High court wary of DUI blood tests

January 10, 2013

WASHINGTON — The Supreme Court appeared reluctant Wednesday to allow police to routinely order blood tests for unwilling drunken-driving suspects without at least trying to obtain a search warrant from a judge.

The court heard arguments Wednesday in a case about a disputed blood test from Missouri, against the backdrop of a serious national problem of more than 10,000 deaths from crashes involving alcohol-impaired drivers in 2010, about one every 51 minutes.

That number has dropped by 60 percent in the past 20 years because of a sustained national crackdown on drunken driving. Lawyers for Missouri and the Obama administration argued that dispensing with a warrant requirement would further that effort because any delay in testing a suspect's blood-alcohol content allows alcohol to dissipate in the blood.

Here, police are facing the certain destruction of blood-alcohol evidence, Justice Department lawyer Nicole Saharsky said.

But justices across the ideological spectrum questioned whether the intrusive procedure of sticking a needle in someone's arm to draw blood should routinely be done without the approval of a judge. At the same time, they made clear that they did not want to unduly delay the collection of blood samples.

Justice Antonin Scalia asked, Why shouldn't that determination be made case by case? ... And if it would have taken too long, then it's OK without a warrant. If it wouldn't have taken that long, it's bad.

Wednesday's case stemmed from the arrest of Tyler McNeely in Missouri. Police stopped his swerving car and his blood was drawn without a warrant while he was handcuffed. He had refused a breath test and failed several field sobriety tests.

He had two prior DUI convictions.

But the Missouri Supreme Court upheld a lower court order that threw out the results of the blood test. The state high court said the blood test violated the Constitution's prohibition against unreasonable searches and seizures.

About half the states already prohibit warrantless blood tests in all or most suspected drunken-driving cases.

As they tried to figure out how to draw a line between what is reasonable and what is not, several justices asked about other tests for measuring alcohol content, including the familiar breath analysis test and urine samples.

All 50 states have implied-consent laws that require drivers who are arrested on suspicion of DUI to consent to a blood alcohol test. Refusal to do so generally leads to suspension of a driver license. In addition, prosecutors can use the refusal against a defendant at trial.

McNeely may have had more reason than most to object to taking the test. Assistant county prosecutor John Koester said McNeely faced a felony charge with a maximum prison term of four years because of his two prior convictions.

A decision is expected by summer.