"nonconsensual warrantless blood draw"

by Ugh

This week SCOTUS decided MISSOURI v. MCNEELY, opinion available here, essentially saying that the "natural dissipation of blood-alcohol" did not, on its own, constitute an exigent circumstance, one of the current exceptions to the warrant requirement of the 4th Amendment.  Hence, the ensuing blood test showing that McNeely was clearly above the legal limit could not be used as evidence to convict him of DUI as the police did not obtain a warrant.  

Without unpacking all of the Constitutional issues in that paragraph, I wanted to focus on how Justice Sotomayor, who wrote the (somewhat splintered) majority opinion, characterized the search.  In particular, as noted in the post title, as a "nonconsensual warrantless blood draw" - see page 4 of the linked opinion, page 8 of the pdf.  

This turn of phrase disturbed me, I think because its use seemed so casual, in an "Oh yeah, send her to the nonconsensual warrantless blood draw room" sort of way.  I think SCOTUS reached the right result in at least this case while leaving the door open to reaching a different result elsewhere, but fundamentally, should such a thing be okay even with a warrant?  

That is, doesn't strapping someone down and extracting blood also implicate 5th, 8th, and 14th Amendment concerns, at least the pre-conviction context?  And yet the court, other than a single citation to a 5th Amendment case, barely even addresses these issues (this may be the fault of the parties to the case, of course).  If a bone-marrow sample were required, would that be okay, even with a warrant?  An ova or sperm sample?  Heart tissue? One of the two kidneys?  

It seems to me that perhaps SCOTUS is missing the point, in this and other areas of Constitutional law, and has adopted a very narrow "purposive" view of the individual rights amendments and very few who argue in front of them are willing to advocate for a revisiting.  That's a bit of a ramble but it was bothering me.  

Comments

[sapient]

I don't really have time right now to say all that I have to say about the drunk driving laws, and the particular opinion strikes me as something that rewards drivers who know to refuse the breathalyzer.

In any case, people who become shit-faced and cause accidents are a menace, obviously.

But short of that, the laws are totally misguided in that they don't punish behavior; rather, they punish medical condition. Say, for example, someone is a lightweight person who can't drink more than 2 drinks before being "over the limit". Why should one person have a different behavioral standard than someone who is bulky and can drink a bottle of wine? No one really knows, when getting into the car, what their bac is (unless they have a bac measuring device, which can't be legally calibrated). The penal law should be based on behavior, not medical condition.

The result, of course, is that women who are accompanied by strong, handsome, bulky drivers aren't penalized, but women driving by themselves are. (And, of course, slight men, but there is definitely a gender component to all of this.)

I don't really have a "legal" problem with banning any drinking before driving, and testing BAC for zero tolerance. (I have a practical problem with that, of course, and so do governments, since all of the restaurants would go out of business.)

Of course, the smart, practical solution would be to provide alternative transportation to people going to restaurants and bars. But why waste money on practical solutions when we can stigmatize and cast blame and aspersions?

[Hartmut]

A zero level rule would unfortunately be unpractical since even fresh fruit juice (not to speak of not 100% fresh) gives enough of a shift to have the devices detect the presence of ethanol. The former GDR had a 0% rule that could be used as a nice way to stop anyone 'with cause'. The current German rules afaik have a sliding scale that considers both the bac and the behaviour, so - within limits - alcohol tolerance (or lack thereof) is part of the equation.

[sapient]

I agree, Hartmut, that a zero level rule wouldn't work. I don't agree with a bac. I think criminal law needs to be based on an objective behavioral standard. At the very least, it needs to not be based on a guessing game. There's always a "reason" here why people are stopped - speeding or whatever. But then it's a matter of bac for the most part, and I object to that.

If everyone were allowed 2 glasses of wine, for example, or 2 drinks. Then everyone would have an objective standard of behavior. (Or one. Whatever.)

[Turbulence]

If everyone were allowed 2 glasses of wine, for example, or 2 drinks.

But 2 glasses of wine corresponds to different degrees of impairment. For a 120 pound man who rarely drinks, 2 glasses of wine might mean completely impaired whereas for a 250 pound daily drinker, 2 glasses of wine might not even be noticable. The whole point of BAC is that it correlates with degree of cognitive impairment.

