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DUI, Blood Tests, and Warrants

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Do police need a warrant to take a blood sample from an apparently intoxicated driver without his consent?  The U.S. Supreme Court today decided Missouri v. McNeely, No. 11-1425:

We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.
The answer is no, they need a warrant, but the Court is surprisingly fractured in this case.

On the narrow question stated above, the Court ruled 8-1 that the dissipation of alcohol alone does not amount to an exigent circumstance.  The opinion by Justice Sotomayor (the opinion of the Court at this point) distinguishes Schmerber v. California, 384 U.S. 757 (1966), a rare case where Justice Brennan cast the deciding vote in favor of the prosecution and wrote the opinion.  Schmerber involved additional facts supporting exigency beyond dissipation alone.  Also, advances in technology make quick issuance of a warrant much easier now than it was then.

So what else is needed?  Justice Sotomayor's opinion provides little guidance, and this is where four Justices split off.  Chief Justice Roberts writes for himself and Justices Breyer and Alito:

A police officer reading this Court's opinion would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
Justice Kennedy seems sympathetic to this view, but he would wait for another case to provide that guidance.

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