Can the Government Bleed You Dry? The Fourth Amendment Says Maybe

JURIST Guest Columnist Christopher Bader, Saint Louis University School of Law Class of 2013, analyzes the US Supreme Court's decision to grant certiorari in Missouri v. McNeeley and decide the scope of when a warrantless blood draw may be admissible evidence...

Just in time for Halloween, the Supreme Court granted certiorari in a case with definite horror-flick potential. A police officer pulls you over in the wee hours of a cold October morning. As he steps up to the vehicle, he shines his flashlight directly in your eyes, blinding you. You have had a few drinks and after routine field sobriety tests, the officer arrests you. However, instead of taking you to the station, you are whisked away to the hospital. Under the sterile glare of hospital lights, a doctor hovers over you, clutching a syringe. The officer directs the doctor to draw your blood. As your blood drains from your body and you slip into unconsciousness, you realize that this would make a great Supreme Court case.

While the real facts of Missouri v. McNeely might disappoint at the box office, the issue presented is still important to contemporary law-enforcement practice. The defendant was pulled over for a routine speeding violation. The officer, sensing the driver's intoxication, performed field sobriety tests. The defendant quickly failed them. He was arrested and after refusing a breathalyzer test, the officer immediately took him to a local hospital. There, he was subjected to a blood test even though he refused. The officer did not seek or obtain a warrant for the blood test.

The defendant moved to suppress the blood test evidence in the trial court on the grounds that it was obtained in violation of his Fourth Amendment right against unreasonable searches and seizures. The trial court sustained the motion. The Supreme Court of Missouri affirmed the trial court. It held that, under the US Supreme Court's ruling in Schmerber v. California, the officer's warrantless blood draw was not justified by the exigent circumstances exception to Fourth Amendment protections.

In Schmerber, the Court upheld the admissibility of a warrantless blood draw. It also enumerated a very limited exception to a defendant's Fourth Amendment rights in alcohol-related cases. The Court identified special facts, highly specific to the case at hand, which evidenced an emergency situation in which the delay in obtaining a warrant would threaten the destruction of evidence. Those special facts included:

  1. The percentage of alcohol in a person's blood begins to diminish shortly after drinking stops, and/or
  2. There was an accident requiring time to be taken to both transport the defendant to the hospital and to investigate the scene of the accident.
The Missouri Supreme Court, applying Schmerber, found that the officer in McNeely faced only a routine driving while under the influence arrest. There was neither an accident requiring investigation nor any injuries requiring immediate medical attention. The court determined that the state could not justify the warrantless blood draw on the mere fact "that blood-alcohol levels dissipate after drinking ceases."

In reaching this conclusion, the court contended with disparate treatment of the issue across the nation. The Oregon, Minnesota and Wisconsin Supreme Courts have all allowed warrantless blood draws under Schmerber. These courts created a per se rule that blood-alcohol dissipation was a circumstance exigent enough to shield the blood draw from Fourth Amendment attack.

Conversely, the Utah and Iowa Supreme Courts and the US Court of Appeals for the Ninth Circuit have all held that blood-alcohol deterioration alone is insufficient to support a warrantless, nonconsensual blood draw. Siding with the reasoning of those courts, the McNeely court read Schmerber to require special facts beyond merely the fact of blood-alcohol dissipation.

In petitioning for certiorari, the state argued that the Missouri Supreme Court misinterpreted the Schmerber Court's concern with "stringent[ly] limiting" bodily intrusions. Whereas the Missouri Supreme Court found that this concern requires more exigent circumstances than mere blood-alcohol dissipation, the state argued that the Schmerber Court was concerned not with the blood test itself but the nature of the bodily intrusion. The state conceded that more invasive procedures or rudimentary procedures performed "by other than medical personnel or in other than a medical environment" would be impermissible. It contended, however, that a "simple blood test" is "safe, painless and commonplace."

