Warrantless blood test for DWI has supporters — and questions

Missouri is seeking a powerful new tool in its war against drunken driving, and it only needs to convince the U.S. Supreme Court that it’s a good idea.

The state — joined by more than 30 others, the Obama administration, Guam and the District of Columbia — recently asked justices to give police officers almost complete discretion in drawing blood samples without a warrant from those suspected of driving while intoxicated.

Usually, those are the drivers who have refused to take a breath test.

Police and prosecutors argue that giving officers more authority would help keep streets safer. But civil libertarians and defense lawyers say that requiring police to get a judge’s approval before drawing blood protects our constitutional right to be free from unreasonable search and seizure.

During recent oral arguments on the question, Chief Justice John Roberts acknowledged that the optics of the issue could make people uneasy.

“One of the things that I think affects the view in this case is a pretty scary image of somebody restrained and a representative of the state approaching them with a needle,” Roberts said.

Experts say that though the topic has been debated for decades, the current case finally could clarify a 1966 Supreme Court ruling that set the framework for how officers legally could get blood samples.

Since then, some states and federal appeals courts have ruled that warrants are required in most circumstances, while others have set conditions where they’re not necessary.

But everybody agrees that a blood sample is the best evidence of intoxication or sobriety.

And authorities, naturally, crave the best evidence.

“I want (drunken drivers) to know that in Platte County, we’re going to do everything we can to get a sample of your blood alcohol content,” said Prosecutor Eric Zahnd. “And if you’re not driving drunk, I want to be able to exonerate you.”

The usual argument for getting blood samples without a warrant is what judges have called the “evanescent” nature of the evidence. Because alcohol levels tend to decline in the blood after a person has stopped drinking, evidence of intoxication immediately begins to disappear.

And as police go through the steps to get a warrant — writing the affidavit and taking it to a prosecutor and a judge — the case could be slipping away, the argument goes.

In far-flung Jackson County, that process can take two or three hours, officials said.

But that time-sensitive element is not part of the case currently before the Supreme Court.

In that case, it was just after 2 a.m. Oct. 3, 2010, when a Missouri Highway Patrol trooper pulled over Tyler G. McNeely for speeding in southeast Missouri and immediately suspected that he’d been drinking.

According to court records, McNeely performed poorly in field sobriety tests but declined to submit to a breath test. The trooper, who recently had read an article by a state prosecutor suggesting that a warrantless blood draw “does not offend constitutional guarantees,” took McNeely to a hospital and had his blood taken about 25 minutes after the initial traffic stop. Tests showed a blood alcohol level of 0.154 percent, nearly twice the legal limit.

Later, in court, the trooper testified that he always had gotten warrants before and that a prosecutor and judge probably were available to him that night.

The Missouri Supreme Court upheld the trial court’s suppression of the blood evidence, leaning on the 1966 Supreme Court ruling. The state high court ruled that warrantless blood draws were permitted only when a number of pressing circumstances, such as investigating an accident and tending to the injured, made getting a warrant too time-consuming.

Other states’ supreme courts and federal appeals courts have ruled that the only pressing circumstance to be considered is the declining blood alcohol content of the suspect driver.

About half of states, Kansas among them, require warrants in some circumstances, but attorneys general from many of those have joined Missouri in asking for more leeway in getting blood samples without warrants.

Prosecutors such as Zahnd have equated the destruction of alcohol in the blood to a drug dealer flushing his wares down the toilet while police knock politely at the front door. Courts have said that in the drug dealer scenario, a warrant isn’t necessary when police have probable cause that evidence is being destroyed.

Using a state safety grant, Zahnd has outfitted police, prosecutors and judges with iPads to speed the warrant application process, using electronic affidavits and videoconferencing. Since beginning that process in mid-September, officers there have obtained 21 search warrants for suspects’ blood, Zahnd said.

But drawing blood without consent raises the whole “search and seizure” question to an uneasy new level.

“Some people might think that their arteries and veins are as private to them as their homes,” said Jackson County Circuit Judge John Torrence.

Kansas City police do not make warrantless blood draws, said Sgt. DeEtta Jacobs of the accident investigation section. But police will seek the warrants in serious injury or fatal accidents.

On a plain-vanilla DWI case such as McNeely’s, a driver who won’t take the breath test will be charged with refusing, which would lead to an automatic one-year suspension of the driver’s license.

According to records in the Supreme Court case, about 80 percent of drivers agree to submit to a breath test when asked. But even with the authority to draw blood without consent, local police probably would not take more blood samples than they’re already getting, Jacobs said. The time and expense of taking a suspect to the hospital are prohibitive enough.

But such authority could prove useful, Jacobs said. Although breath tests work well for alcohol, they aren’t much use for prescription intoxicants or illegal drugs. And just knowing that police could draw blood without consent could cause someone to think twice about driving after too many drinks.

“It’s a deterrent,” she said. “Forty-seven percent of our fatals involve someone who was impaired.”

Defense lawyers caution, however, that the warrant process usually makes for better cases against their clients. A warrant, obtained after an officer convinces a judge that probable cause of intoxication exists, can serve as a powerful shield if the evidence is challenged in a suppression hearing.

And getting such warrants is a basic civil rights protection, said Kevin Regan, a criminal defense lawyer who tried drunken-driving cases as an assistant Jackson County prosecutor in the 1980s.

“It’s important,” Regan said. “The framers of the Constitution said your bodily privacy cannot be invaded without certain safeguards. One of those safeguards is having an impartial member of the bench review whether police have probable cause.”

Richard Bryant, a defense lawyer who advised Lenexa and Westwood police on warrant procedures in the late 1970s, said officers usually need blood samples in only the most serious cases, such as a fatal accident. Failure of a field sobriety test still can be very good evidence of intoxication.

“If you can’t make the case from the driving conduct, erratic behavior and staggering, then what good is the Breathalyzer going to do for you?” Bryant said.

That’s why Tyler McNeely won’t be home free if the U.S. Supreme Court rules in his favor.

Nothing in the law requires prosecutors to submit blood alcohol evidence to get a conviction for driving while intoxicated.

When the Missouri Supreme Court threw out the blood evidence against McNeely last year, judges said authorities still could prosecute him.

“The state may go forward in the prosecution of the DWI charge against (McNeely) based on evidence gathered in conformity with the Constitution,” the court ruled.