The Supreme Court of the United States will be hearing a very important case in the coming months. The resulting decision will send a very clear message to the people of the United States. This is more than a DUI case. It’s more than a Fourth Amendment case. This decision will affect the direction of the government in all guarantees made by the U.S. Constitution. From the right to bear arms, to the right of free speech; this decision will either embolden government disregard of the Constitution or demand its respect.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This is the Fourth Amendment of the United States Constitution.
Driving under the influence (DUI) cases fall within the first eleven words of the Fourth Amendment. There is a fundamental guarantee of security in one’s body, against searches and seizures by the government. Search and seizure protections include the issue of forcing someone to undergo a blood draw when accused of DUI. Using the color of government authority to forcibly puncture a person’s body and withdraw fluid with a needle is undoubtedly questionable under the Fourth Amendment. At what point have we drawn the line between government overreaching and necessary police investigation of potential criminal acts?
The US Supreme Court spoke these words in 1966: “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” (Schmerber v. California (1966) 384 US 757, at 766.)
In that case, the nation’s highest court went on to cite an earlier opinion from 1948: “The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.”
The 1966 case is a landmark case. Schmerber v. California was a DUI case that made it all the way to the United States Supreme Court. In Schmerber, a California man was involved in a car accident and sustained injuries. He was taken to a hospital for treatment. A police officer arrested him while at the hospital and ordered a physician to forcibly take a blood sample from the man.
As you can read in the text of the Fourth Amendment, the right “shall not be violated” unless there is a finding of probable cause and a warrant is issued. In Schmerber, no warrant was obtained by the officer. He took it upon himself (using the color of authority as a police officer) to order the physician to puncture the man’s artery, withdraw his blood, and then turn that evidence over to the state – immediately.
The Schmerber case was a landmark case because it was the first time the Supreme Court dealt with a Fourth Amendment issue involving “intrusions into the human body.”
The Supreme Court ultimately held that the officer’s decision was not unreasonable under the specific circumstances of that case. While recognizing the “importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great,” the High Court still found it unnecessary for the officer to get a warrant from a magistrate.
Their reasoning was based on an exception to the 4th Amendment requirement for a warrant. The “exigency exception” was created by the Supreme Court prior to Schmerber. This exception allowed the officer to disregard the warrant requirement because he “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’” They went on to equate destruction of evidence with the diminishing nature of the blood alcohol concentration; since the person’s BAC was going down, it was tantamount to evidence being destroyed by the sinister partner-in-crime, his digestive system.
This is where it gets interesting… Since Schmerber, few lawyers have sought to challenge any forced blood tests after DUI arrests. They figured the Supreme Court meant it was reasonable for any police officer to conduct a forced blood test — not violating the Fourth Amendment — so long as it was performed in a reasonable manner, including the use of “accepted medical practices.”
But the lawyers for Tyler McNeely didn’t read the case summary on Schmerber. They read the actual words of the opinion and realized a fundamental truth about the Schmerber case: this is a very narrow holding; it does not apply to all DUI arrests. A couple of passages didn’t escape their scrutiny:
“The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” (citing Preston v. United States, 376 U. S. 364, 367). We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” (Schmerber)
McNeely’s lawyers realized the Schmerber officer was dealing with an emergency situation: a car crash with an injured driver, requiring a trip to a hospital. At the same time, the officers in Schmerber had to investigate the scene of the accident, another time-sensitive situation. These facts, in combination with the diminishing nature of blood alcohol evidence, created a unique situation for the officer to bypass the warrant requirement of the Fourth Amendment.
McNeely’s lawyers also properly absorbed the final paragraph in Schmerber, understanding the major caveat that the Supreme Court was including with this decision:
“We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.”
Those are powerful words:
“We reach this judgment only on the facts of the present record.” (Different facts may change the equation.)
“The integrity of an individual’s person is a cherished value of our society.” (Puncturing blood vessels against someone’s will is certainly worthy of grave consideration.)
“That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” (The officer’s actions in this case are lawful, but it does not allow the same conduct under any other circumstances.)
In McNeely’s case, he was pulled over for speeding. There was no accident. There was no crime scene to investigate. There were no injuries. The driver didn’t require immediate medical attention. He refused to give a breath test, so the arresting officer drove him to a hospital and caused him to undergo — let’s call it what it is — a forcible puncturing of his blood vessels to extract evidence for later prosecution.
The trial court boldly and impressively held that these circumstances did not rise to the emergency presented in Schmerber. They held the forced blood test in McNeely’s case violated the Fourth Amendment warrant requirement. The prosecution appealed, and the case made it to the Supreme Court of Missouri.
Thus, the case of Missouri v. McNeely was born.
The Supreme Court of Missouri agreed with the trial court. They held “officers must reasonably believe that they are confronted with an emergency where the delay in obtaining a warrant would threaten the destruction of evidence.”
The final two paragraphs of the Missouri High Court opinion are better quoted than paraphrased:
“Defendant’s case is unquestionably a routine DWI case. Although his body was working naturally to expunge the alcohol in his system, there were no other “special facts” of exigency in his case. There was no accident to investigate and no injuries to attend to that required the patrolman to expend time, delaying his request of Defendant to submit to blood-alcohol testing.
“The patrolman could not identify any exigent circumstances and made no attempt to obtain a search warrant. The nonconsensual, warrantless blood draw was taken only 25 minutes after Defendant was stopped.
“Time-based considerations similar to those in Schmerber were not present here. There were no “special facts” in this case, other than the natural dissipation of blood-alcohol, that indicated the arresting patrolman was faced with an emergency where the delay in obtaining a warrant would threaten the destruction of evidence. He was not justified, therefore, in failing to seek a warrant before drawing Defendant’s blood over his refusal to consent.
“Defendant’s Fourth Amendment right to be free from unreasonable searches of his person was violated, and the trial court’s judgment sustaining Defendant’s motion to suppress is affirmed. The State may go forward in the prosecution of the DWI charge against Defendant based on evidence gathered in conformity with the Constitution.”
What the Supreme Court of the United States will do to resolve this question will have a significant impact on all Americans. The Fourth Amendment has been subject to erosion for decades. As erosion cannot be seen with the naked eye, the same is true of the Fourth Amendment. If the Supreme Court upholds the Missouri decision, it will send a clear message to law enforcement: play by the rules. We take the Constitution seriously.
If the US Supreme Court overrules the Missouri decision, it will create an automatic exception to the Fourth Amendment (already known as the “DUI Exception” to the Constitution). While many will be happy by this politically correct maneuver, the message to law enforcement will be equally clear: continue the war on Constitutional protections. You’re making progress. Don’t give up now; that annoying little document will soon be a distant memory.
- Matthew Terry, Esq. -