Now, if you think that correlation is poor, I'm willing to consider the evidence. Which peer reviewed study published in a reputable journal can you point to that indicates that BAC correlates poorly with cognitive impairment?

I find it really bizarre that you think that lighter people getting more of a buzz from one drink is unfair. I mean, isn't it unfair in the other direction? A heavier person has to spend a lot more money to get the same effect as a lighter person. If anyone here is very light and wants to know what drinking is like for heavier people, I have the solution for you: go to the bartender and ask them to waterdown all your drinks. Now you know what drinking is like for heavy people!

[sapient]

Turbulence, it's a matter of the person's ability to measure. Sure, everyone thinks that maybe his bac might maybe be something: but is that a criminal standard?

As I said, the safest thing to do would be: you can have one drink, or you can have 12 oz of beer, or whatever. It's not fair for people to have to make a medical evaluation of themselves every time they drink. Because, in every case, they're making a guess. No?

Sure, I (or you) weigh 125 pounds and, if you had whatever food, could drink this or that, and not very much, so don't drink whatever. And you (or I) weigh 195, and if I had whatever food, could drink this or that, and a little more, and maybe less, so drink a couple or not.

That's not a recipe for criminal sanctions.

[sapient]

Oh, and by the way, when the 195 pound people are drinking with the 125 pound people, the server is likely to be pouring wine in all of their glasses, not discriminating based on weight.

So sure, bac is very scientific, but practically, women are saying - oh no! Not me! I'm too dainty to drink anything! And still they're nailed, because they didn't stop early enough.

Socially, it doesn't work well or equitably for people who drink.

[sapient]

by the way, I'd be fine with every single car being equipped with bac ignition device. That way, people would know.

[Turbulence]

sapient, I don't understand the difficulty. In high school we reviewed the state driver's handbook which has a BAC chart much like this. That chart allows you to see how many drinks will roughly correspond to the legal limit for different bodyweights. And everyone who drinks knows that how much of a buzz they get depends on whether they're drinking on an empty stomach, how long a period they're drinking over, how much water they're drinking, etc. It really isn't rocket science.

The bottom line is that unless you're absolutely confident that you're not impaired, you should not drive a car.

Do you understand that the relationship between bodyweight and alcohol impairment is physiological? Or do you think it is something totally arbitrary that state governments made up? I mean, do you believe that people with different bodyweights but the same BAC show roughly the same degree of cognitive impairment?

[Turbulence]

Oh, and by the way, when the 195 pound people are drinking with the 125 pound people, the server is likely to be pouring wine in all of their glasses, not discriminating based on weight.

Every single person is responsible for their drinking. Not the server. Not the bartender. If you are not capable of controlling how much alcohol you drink, then you have no business driving a motor vehicle. Period.

Frankly, I think anyone who is incapable of telling a server, "no thanks, that's enough" really needs to see a mental health professional, because if you can't do that, I can't imagine how you can function in life without endangering yourself and others.

[sapient]

I agree with you, Turbulence, that there is an objective medical standard for inebriation. I don't agree that, in a social situation, that ideal can easily be met. I also don't agree that people out to dinner, drinking wine, are in it for the "buzz". People are enjoying the experience of dinner.

The way it usually works is this: a table of four (or say six) orders dinner and a bottle of wine. Wine comes as a before dinner drink and everyone has a glass. Food starts coming, and people eat and drink. Meanwhile, the server is topping off glasses. No one really measures the amount of ounces in every glass. They're just eating and drinking and talking and whatever.

Nobody leaves falling on their face. People are pleasantly buzzed, some more than others. Life is good.

Someone exceeds the speed limit on the way home. That person is a heavy weight - no problem. That person is a lightweight - off to jail.

Sorry - you think that's fair. I don't.

The better solution is that people who are "over the limit" can't start a car. Or that people can get alternative transportation home no matter what. Or that people can get punished for causing accidents. Or that people can have an objective number of drinks.

People shouldn't be forced to guess at their weight, the time they've spent drinking, the amount of food they've eaten, and whether they remember what those charts said in high school.