The US Supreme Court granted certiorari on September 25. The Court will have the opportunity to revisit Schmerber and clarify the reach of its holding, which has clearly caused much grief in the state and federal courts below. Is the case broad enough to allow warrantless blood draws based on the singular circumstance that blood-alcohol levels deteriorate quickly over time? Does the case require officers to be faced with exigent circumstances above and beyond this physiological fact? Is the relatively minimally intrusive nature of a blood test relevant to the Fourth Amendment inquiry? The Schmerber Court explicitly limited its holding to its facts. Other courts have totally ignored the Court's attempt at modesty and have tried to glean a useful rule from those facts.

Search-and-seizure cases typically imply balancing state interests versus individual privacy interests. McNeely and similar cases are difficult for this very reason: states need this evidence to keep drunken idiots off public highways, but sucking out someone's blood is more invasive than a mere breathalyzer. What is a court to do?

The US Supreme Court should ply the middle way by allowing nonconsensual, warrantless blood draws under the Wisconsin Supreme Court's analysis in State v. Bohling, which requires that:

  1. The blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk driving related violation or crime;
  2. There is a clear indication that the blood draw will produce evidence of intoxication;
  3. The method used to take the blood sample is reasonable and performed in a reasonable manner; and
  4. The arrestee presents no reasonable objection to the blood draw.
Factor three of the Bohling test accommodates the concern that a blood draw should be performed in a safe environment by licensed professionals. Further, the Bohling analysis might help assuage the McNeely defendant's fear that blood draws might not lead to the discovery of probative evidence of intoxication. Factor two of the Bohling test requires a clear indication that the blood test will produce evidence of intoxication. Finally, because the test allows warrantless blood draws under certain circumstances, it furthers the significant state interest in protecting the public from drunk drivers and the reduced privacy interest drivers implicitly accept when operating motor vehicles, which, as Bohling noted, "constitutes a serious risk to public safety."

These factors, applied to McNeely, indicate that the Court should overturn the Missouri Supreme Court and allow the admission of the defendant's blood test. First, the blood draw occurred after the defendant was already under arrest for drunk driving. Second, it is likely that the arresting officer had a clear indication that the defendant was intoxicated after performing field sobriety tests. Thus, the arresting officer could clearly conclude that a blood test would reveal evidence of intoxication. Third, the blood draw was taken at a local hospital by medical personnel.

The fourth factor may cause some concern, because the McNeely defendant refused the blood draw. However, two arguments diminish the importance of this factor. First, the Bohling court specifically considered nonconsensual blood draws. A simple refusal to submit to the test, then, cannot logically constitute a reasonable objection. Furthermore, the court seemingly abandoned that requirement later in its opinion when it stated:

[T]he dissipation of alcohol from a person's bloodstream constitutes a sufficient exigency to justify a warrantless blood draw under the following circumstances:
  1. [T]he blood draw is taken at the direction of a law enforcement officer from a person lawfully arrested for a drunk-driving related violation or crime, and
  2. [T]here is a clear indication that the blood draw will produce evidence of intoxication.
This statement of the test does not include any consideration of an arrestee's objections. Under Bohling then, the McNeely decision should be overturned and the blood-test evidence admitted. The US Supreme Court has a critical opportunity in McNeely to resolve a vexing issue that has divided state and federal courts nationwide. The ever-growing availability of blood-alcohol testing by blood draw further increases the need for clear guidance in ruling on future Fourth Amendment objections. The rule adopted by some courts that blood-alcohol dissipation is — per se — a sufficient exigent circumstance justifying a warrantless blood draw is too broad. In effect, it would allow a blood test in any and all alcohol-related arrests. The Missouri Supreme Court's ruling, by contrast, gives short shrift to the importance of blood-alcohol evidence in driving while intoxicated cases. By adopting the Bohling test, the Supreme Court can promulgate a rule that reasonably accommodates both state interests in deterring drunk driving and individuals' interests in preventing unreasonable, nonconsensual bodily intrusions.

Christopher Bader concentrates his studies in intellectual property and is an editor for the St. Louis University Law Journal.

Suggested citation: Christopher Bader, Can the Government Bleed You Dry? The Fourth Amendment Says Maybe, JURIST - Dateline, Oct. 31, 2012, http://jurist.org/dateline/2012/10/christopher-bader-fourth-amendment.



This article was prepared for publication by Leigh Argentieri, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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