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4th Amendment Protections: Are Warrantless Blood Draws Constitutional?

The United States Supreme Court has recently agreed to hear an important new case. Missouri v. McNeely involves a DUI blood draw done without consent and without a warrant. Typically, when a person is arrested on suspicion of DUI and refuses to do a blood or a breath test, the officer is legally required to get a warrant (signed by a judge), before taking a sample for testing and evidence. Warrants are usually obtained over the phone and fax, can be done at any time of day or night, and are required under the 4th Amendment protection against unreasonable search & seizure.

The question has now come up: Are there any exceptions to this requirement? Can a blood draw be conducted without a warrant and also not violate 4th Amendment protections?

The 1983 case of Wisconsin v. Welsh is similar to many parts of McNeely. Welsh was a driver suspected of intoxication who, after driving his car off the road, left it there and went home. Based upon witness testimony, officers went to Welsh’s home without getting a warrant first, and arrested him in his bedroom. He refused to take a blood or breath test because the officers had violated his 4th Amendment protections by invading his home without a warrant and arresting him. Under Wisconsin law, a blood or breath test refusal is valid if the arrest was done illegally. The Court declared it was illegal, and ruled:

“A warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant. To allow a warrantless home entry on these facts would be to approve unreasonable police behavior that the principles of the Fourth Amendment will not sanction.”

In criminal law, a person’s 4th Amendment rights against unreasonable search and seizure at home have been extensively brought up for debate. But what about your body? Body searches are arguably even more potentially invasive than searches of a home. We have social expectations of an area of privacy around ourselves, especially in public. Think of sharing armrests in a theater or plane: we tend to avoid touching people we don’t know. Violations to that space and illegal seizure of your blood without your consent are intrusive and disturbing, and frankly, rise to the level of a totalitarian society. No one should expect to have their personal body searched & seized without a warrant, not even by the police.

Arguments for exception to the 4th Amendment protections are routinely denied. Only very few, extremely unique circumstances exist, like a danger to life. The government will typically argue that these draws are immediately necessary because blood alcohol levels drops over time, so a sample is needed “right away,” (Wisconsin v. Welsh) and that even the delay to obtain a warrant may be “too long.” Courts have ruled that this is not a compelling excuse to skip the warrant process. The Court has always recognized a balance between 1) a defendant’s Constitutional protections and 2) the state’s interest in discovering and preventing crime. Court decisions and laws thus far have been in favor of these individual protections.

Hopefully, the Supreme Court’s decision in Welsh is an indicator that civil liberties and constitutional protections should always trump 4th Amendment violations. The Supreme Court’s decision in Missouri v. McNeely will be landmark in establishing the importance of 4th Amendment protections, and in DUI litigation.

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