If you don't drink much Turb, good for you. If drinking is something that you do, or your friends do, you should think of a practical solution for this. "Knowing your limit" is silly because drinking wine with dinner isn't just about getting a buzz or not.

[sapient]

I think there is a cultural difference between you and me, Turbulence. I'm willing to believe that your cultural angle is safer than mine, but not better.

There are a whole lot of people who wouldn't deny themselves dessert, or whatever. Meals are cultural rituals, and failure to deny oneself what seems culturally appropriate isn't a mental illness.

On the other hand, since you're Egyptian in heritage (am I misremembering?), your attitudes about alcohol might be different from people whose heritage is European/Mediterranean.

[Turbulence]

I was born and raised in the US in a christian household where the wine flowed freely at dinner. I think my perspective is informed by knowing what happens when people drive drunk. They kill people.

My spouse and friends think the same way; this might be a generational thing for people who came of age after MADD.

[sapient]

Possibly, Turbulence. It may be generational. Your perspective is definitely reflected in the status quo, so I doubt that there will be any change to my point of view.

Call yourself a Conservative here. Cheers.

[sapient]

Also, "what happens when people drive drunk. They kill people." Some of them do, of course. Not diminishing the possibility of risk there. People who read while driving sometimes have accidents. People who text while driving sometimes have accidents. People who apply makeup while driving sometimes have accidents. People who eat Whoppers while driving sometimes have accidents. People who have screaming infants in the car sometimes have accidents. People who are tired sometimes have accidents.

Lots of accidents happen. I'm not saying that people who are crazy drunk should be driving, but people who are slightly inebriated aren't the cause of most accidents.

[Laura Koerbeer]

Ugh is concerned, I believe, about the invasiveness of blood draws, even with a warrant.

I remember reading somewhere that when the technology for finger printing first became available there was resistance to it on the grounds that it was too invasive, somehow inherently wrong, like a violation of one's personal...I think integrity is the word I want, but not integrity in the sense of ethical, intellectually honest behavior. Integrity in sense of well, a violation of the essences of one's selfhood as an independent human being.

Like a defect could violate the integrity of a structure.

But frogs in water that gets hotter and hotter...we are all so used to having our personal integrity violated that nonconsensual blood draws don't seem like that big a deal.

But I'm with Ugh. It ought to be a big deal. Along with eyeball scans and hair samples and satillites that can photograph us from outer space...

[wj]

The problem I have with DUI laws is that they seem to miss the point. Which, it seems to me, is that you should not drive badly. If you are weaving all over the road, I don't care whether it is because you are drunk, or high, or sleep deprived, or texting, or just incompetent. All that matters, ALL that matters, is how you are driving.

That said, there is some use in people having a rule of thumb to judge when they (or their friends) might find their driving to be impaired. And it would be useful to have ways to mesure alcohol (or TCH) levels, so someone could check. Or even have an option for your car so it wouldn't start if you "failed" a breath-a-lyzer test. But by the time the police pull you over, either you were driving erratically, or you were not. And *why* you were driving erratically should be irrelevant to the ticket you get.

Think of it this way: if you are driving erratically, should you be arrested if there is one reason for that, and have nothing happen if there is a different reason? Because that is what the DUI laws currently suggest.

[Turbulence]

People who haven't drunk but are driving erratically will get pulled over and will likely get a citation for erratic driving.

At the same time, people with high BAC levels may not be driving erratically but can still have significant cognitive impairment. Not all impairment results in erratic driving; they may simply have have greatly expanded reflex times. So, for example, when a child runs in front of their car they won't be able to stop in time even though they'd have no difficulty doing so if unimpaired.

I think Ugh raised a lot of good points but this whole notion that's sprung up in the comments that BAC is somehow unfair or unobjective just strikes me as incredibly bizarre and confusing.

[sapient]

I'm not arguing that high BAC levels don't cause cognitive impairment. I'm not arguing in favor of drunk driving.

What I'm saying is that no one knows their BAC level at any given time unless they measure it with a device. Even then, it will change over time - people have a higher BAC about an hour after they've imbibed than right afterwards. They have a lower BAC about 2 hours afterwards, etc. Sometimes, after a night of heavy drinking, people wake up with a higher than legal-to-drive BAC level, and really aren't aware of that fact.

