A question of bloody legalities
Driving is not a right, but a privilege that includes an element of trust. We entrust our very lives to others, counting on fellow drivers to follow the rules. To be responsible. To be sober.
Enforcing that is challenging. Insobriety occurs more at night, relying on on-call prosecutors and judges if warrants are needed. Drunk (and stoned) wears off over time, so testing is more effective when quickly administered. There are two ways blood alcohol content (BAC) may be tested on the spot, either the minimally invasive breathing into a tube, or taking blood with a needle stick.
While citizens have an interest in safe roads, we also have an interest in limiting when government gains control over our bodies — a slippery slope with high costs in a relatively free society. That’s a delicate balance between government interest in public safety, and the public’s constitutional right to privacy.
Two compelling sides which the Coeur d’Alene City Council now ponders as it considers whether its police force should do roadside blood draws.
All states make refusing a breathalyzer a crime; the law considers this “implied consent” to BAC testing a condition of driving. Anyway, we literally give breath away. Breath can’t be kept and reveals nothing else; that kind of BAC testing results only in a computer readout. Vastly unlike blood, which requires piercing to take, reveals much more about a person, is stored and can be further tested. Hence the heightened scrutiny.
Can the government take blood? With a warrant, yes. Without one, the U.S. Supreme Court confirmed last year in Birchfield v. North Dakota, it’s probably unconstitutional. In a general nutshell, the Supremes said:
1. An officer doesn’t need a warrant to require a breathalyzer, as a “search incident to arrest” (or detention). States are also within their rights to make refusing one a separate crime.
2. States can’t make refusing a warrantless blood test a separate crime, because that would violate Fourth Amendment protections against unreasonable search and seizure. But administrative penalties such as license suspension are OK.
3. A warrant is required to take a blood sample. Yet the justices hinted that in some cases “exigent circumstances” may create exceptions, such as when drugs, rather than alcohol, are suspected (not detectable in breath). Courts take it case by case, but the U.S. Supreme Court in the 2013 Neely case held that the dissipation of alcohol in the bloodstream over time wasn’t necessarily enough exigency to take blood without a warrant.
What about 10.1 minutes? Earlier this year the Idaho Supreme Court decided a warrantless blood draw didn’t violate a southern Idaho driver’s rights when the on-call judge didn’t answer the officer’s nighttime call within 10 minutes.
What we don’t yet know — and time will surely tell as such cases are appealed — is if the U.S. Supreme Court would agree with Idaho’s interpretation of Birchfield, or would require more time or efforts before taking blood without a warrant, such as calling other magistrates or prosecutors. Or perhaps modifying procedures within the system, giving officers more options. Warrants also aid later prosecutions, and at least some Idaho judges have been quoted as saying they’ll gladly remain available for such calls 24/7.
“There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” — Antonin Scalia
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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.