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Want My Blood? Come Back With a Warrant!

Posted by Matthew J. Hornsby on January 9, 2013 at 5:45 PM

          Does the 4th Amendment protect citizens suspected of driving under the influence from having a blood sample taken without consent and without a warrant? In case you missed that day in your high school Civics course, the 4th Amendment generally protects citizens against unlawful searches and seizures. That means that in order for the police to conduct a search or seize property, the individual must either provide consent, or a judge must issue a warrant based on probable cause. There are many exceptions to the rule (a search incident to an arrest, plain view searches, emergency – or exigent – circumstances, etc.) but for the most part, without prior consent or a warrant, the police are prohibited from conducting a search or seizure of property.


          In the past, blood has been treated as the property of an individual for 4th Amendment purposes, and therefore a warrantless sampling (or seizure) of that blood would be unlawful, and therefore inadmissible in court. However, the Supreme Court is taking a look at a case where a Missouri police officer ordered a hospital lab technician to take a sample of blood from a DUI suspect, even though the suspect had refused to volunteer the sample. No warrant was ever granted, nor even applied for. As you may have anticipated, the suspect’s blood-alcohol content (BAC) was well over the legal limit and the prosecution intended to use the BAC result in the trial. The defense filed a motion to suppress the blood test results, citing an unconstitutional search/seizure. The government argued that the rate of dissipation of alcohol in the blood stream required a quick sample, and was therefore an emergency situation. The Supreme Court must now determine whether the results are admissible, given the nature in which they were obtained.


          Comments from the oral arguments, which occurred today, suggest that a majority of the Justices are skeptical of the constitutionality of a warrantless blood sample. Both conservative and liberal Justices grilled the attorney for the state about the intrusiveness of needles, and the ease at which a warrant could have been obtained if the officer had just picked up the phone. From reading the transcripts of the statements made by the Justices, it appears that most, if not all, are uncomfortable with the 4th Amendment being trumped by the convenience of law enforcement. Of course, as demonstrated last year, until the formal opinion is issued, comments and questions by the Justices should be taken with a grain of salt.

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