High Tech Squares Off with the Fourth Amendment, Round Five: Can the Government Suck Your Blood Without Asking? (Any more than usual, that is)

The Fourth Amendment prohibits the government from conducting searches of “persons, houses, papers and effects” absent the imprimatur of a warrant from a judge. Does this protection extend to the veins in your arms and the blood within?

One would hope so. It is hard to imagine many acts more intrusive and intimate than the drawing of blood. It is bad enough when done by your own doctor or a nurse, but should the state be able to do it without advance judicial permission?

While for the squeamish among us, the answer is clearly “no”; from a legal viewpoint, the question is far from settled. Last month, the United States Supreme Court heard oral argument in Missouri v McNeely and this question is now primed for resolution.

In McNeely, the defendant was stopped in his car on suspicion of driving while intoxicated. He refused to take the automatic portable breathalyzer test the police had on hand. In response, the officers drove him to a nearby hospital and directed an attendant to draw blood and test it. It likely came as no real surprise to anyone that the results were roughly twice Missouri’s legal limit.

The question then was whether these results were admissible or whether they should be excluded as the product of an unreasonable search and seizure. After the case made its way through the trial courts, the Supreme Court of Missouri sided with McNeely, finding the blood test to be an unreasonable search since there was no “exigent circumstance” that would excuse the absence of a warrant.

But was this the right decision? Although there is some variation as to how fast it takes place, there is no real disagreement that alcohol naturally and quickly dissipates in the human bloodstream, usually at a rate of 0.015 percent to 0.020 per hour. Could time and Mother Nature conspire to let a guilty man go free? Or do the procedures available in most states for police to secure search warrants 24 hours a day, often over the telephone make this unlikely? A tough call, maybe.

A decision will come, presumably later in the term.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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