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Justices wary of DUI blood testing

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By McClatchy Newspapers
Wednesday, Jan. 9, 2013, 8:20 p.m.

WASHINGTON — Supreme Court justices sounded concerned on Wednesday about giving police a free hand to forcibly take blood from motorists suspected of drunken driving.

“It's a pretty scary image of somebody restrained, and a representative of the state approaching them with a needle,” said Chief Justice John Roberts.

While the police stop swerving drivers at all hours of the day and night, rarely are motorists required to undergo a blood test. Typically, an officer tells a driver who appears to be intoxicated to get out of the vehicle, walk a straight line and recite the alphabet. If he fails those tests, the motorist is asked to blow air into a device that measures alcohol in the blood.

A blood test is a fall-back measure, an option for when a driver refuses to take a breath test. But the law in half the states and in many court jurisdictions says an officer must obtain a search warrant before he can force a motorist to have a needle stuck in his arm.

Seeking a change that could have a national impact, Missouri prosecutors and a Justice Department lawyer urged the high court to set aside the requirement for a search warrant. They argued that because alcohol dissipates in the blood, a police officer need not take the time to check with a magistrate.

“Quickly securing blood alcohol evidence with as little delay as possible is incredibly important,” John Koester Jr., a Missouri state attorney told the justices. It takes at least 30 minutes and as long as two hours to obtain a search warrant, he said.

But in their questions and comments, most of the justices said they were reluctant to set aside the warrant requirement in routine drunken driving cases.

As Justice Sonia Sotomayor said, the Fourth Amendment's ban on unreasonable searches has limited the power of officials to order highly personal probes.

“So how can it be reasonable to forego the Fourth Amendment in a procedure as intrusive as a needle going into the body?” she asked.

Two veteran police officers in the region said there is little reason to obtain blood draws over the objections of a motorist without a warrant.

“In Pittsburgh, it's easy for us to get a search warrant if need be. We have a 24-hour court system and several hospitals within a five-mile radius,” said Pittsburgh police Sgt. Daniel Connolly of the collision investigation unit.

“If you are a licensed driver in Pennsylvania, it's implied that if you refuse to submit to testing, your license will be suspended. It's the implied consent law,” said state police Lt. Steve Ignatz of Troop D headquarters in Butler County.

Section 1547 of the state's Vehicle Code states that all drivers in Pennsylvania are subject to the implied consent requirements and must submit to blood or breath tests when requested by a police officer. The section provides for an automatic 12-month suspension of driving privileges if a motorist is arrested on suspicion of driving while impaired and refuses to submit to testing.

The case before the Supreme Court, Missouri v. McNeely, started when a state patrolman stopped Tyler McNeely for speeding about 2 a.m. on October 3, 2010. He failed the sobriety tests and refused to take a breath test.

In every state, including Missouri, refusing to take a breath test can result in your driver's license being suspended or revoked. McNeely, however, faced a possible prison term because he had previous convictions for drunken driving. The officer took the motorist to a nearby hospital, and without stopping to request a search warrant, he told an orderly to take a blood sample from McNeely. A lab reported his blood alcohol level was 0.154 percent, nearly double the legal limit of 0.08 percent.

But a trial judge and the Missouri Supreme Court threw out the blood test evidence against McNeely, ruling the officer should have obtained a search warrant.

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