Many people, in good faith, get behind the wheel, believing that they are not "over the limit" because they've waited awhile, or whatever. To criminalize their behavior based on their medical condition is silly: wouldn't it be much better to say you can't get behind the wheel if you've had more than 1 ounce of alcohol in the previous eight hours? No guessing games there. Everyone is treated the same. Everyone can have dinner together and tell the waiter to quit pouring drinks for drivers after the first one poured.

[Hartmut]

Where I live a lot of things that impair the ability to drive safely (like using a cellphone while driving*) are outright banned and imo rightfully so**. As far as 'know your limit' goes, studies over here have shown that even small amounts of alcohol affect the ability to judge one's own ability. Studies were conducted in a way that people got varying doses of alcohol (iirc not being told the amount) and then asked to judge their own ability to drive. Then they would do a test drive and get asked again afterwards. The disturbing results were that even very experienced test subjects tended to be totaly wrong on both counts and, worse, overestimated their own performance in the test drive in proportion to the alcohol intake. Additionally it tunred out that even those that still seemed normal/sober before getting into the car showed significant impairment while driving, so even external judgement ('is this person still able to drive safely?') tended to be off when done without a scientific check (breath or blood alcohol measurement). the general conclusion should be: one drink and you're out, i.e. you should take a taxi/public transport, let someone drive that did not have a drink or find another way home.

Funny case that happened over here when snow still happened: A totally drunk person climbed into his car and tried to drive away but he did not even get out of the parking spot because of the snow. Before he ran out of gas the police noticed and arrested him for an obvious DUI attempt. But the case got thrown out by the court because the drunk man did not endanger anyone due to being stuck from the start.

*due to too many violations the rule is now so strict that the engine has to be off. Even standing with the motor running is driving as far as phone use is concerned.
**and there is some truly bizarre stuff some people do while driving, from clipping their toenails to about everything that can be found in the kamasutra

[Donald Johnson]

"wouldn't it be much better to say you can't get behind the wheel if you've had more than 1 ounce of alcohol in the previous eight hours? "

No. How would you test that? You could have a rule of thumb--if you drink more than X, you shouldn't drive for Y hours. But X and Y will depend on the individual. That's not unfair--that's just biology. I'm not a 125 lb woman, but I suspect my impairment would come fairly soon, since I get sleepy after a couple of glasses of wine. So I never drink if I know I'm going to be driving. What's the big deal here?

I'm with Turb here and with Ugh. There's a problem with excessive state intrusion, and I don't know what to say about that, but I don't have a problem criminalizing driving while having a BAC that is too high, unless someone establishes that BAC isn't the proper way to measure cognitive impairment.

[Turbulence]

As far as 'know your limit' goes, studies over here have shown that even small amounts of alcohol affect the ability to judge one's own ability.

Sure, but in the real world, grown ups make plans. Every time my spouse and I go to an event with booze, we have a conversation that goes like this: "do you want to drive back or should I? you do it, I'm tired. OK, that means I can get one drink and I won't start until after we start eating. Sure, but if we end up staying for the movie you can have two since that means we'll be there for 3+ hours". Sometimes, we decide that we're just going to take a cab or public transit specifically so that we can both drink without having to worry.

Adults plan. No adult has to judge their sobriety based on internal sensations alone: they can count how many drinks they've had. If you don't know exactly how many drinks you've had, you're not fit to drive. And if you do know, then looking at a BAC chart plus some common sense rules will tell you whether you're safe to drive with very high accuracy.

Is it theoretically possible that someone counts their drinks, follows the rules and uses a chart and thinks they're safe to drive when they're not? Sure. Of course it happens. But in the vast majority of DUI cases, people just don't care. They're negligent: they put their own pleasure and convenience ahead of their responsibility not to mow down their fellow citizens.

[Hartmut]

What about having all establishments serving alochol getting a breathalyzer or other non-invasive device together with their licence? Then any guest could ask for a quick check before leaving just to be sure. A 'clean' receipt could serve as exculpatory evidence should the question of DUI arise (in connection with a sworn statement that no extra alcohol got consumed afterwards).

