[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in Missouri v. McNeely [transcript, PDF; JURIST report] on whether the Fourth Amendment [text] allows a police officer to take a warrantless blood sample to test for alcohol levels. The Missouri Supreme Court ruled [opinion text] that the exigency standard set in Schmerber v. California [opinion text] for warrantless intrusions of the body, “requires more than the mere dissipation of blood-alcohol evidence.” John Koester, appearing on behalf of Missouri, argued that securing evidence quickly was paramount to a drunk driving investigation because alcohol is continuously removed from the blood by the body and thus securing a warrant to obtain a blood sample would be overly burdensome. The court questioned why a blood sample was necessary when a breathalyzer would provide adequate results. Koester argued that the warrantless search was reasonable, but Justice Sonia Sotomayor questioned the reasonableness of the search given how intrusive it was. The justices also pointed out that many jurisdictions have implemented a streamlined process where it only takes officers 15 to 20 minutes to obtain a warrant in drunk driving cases, whereas Koester had stated that in this case it would have taken the officer 90 to 120 minutes to obtain a warrant. Sotomayor suggested that it would be improper for the court to reward police in inefficient jurisdictions when other jurisdictions had demonstrated that they could obtain warrants adequately. Chief Justice John Roberts expressed the court’s reluctance with giving police the ability to obtain blood samples without a warrant: “it’s a pretty scary image of somebody restrained, and … a representative of the State approaching them with a needle.”

The second case heard by the court on Wednesday was Maracich v. Spears [transcript, PDF]. This case raised the question of whether lawyers can use personal information from driver’s licenses to obtain clients and if they can delay a lawsuit until they have obtained these clients. The lawyers in the case used South Carolina’s Freedom of Information Act to obtain driver information from South Carolina’s Department of Motor Vehicles. This aided them in creating a client list to bring several group action suits against car dealerships. The US Court of Appeals for the Fourth Circuit ruled [opinion text] that the lawyers did not violate the Driver’s Privacy Protection Act of 1994 (DPPA) [text]. The DPPA generally prohibits the state department of motor vehicles from distributing drivers’ personal information, but includes several exceptions, including the “solicitation” and “litigation” exceptions. The “solicitation” exception requires the express consent of drivers, whereas the “litigation” exception does not. Joseph Guerra, appearing for the petitioners, argued that the opposing lawyers were undertaking a solicitation of individuals as potential clients for their own commercial purpose and were not using the information in connection with litigation. Guerra further argued that the primary purpose of the DPPA was to prevent such solicitations, thus all of the exceptions must be read in light of that primary purpose. Justice Elena Kagan appeared skeptical of why all 14 exceptions had to be read in light of the exception which was number 12 on the list. Kagan further questioned why the court should not just read the exceptions as individual parts of a list. Guerra argued that soliciting clients to join a class action lawsuit which had already begun was not “in connection with … investigation in anticipation of litigation” because in that case the lawyers are acting for their own commercial benefit, not as officers of the court. Several justices questioned that reasoning and repeatedly asked where the basis in the statute was to distinguish between lawyers as commercial actors and lawyers as officers of the court. Paul Clement, appearing for the respondents, argued that the “litigation” exception was extremely broad, authorizing any use of driver information “covering the litigation process from cradle to grave.” Roberts stated that the “in connection with … litigation” language must have some limit, otherwise everything would be covered. Clement responded that it is clear from the litigation history that Congress intended this provision to be broad and that his clients fell within the unconditional “litigation” exception.