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Let's say the police pulls someone over; they suspect drunken driving. Do they have to get a warrant before they can order a blood test? The U.S. Supreme Court heard arguments on that question today. The court has long held that, except in emergency situations, warrants are required when government officials order bodily intrusions like a blood draw. But in today's case, the state of Missouri contends that warrants should not be required when it comes to a blood test for suspected drunk driver. Here's NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Tyler McNeely was stopped in the predawn hours for speeding. He failed four field sobriety tests and refused to take a breathalyzer test or a blood test. At that point, highway patrolman Mark Winder took him to a nearby hospital, and without getting a warrant, ordered hospital technicians to draw blood from the handcuffed suspect. The Missouri Supreme Court unanimously threw out the blood test, noting that patrolman Winder had previously had no difficulty obtaining a warrant, and that there were no circumstances here that would have prevented getting one quickly.
The State of Missouri appealed to the U.S. Supreme Court, asking the justices to create a new exception to the warrant requirement, a rule declaring that no warrant is required for a blood draw in drunk driving cases because alcohol dissipates in the blood over time. Prosecutor John Koester.
JOHN KOESTER: When we know for certain that important, reliable and probative evidence is in the process of being destroyed, a search warrant is not necessary.
TOTENBERG: But ACLU lawyer Steven Shapiro representing McNeely disagrees.
STEVEN SHAPIRO: Before the government can conduct a search, and especially a search as intrusive as a search that involves putting a needle in your arm, that decision ought to be reviewed and approved by a judge.
TOTENBERG: Inside the courtroom, the justices gave both sides a hard time but seemed more skeptical of the prosecution's demand for eliminating the warrant requirement altogether. Justice Sotomayor: I we rule in your favor, the court will be saying there's no warrant requirement for the most intrusive way to prove a case. Justice Scalia: Why don't you force him to take the breathalyzer test instead of forcing him to have a needle shoved in his arm?
Prosecutor Koester replied: That would be difficult. It's like putting a balloon in front of a person. You can put his mouth on it, but you can't force him to blow it up. Justice Kennedy, noting that 25 states have passed laws requiring a warrant, asked if the conviction rate is lower in states with a warrant requirement. Answer: No.
Justice Breyer: Why should it take a long time to get a warrant since the officer can call a magistrate and simply state what the facts are, which should only take a few minutes? Chief Justice Roberts interjected: In some cases, I suppose, the judges actually want to read the affidavit and give it some thought. Representing the federal government, Assistant Solicitor General Nicole Saharsky told the justices no warrant should be required because every minute counts.
To that, Justice Scalia replied: But once we say that you don't need a warrant, the game's up. Justice Ginsburg: A number of jurisdictions do this in a half hour. Why not initiate the process while you're going to the hospital and when a half hour is up, you can proceed. But at least there's been an effort to get a warrant.
Lawyer Saharsky said the suspect's repeated refusals may simply be aimed at delaying the whole process so his blood alcohol level goes down. Justice Kagan, puckishly: Or maybe he's drunk. On a more serious note, Kagan observed that if the whole idea is to get evidence as quickly as possible, why wouldn't the police not only forego a warrant but do the blood draw themselves at roadside?
Next up was the ACLU's Shapiro making his argument in favor of a warrant requirement. Justice Scalia: Is this a lot of sound and fury signifying nothing? What advantage would your client really get other than possibly delaying the test? Are any of these warrants ever turned down?
Shapiro conceded they rarely, if ever, are, but he added the court's whole Fourth Amendment jurisprudence is based on having a neutral magistrate review the evidence before the state does something as intrusive as putting a needle in somebody's arm. Justice Alito: What if the state has a form that just requires the policeman to check boxes? What kind of protection does that offer?
Answer: Missouri has standard forms for a warrant. But what that shows is that the process for obtaining a warrant is not very elaborate and can be quickly complied with. Perhaps the most uncomfortable moment for Shapiro came when Chief Justice Roberts asked whether police should also get a warrant for a breathalyzer test, something no state does. Yes, replied Shapiro. I think you probably do need a warrant, though a breathalyzer test is certainly less intrusive.
Justice Scalia, raising an eyebrow: I don't know why you want to bite off more than you can chew. What's reasonable for sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon. Nina Totenberg, NPR News, Washington.