[Hartmut]

Turb, I don't see any difference of opinion there. Since self-judgement (and even outside judgement)is extremly error-prone, one should always err on the side of caution.
Which I do: I neither drink nor drive ;-)

[sapient]

But in the vast majority of DUI cases, people just don't care. They're negligent: they put their own pleasure and convenience ahead of their responsibility not to mow down their fellow citizens.

According to what statistical analysis? Also, the vast majority of DUI cases don't involve someone mowing down anyone. They involve someone drinking and driving, and speeding. Or drinking and driving, and having an expired inspection sticker. Or something like that.

Also, many people don't go out as couples, although congratulations that you and your wife always do, and always have a plan. I agree that it's best practice always to have a plan. If the states really cared a lot about the safety issues, they would offer a plan. Instead, they care about arresting people.

I agree, Hartmut, that a breathalyzer check before leaving would be a good idea. Or having ignition devices on all cars. There are a lot of very good ways to solve the problem without criminalizing someone's metabolism.

[russell]

I'm curious about the 5th Amendment issue here. How is being compelled to give a blood sample different than being compelled to give self-incriminating evidence?

[McKinneyTexas]

How is being compelled to give a blood sample different than being compelled to give self-incriminating evidence?

In the same way that being finger printed, photographed, giving a DNA sample or put in a line up is not compelled self-incrimination.

Suppose the person refusing the blood draw just ran a red light and killed three people? And smells of alcohol, but can't or won't do a field sobriety test? That person walks because it's wrong to poke him/her with a needle?

More later. This is interesting.

[sapient]

russell, they've always gotten around 5th amendment issues in dui cases by saying that "driving is a privilege, not a right" and if you want to benefit from the privilege of having a driver's license you have to agree to certain terms (like agreeing to have your blood taken).

[sapient]

Here's the web page of a MA lawyer explaining the implied consent law there.

[Hartmut]

I just checked the German situation. A driver can legally refuse the breathalyzer test and in theory a blood test requires the order by a judge with the exception of exigent cirumstances. The blood test does not require consent of the suspect. The question when exactly 'exigent circumstances' apply seems to have spawned a lot of court cases and judicial
analysis. Interestingly special emphasis is put on the possibility of deliberate alcohol consumption after the police control because that can destroy the evidence at the time of the control ('hey, I was sober then and got drunk only afterwards').
I also leaned that the rues have changed in 2007. Now up to 21 years of age and 2 years after first getting one's driving licence there is 0%, also for drivers that professionally transport people or hazardous goods. For everyone else the lower limit is 0.03%. Above that there are several brackets that, depending on bac and driving behaviour, go from misdemeanor to felony. Above 0.11% even non-erratic driving is a felony.

[russell]

thanks McK and sapient, all good information.

[Old Soldier]

A woman here in Alabama was so drunk, she was on the wrong side of the interstate. She went head on into a car being driven by a classmate of my daughter. She was taken to the hospital but while they were getting a warrant she escaped the hospital. She couldn't be charged with the more serious crime (it would have been her3rd DUI). The classmate is dead at 20. DUI needs some serious jail time and a way to be policed. Your right to drink doesn't trump my right to life. ( BTW as of last month my I have hung up my guns for good-America you are on your own)

[liberal japonicus]

Here in Japan, drunk driving is really punished. Some folks point out that there are still drunk driving incidents, but if you get caught, you can get up to 5 years in prison. Also most likely, your employer will fire you, especially if you work in education and the limit is technically 0.15, which puts the majority over with one drink. If someone is killed, you'd get up to 20 years in prison.

There was a recent revision in the law that also included penalties for people who are passengers who ask people who are drunk to drive for them as well as increasing the penalties for those who provide alcohol and then let people drive, though there have only been a few cases prosecuted. The revision also underlined and extended the penalties to people riding bicycles.

I think that the Japanese system gets around the testing in an interesting way, drunk driving is shukiobi unten, but there is a lower category that is decided entirely at police discretion (sakeyoi unten) If it was something other than alcohol, you would be eager to prove that it wasn't, if you had alcohol, you probably wouldn't, so the lower infraction would be a relief. Of course, Japanese policing is quite different from the US, so I'm not recommending this. You also have, like most other countries, a national system of laws rather than the multiple jurisdictions and laws that you have in the US.

