Analysis
A police officer out on patrol who stops a driver who seems to be drunk may not have read through four new Supreme Court opinions and counted the Justices’ votes accurately, but that officer would probably do the sensible thing by getting a warrant before having the driver’s blood tested without consent.
That would be the best thing to do because the bottom line of the Court’s decision Wednesday in Missouri v. McNeely (11-1425) was that every case will be judged on its own facts, so the officer can never know whether failure to get a warrant will scuttle a drunk-driving case altogether.
None of the Court’s four opinions — a majority, two separate opinions supporting the result, and one dissenting opinion — said that officers investigating drunk-driving cases must always get a warrant. But the majority did say that the Constitution does not allow police to get a blood sample without ever having to get a warrant, in any case (as the dissenting opinion suggested). So that sets up the case-by-case approach, suggesting that getting a warrant very likely would remove the doubt.
Because the vote of Justice Anthony M. Kennedy was necessary to make a majority for the requirement that each case be judged on its own facts, his separate opinion may have special importance for local governments and their police forces as they decided how to react to the new ruling.
Justice Kennedy suggested that local officials still retain the authority to work out “rules and guidelines that give important, practical instruction to arresting officers,” and that those kinds of rules might well allow blood testing without a warrant “in order to preserve the critical evidence” of blood alcohol content. As further cases develop, Kennedy wrote, the Court itself might find it worthwhile “to provide more guidance than it undertakes to give today.”
His fifth vote supported this bare conclusion: “always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.”
With his qualifications stated, Kennedy joined most of the Court opinion written by Justice Sonia Sotomayor and supported in full by Justices Ruth Bader Ginsburg, Elena Kagan, and Antonin Scalia.
The Sotomayor opinion stressed that getting a warrant should be the default protocol in drunk-driving cases where officers decide to have a blood test made. That opinion said that the mere fact that alcohol in the blood does dissipate over time is not enough, by itself, to do away totally with the requirement for a search warrant — the position that the state of Missouri took in this case.
The lead opinion sought to make the point that the Court was simply applying standard Fourth Amendment doctrine, and that the Court’s precedents simply did not support a blanket rule that blood could be drawn by the government without ever having to seek a warrant from a judge first.
That opinion also stressed that state and local governments have adopted a number of new procedures that make it easier, and faster, to get blood-test warrants, and that those procedures will help to assure that blood alcohol evidence does not disappear before a test could be made. “Our ruling will not severely hamper law enforcement,” Justice Sotomayor wrote.
Chief Justice John G. Roberts, Jr., in an opinion joined by Justices Samuel A. Alito, Jr., and Stephen G. Breyer, argued for a more-or-less flat constitutional rule that an officer must seek a warrant before having a DUI blood test made, if there is time, but not otherwise. If there is not time, in the officer’s judgment, that opinion said, there is no warrant requirement. That is an exigency, the Chief Justice wrote, because of “the imminent destruction of evidence” that results from the way the blood absorbs alcohol. Those four would have sent the case back to Missouri’s state courts to apply the approach recited by the Chief Justice.
Justice Clarence Thomas, in a dissenting opinion voicing only his own views, argued that the chemical breakdown of blood alcohol was sufficient to justify never having to get a warrant before an officer ordered a DUI blood test.
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