The Next Term: Will SCOTUS allow warrantless, forcible DNA sampling?

September 19, 2012

Looking ahead to SCOTUS(Editor’s note: The Supreme Court will start to hear oral arguments for its 2012 term on October 1.  In preparation, we’ll be looking at major cases  that will be or may be before the Supreme Court throughout the month of September).

The first week’s post on the possible dischargeability of student loan debt in bankruptcy.

The second week’s post on the many cases involving same-sex rights currently being considered by the Supreme Court.

Supreme Court decisions on criminal law often don’t garner the same national attention as decisions of a more highly charged, political nature, such as June’s health care reform decision.

However, Supreme Court criminal law decisions are closely watched by criminal law practitioners, since these decisions can directly affect their practice.

This is especially true in specialized areas such as DWI (driving while intoxicated) law, since there is a relatively small body of case law with which practitioners have to work.

No doubt, then, will DWI attorneys be closely watching Missouri v. McNeely, which the Supreme Court will be deciding whether to look at during its first conference this coming Monday.

Although I labeled the case as a “DWI” one, it actually also has major implications for Fourth and Fifth Amendment jurisprudence.

And the reason for this becomes clear when looking at the proposed issue before the Court:

When is it constitutional for a law enforcement officer to, without a warrant, extract a DNA sample without an individual’s consent?

With that kind of issue, it’s easy to see how the Constitution’s Fourth (prohibiting unreasonable searches and seizures) and Fifth (bar on self-incrimination) Amendments could be implicated.

The mention of “DWI” likely gave away the bulk of the facts behind the case:

Tyler McNeely was pulled over for speeding at 2 a.m., and the officer noticed that McNeely showed signs of intoxication.

After having McNeely perform standard field sobriety tests, the officer believed that he was intoxicated, and placed McNeely under arrest.

The officer next offered a breath test to McNeely, who refused.

Upon this refusal, the officer drove McNeely to a local hospital and had a blood sample taken without McNeely’s consent (the blood test results showed McNeely’s blood alcohol content as being well above the legal limit).

The issue of forcible DNA extraction isn’t as novel as one might think, though.

In fact, a case containing a version of the facts very similar to McNeely’s has already been heard and decided by the Supreme Court – Schmerber v. California, decided over 46 years ago.

As I mentioned above, Schmerber dealt with a very similar set of facts: a man is stopped for driving while intoxicated and refuses a blood test, so the officer forces one on him.

The major difference between the two is that, in the 1966 case, Schmerber had caused an accident in which he and several others were injured.

These additional pieces constituted “special facts” that “might have led the officer to reasonably believe he was faced with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.”

In other words, because the officer had to deal with the aftermath of the accident – witness reports, medical treatment of crash victims, and other investigatory duties – he didn’t have the time to get a warrant before the “evidence” (i.e., test results showing Schmerber’s high blood alcohol content) was destroyed.

This was not the case in McNeely; it was a simple traffic stop that turned into a DWI arrest.

As the Missouri Supreme Court found in McNeely, there “was no delay that would threaten the destruction of evidence before a warrant could be obtained,” nor was there any evidence “that the patrolman would have been unable to obtain a warrant had he attempted to do so.”

And, after applying Schmerber, the Missouri high court found that McNeely’s constitutional rights were violated and ordered the evidence suppressed (and the conviction overturned).

If Supreme Court precedent was faithfully applied, why is this case being watched so closely?

If the Supreme Court decides to hear this case, it could be a bad sign for Schmerber and, by extension, for McNeely.

After all, Schmerber was decided at the height of the Warren Court’s crusade for individual rights.

The current Supreme Court hasn’t seemed quite so concerned with this issue.

Thus, if the Court reviews McNeely, it will likely be because it plans to strike down or greatly modify Schmerber.

Although it’s no surprise that DWI attorneys will be watching McNeely’s progress at the Court, the rights implicated therein affect a much broader audience.