I'd also observe that the more strict approach in Japan (though marred by the Japanese tendency to let things slide until something horrific happens and then clamp down for a while) is really made possible because of the relative abundance of public transport and the infrastructure of taxi services and I wonder if that is something that figures in the situation in Germany.

[Laura Koerbeer]

The problem with draconian penalties is that there will be a tendency to let things slide--who wants some guy to have his whole life go up in flames for one beer, if there is no harm done to anyone, no horrifying accident?

That's why it is better to have small penalties, strictly and consistantly enforced, for relatively minor infractions than big infrequent and unpredictable ones. This is something that every school teacher knows. Fear of getting caught is a better inhibator of behavior than fear of a big punishment that probably won't happen. People play the odds.

[Laura Koerbeer]

Which doesn't mean I support minimal responses to DUIs. I think that people who drink and drive should lose their licenses for a good long time on the first offense, whether they cause an accident or not.

[Hartmut]

A very common occurence is youngsters getting drunk at the disco, esp. in rural areas, and not leaving before the last bus has already left. So cars are the only option that often ends in the ditch (if lucky) or against a tree (if not). So, the youngsters tend to harm far more often themselves than others. In the big cities public transport in most areas is round the clock (buses taking over from the subway during the night shutdown).

[sapient]

Laura, your two comments put together don't jibe. Just saying.

There are a whole lot of people driving "over-the-limit" on the roads who never get caught because they drive pretty well, even though they've had some drinks. There are some who get caught because they are sloppy drivers who speed, or whatever - things they would normally do - but happen to get caught when they are over-the-limit, so get nailed for both things. There are some people who drive when they are horribly drunk (many of them kids or alcoholics) who cause amazing damage.

This isn't to say that the mildly inebriated wouldn't drive much better if absolutely sober. Just as the kind-o'-sleepy wouldn't drive much better if driving when wide awake. Just as the very worried about something else wouldn't drive better if paying attention to matters at hand.

Sure, let's take everyone's license away!!!! Let's close the bars while we're at it! And forbid the restaurants from serving wine! Turb lives in a place where he can apparently walk 3 blocks to fabulous restaurants - we should all do that! But if we can't, we should all be rich enough to hire drivers!

Actually, wait a second, I got it - we can have reliable public transportation, even in rural areas. What - socialism?

[ral]

Self-driving cars, sapient, self-driving cars.

Here's Mark Kleiman on consistent enforcement and small penalties (he's in favor).

[hairshirthedonist]

Not on topic, but I can't wait to see how self-driving cars work out, if at all, over the next couple of decades. I imagine that, despite whatever statistical improvement in safety their use could be demonstrated to provide, there will be resistance, based on whatever accidents might occur as the result of malfunctions or mistakes in implementation. It should be interesting.

[sapient]

Self-driving cars would solve a lot of problems for a lot of people. Thanks for the Mark Kleiman link, ral.

[Ugh]

Potential 5th Amendment concerns include the aforementioned compelled to be a witness against himself point. Also deprivation of liberty/property without due process.

8th amendment is of course cruel & unusual punishment - could we sentence someone to have blood drawn on a daily basis? Or to give blood every two months? Donate a kidney?

14th Amendment concerns echo the 5th (and I had something else in mind but don't recall it off the top of my head).

McKinney notes: being finger printed, photographed, giving a DNA sample or put in a line up is not compelled self-incrimination.

That's correct, I believe, under current Constitutional jurisprudence. But I'm questioning the jurisprudence. What other kind of evidence was available to courts in the 18th Century besides oral testimony? Seals, I suppose, handwriting, what else?

If you're an originalist/textualist, you could argue that "witness" means literally that - testifying orally against oneself. But if that was the only/primary kind of evidence available to convict a person at the time, then I think an equally originalist/textualist argument could be made that the 5th amendment means no evidence could be compelled to be given by the accused, whether it be testimony, fingerprints, DNA samples, etc.

McKinney's example of being put in a lineup is a good case of coming close to the line, but I'd say it's compelled.

[Gordon Danning]

This largely answers the 5th and 14th amendment questions: http://www.avvo.com/legal-guides/ugc/schmerber-v-california-384-us-757-1966