report from their Police Cruiser and the Judge can send back a electronic search warrant (which the Police officer may or may not print out, modern printers do NOT take up that much room). You no longer have to find a judge, wake him up and find his quill pen and ink to sign a warrant. All that can be done electronically and in many states it is done electronically today. Arresting drunks at Night is NOT unforeseeable and thus the States must develop whys to get warrants for blood tests on such drunks when they are arrested at night.

25 years ago I was using a Laptop and a printer in the Field in my National Guard Days (It was a type writer that could be used as a printer, quite large, but able to fit into the back of a 2 1/2 ton trucks so I Could print out work order sheets instead of hand writing them). I bring this up for today, what I used 25 years ago is slow and heavy compared to what people can get today at 1/4 of the price.

I see this majority also ruling that when a dispute occurs between a police officer and someone the officer is arresting, the lack of a video recording of the incident will be held against the Police Officer. The reason is quite simple, the Police officer knows he of she is going into a hostile situation and are in the best position to record it.

If I was a police officer I would have a video against the windshield (and always aim the Video at where I suspect any problem will occur), a video on me (Ideally on the side of the hat or helmet) and I would be tempted to see if I could get one for my front pocket looking forward. The reason for the three camera is simple, the one in the car, records what is happening in front of the car. The one on the hat or helmet is recording what the officer is looking at, even if his body is pointed elsewhere. The one in his pocket recording what is happening in front of the officer. If one of the three camera are broken, then you have the other two.

I would also get a fourth Camera, to be used as a Camera. The Video Camera I mentioned above are good, but due to their size the lens are quite small thus the pictures are marginal. A Single Len Reflex (SLR)with video capacity would be a good camera to use as a camera. The primary advantage would be the larger lens provides better pictures. A SLR is to big to be used to record what is going on around the officer, but in its niche it is supreme.

Side note: As to Cameras on guns, I consider them a waste of money. A pistol is to be holstered until it is needed (and the other camera will show if the gun was needed or not). A gun on a Camera will just show what the shooter was firing at, no context as to before the shooting. The camera on the hat or helmet and the camera in the front would show not only what you are shooting at, but the context of why the pistil was pulled. If I was on the Jury I do not need to see a blurred picture as the gun is pulled from the holster, then a still picture as the weapon is fired, then a blur picture as the shooter reacts to the recoil of the gun. No context of why the gun was pulled, makes such gun camera useless.

[NYC Liberal]

29. It's not a civil liberty to murder someone, but that doesn't mean cops

don't need to get a warrant to search your house if they're investigating.

[pennylane100]

33. There is a rotation of judges thart must be available at all times.

[The Flaming Red Head]

41. If they can't hit a vein, then they beat the fuck out of you

and call it a refusal. In Arkansas, anyway.

[retread]

43. Not just in Arkansas.

[Mike Daniels]

6. So refuse the breath test and hope a judge can't be reached before your BAC drops?

I would think that the system would allow there to be a general blanket warrant for this BS where it's pre-signed and someone just needs to put a date down.

[WaitWut]

10. Down here in Texas....

On big holiday weekends they will actually have Judges riding with the DWI task force officers (or so I understand it.)

Not that it is a bad idea, but it is a little too "Judge Dredd" for me.

[LanternWaste]

45. the judges are on call at the courthouse to receive calls from the officers

The judges do not ride with enforcement; they are however, on call at the courthouse to receive calls from the officers, and may issue a warrant as needed, via phone.

(specific to TX, where I live too)

[WaitWut]

46. Ahh I see,

Thank you for the clarification.

[bowens43]

13. You're kidding right? Talk about BS...fuck liberty , right?

[former9thward]

23. Your suggestion would violate the 4th amendment.

There is no such thing as "general blanket" warrants. The 4th demands warrants be specific. In my city there are judges designated to be called at any hour to approve warrants that are sent and signed electronically.

[AngryAmish]

31. That blanket warrant is invalid and the test results would get bounced

Not breath, no blood, no case.

[pennylane100]

34. I think that that would result in an automatic "Get out of Jail Free" Card.

[Hassin Bin Sober]

35. Yeah. Blanket pre-filled warrants for everyone! Yay!

[Posteritatis]

50. People 'would think' a lot of things that don't happen. (nt)

[gvstn]

11. Hmm

I haven't thought about this in many years. When I first got my license (and the last time I read the Rules of the Road guide/test booklet) the rule was you must take any DUI test the officer asks for or lose your license for 1 year. It was implied consent as part of accepting a license.

