Warrantless Blood Tests Raise Questions About Other DUI Policies

By Kelsey Bleiweiss, THELAW.TV

Several weeks ago the Supreme Court of the United States heard oral arguments for Missouri v. McNeely, a case challenging police use of warrantless, non-consensual blood tests after suspected drunk drivers refuse to submit to a breath test.

The State of Missouri argues that because alcohol dissipates in the blood over time (thereby destroying evidence of a crime), suspicion of drunk driving presents an “exigent circumstances” exception to the warrant requirement of the Fourth Amendment, which protects individuals from unreasonable searches and seizures. Because, as the State argues, obtaining a warrant can take some time, results from a blood test could fail to reflect the actual level of impairment when the driver was on the road. To avoid this loss of evidence, police should be able to test the blood of a suspected drunk driver without a warrant.

McNeely’s advocates disagree, arguing that the dissipation of alcohol in the bloodstream does not qualify as an exigent circumstance and so the Fourth Amendment prevents a police officer from taking blood from a suspect without a warrant. McNeely’s attorneys and supporters also argue that due to technological developments, obtaining a warrant does not take as long as it used to. In many states police officers can get a warrant approved by a judge or magistrate over the phone or even through a text message.

Though the question of Fourth Amendment violations is the central question the Court faces, the case involves other DUI/DWI policies and practices, many of which are unknown to most drivers.

Police continue to question a suspected driver after he or she refuses a breath test because of implied consent laws, which are on the books in all fifty states. The states imply that when an individual gets a driver’s license he or she will consent to a blood alcohol level test if he or she is suspected of drunk driving. The test required by these laws is typically a breath test or a field sobriety test rather than a blood test, which is considered much more invasive than the other tests.

These laws also describe penalties for refusing to take the first test, including automatic license suspension. But more importantly, the laws allow police officers to use the driver’s refusal as evidence against him or her in trial.

These laws can have serious consequences for those suspected of drunk driving. Most states depend on Breathalyzer devices to collect the evidence that leads to those consequences, but these devices are not free from error.

On December 31, 2012, Judge Lawrence F. Clark Jr. of Dauphin County, Pennsylvania released an opinion concluding that results obtained from the Intoxilyzer 5000EN – a device frequently used by law enforcement – cannot be considered accurate above a 0.15% reading. The accuracy of breath tests have major ramifications in states like Pennsylvania, which imposes a stricter penalty on drivers with particularly blood alcohol levels above 0.15%. And in 2011 the Philadelphia Police Department discovered that five out of their eight machines were not calibrated correctly, producing inaccurate results that affected over 1,000 cases in the span of a year.

Though breath tests are far from perfect, they are generally preferred over blood tests by civil rights advocates. Police officers do not yet have the universal authority to draw blood from a suspected drunk driver without a warrant. But the “exigent circumstances” exception to the warrant requirement is an unclear standard. The result is many police officers, like the one involved in McNeely’s case, taking suspected drivers for blood tests without obtaining warrants first.

John Collins, a former police officer and current defense attorney in Little Rock, Arkansas, believes that even with a warrant blood tests are too intrusive: “If there is probable cause to justify a warrant for blood, then that means [police officers] have got evidence other than the person’s blood.” According to Collins, that other evidence should be sufficient to prosecute a case without the invasive process of drawing blood.

Legislators and law enforcement officials seem unlikely to eliminate blood tests altogether, but as the Supreme Court weighs the legality of conducting blood tests without warrants, many civil rights advocates fear a slippery slope. Some states already have laws mandating blood tests without warrants, consent, or probable cause in car accidents that involve a death. This can lead to positive results for alcohol or drug use, which, particularly in the case of drugs, might not reflect actual impairment.

Such a law exists in Arkansas, and Collins provided an example of a driver getting dental work the day before an accident and testing positive for drug use due to the medication used by the dentist. Though the driver may not have been impaired when the accident occurred, he or she will have a difficult (and costly) time proving it in court. These sorts of problems could increase in frequency if the Court allowed police officers to conduct blood tests without warrants in all cases of suspected drunk driving.

But regardless of the outcome of the Supreme Court case, drivers should be aware of the laws in their states. Furthermore, Collins recommends that if a driver consents to a test (breath or blood), he or she should always request a second test and a verification of the results.



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