These days losing your license for a year would seem like "getting off easy" for a DUI. You would skip all the mandatory AA classes and lawyer costs and get about the same penalty as if you had gone to court. I'd have to research that to find out what current penalties are but I'm guessing they have been strengthened.

[Purplehazed]

19. Implied consent......

gets tangled up with the fourth amendment, unreasonable search and seizure.
There are two components related to DUI, the administrative side side (the state licensing authority) where your rights are limited and then the criminal court where you are supposed to have all the rights we typically expect.

It amounts to a law that requires one to give evidence against oneself or suffer a penalty. It may play out just fine when you're talking about an administrative license suspension but it is different when you are being charged with a crime. From my reading, judges have typically allowed a lowered standard of evidence collection in cases related to DUI.

I think that some states require submitting to field sobriety tests or lose their license. There is no such thing as passing the field sobriety test, only levels of failure/impairment. Even when they are conducted exactly as proscribed, no oncoming headlights, level ground, correct weight of the tested, clearly laid out line on the ground etc, they are only 75% effective at predicting impairment. That is a problem when it comes to being charged with a crime. How effective is the test when an officer has not been deemed proficient or he he makes a suspect walk an imaginary line? How are the accused rights protected when a judge allows substandard evidence to be used for a conviction.

Please don't flame me. I'm not advocating impaired driving. I've been through this. Ultimately my record was cleared, but it cost me dearly.

[gvstn]

22. Thanks for all the details on the validity of the impairment tests.

I'm not advocating drinking and driving either. I was just thinking about the choice to refuse a test and asking for a court order. I hear public service announcements listing the penalties for DUI and it being close to $10,000 now including lawyer fees, and was thinking back to the old penalties where the worst you could get was one year revoked license for not taking the test. That penalty goes back to the early 80's when MADD was just gaining steam. I doubt DUI was even a true criminal matter and maybe $500 dollar fine if you were waaayyy over the limit.

Times have changed and I guess I should pick up a booklet and read up on my state's current laws. I'm not a big partier but even a second glass of wine at a restaurant can potentially cause huge headaches as seems to have been your case. I'm glad you got things resolved.

[apnu]

17. Are Breathalyzers some how deficient now?

Why the need to draw blood for a DUI?

[cstanleytech]

21. If not administered correctly, yes they may actually be deficient or

atleast thats what I read in a recent article
http://www.pennlive.com/midstate/index.ssf/2013/01/dauphin_county_judges_ruling_o.html

[happyslug]

25. Breathalyzer do NOT work, if someone refuses to breath into it, as in this case.

The Driver had REFUSED To do a breathalyzer test so the Officer took him to a Hospital for a blood test.

All the Supreme Court did was ruled that as a matter of the Fourth Amendment, a warrant should have been obtained BEFORE the blood was taken, Thus the blood test is NOT admissible in court, but the refusal to take the Breathalyzer is admissible.

This case sounds like the REAL argument (not the argument in front of the Supreme Court, which was a legal technical legal argument) was what punishment would the driver get. If the punishment for REFUSING to take the breathalyzer is less then being convicted of have TWICE the legal limit of alcohol, that explains why the appeal was done. Given the Supreme Court Decision, all the State of Missouri can convict the driver of, is refusing to take the Breathalyzer test. Given that driving under the influence of TWICE the legal limit, in most jurisdiction, is a WORSE offense then refusing to take the breathalyzer, that would explain why the appeal was taken.

[Socal31]

48. Drugs.

Drugs of all schedules.

[JDPriestly]

30. Never had a DUI blood test. Never had a reason to have one. Never had even

the remotest possibility of having one, but this is important.

Maybe the 4th Amendment will mean as much as the 2nd one some day.

It looks like the new gals in town have changed the team a lot.

This is wonderful. I hope they keep it up.

[pennylane100]

36. Your comment made me wonder why the cop would not get a warrant

when taking the driver to the hospital. Maybe anyone that thinks this is a bad call by the supreme court should worry about the level of training that this cop received.

If Justice Thomas is the only member of this conservative court to think it is OK to conduct an invasive medical procedure without a warrant, one certainly has to question of how well this cop understands the law he is paid to uphold.

[JDPriestly]

37. True. It isn't hard to get a warrant. I think that certain judges are assigned to be on

call for that. Anyway, that is my understanding. They used to be called warrant judges.

[Ash_F]

54. If you can't secure a conviction with a video and a police statement then you don't deserve one.

This is just tormenting people because of sheer laziness. There was a case in Texas where they forcibly took some woman's blood and she had ZERO alcohol in her system.