FantasySCOTUS prediction: Will SCOTUS allow forcible blood sampling by law enforcement?

February 19, 2013

SCOTUS ClipboardBack in September of last year, I covered the case Missouri v. McNeely.

The case involves the question of whether a DNA sample may be taken by law enforcement without the subject’s consent.

McNeely specifically involved a man, Tyler McNeely, stopped by police for speeding, but then arrested for driving under the influence after the officer had McNeely take a field sobriety test.

The officer then offered a breath test to McNeely, who refused.  Immediately thereafter, the officer drove McNeely directly to a local hospital and had a blood sample taken without McNeely’s consent (which showed McNeely’s blood alcohol content as being well above the legal limit).

McNeely challenged the evidence as being unconstitutionally obtained, and he prevailed before the Missouri State Supreme Court.

Back in September, the Supreme Court hadn’t yet decided whether to grant certiorari.  Six days after the post was published, however, the Court agreed to review the case.

This is significant because, as I had concluded back in September, if SCOTUS were to hear the case, it would almost certainly signal that it intended to reverse the Missouri Supreme Court – with major implications for Fourth Amendment jurisprudence.


Because the Court already heard a very similar case almost 47 years ago:  Schmerber v. California.

Schmerber held that a non-consensual blood draw by law enforcement is a violation of the Fourth Amendment’s protection against unreasonable searches and seizures, but that the “exigent circumstances” exception applied in Schmerber.

The “exigent circumstances” principle is an exception to the Fourth Amendment’s requirement that searches and seizures by law enforcement are reasonable (which, in practice, often means that a warrant be obtained).  These circumstances exist in situations where the delay from obtaining a warrant would risk loss of life or serious damage to property, the escape of a suspect, or the destruction of evidence.

Since the police were responsible for dealing with an accident caused by Schmerber’s intoxicated driving, the police didn’t have the time to get a warrant before the “evidence” of Schmerber’s intoxication had dissipated (Schmerber’s blood alcohol content).

The Court in 1966 held that Schmerber’s accident amounted to “exigent circumstances,” allowing use of the evidence obtained by the blood test and upholding Schmerber’s conviction.

The Missouri Supreme Court, in applying Schmerber to McNeely, held that the “fact that blood-alcohol levels dissipate after drinking ceases is not a per se exigency” justifying a warrantless blood sampling by law enforcement in a DWI case.

I concluded my article back in September by saying that, since the current Supreme Court is far less concerned with individual rights than the 1966 Warren Court, it seems likely that the Court would allow warrantless DNA sampling in a simple traffic stop situation such as McNeely’s, holding that the dissipation of alcohol in the suspect’s blood constitutes an “exigent circumstance.”

Oral Arguments

On January 9, the Court heard oral arguments on McNeely.

Much of the discussion was on the length of time that it takes a police officer who made a DWI stop or arrest to acquire a warrant, with some of the Justices and the respondent’s attorney arguing that many jurisdictions nationwide have an expedited process for processing warrant requests in the middle of the night, such that the entire process takes between 15 and 45 minutes.

Unsurprisingly, Justice Scalia seemed to side with the state (both of Missouri and the Federal Government), often using softball questions directed at the arguing state attorneys as a vehicle for essentially arguing the case for them.

Justice Thomas was once again silent, but given his track record, it would be safe to assume that he would come down on the same side as Justice Scalia.

Chief Justice Roberts also seemed to get on board with the state early on, positing on several occasions through the arguments that the judges reviewing the application for the warrant would want to spend some time reviewing them, and that the entire process would surely take longer than 45 minutes.

Also seeming to side with the state was Justice Alito, who repeatedly voiced concerns that many rural jurisdictions wouldn’t have the wherewithal to implement the expedited process that many larger jurisdictions have, and that it would be unfair to the smaller jurisdictions to require them “to operate like New York City, [having] to have somebody on duty all the time.”  In addition, Alito also appeared to advocate a somewhat laissez faire approach, stating that, even if jurisdictions aren’t required to obtain a warrant, they have an incentive to do so anyway since having it sanitizes the evidence obtained from constitutional challenges.

By contrast, the liberal Justices were largely supportive of McNeely, although some did have some reservations about some parts of his attorney’s argument.

Justice Sotomayor came out first and strongest in support, but was followed closely by Justices Ginsburg and Kagan.

Justice Breyer thoroughly engaged McNeely’s attorney during arguments, but it seemed that he was doing it to address concerns of the other Justices and guide the direction of the attorney’s argument (much the same way that Scalia did for Missouri’s and the Federal Government’s attorneys, but a bit subtler).

Anthony KennedyIn the end, though, the ruling will likely come down to Justice Kennedy, yet again.

I went into the oral arguments believing that Kennedy would side with the rest of the conservatives, but I now believe that I was mistaken.

Justice Kennedy seemed to like the idea of an expedited warrant application process, and seemed unconvinced of the idea of an outright exemption from this expedited process for smaller jurisdictions.

Conversely, Justice Kennedy also said something that prevents me from placing him squarely into the liberals’ camp: “we know the defense attorneys love it when there’s a delay, because then the retrograde analysis has more and more contingencies that make it unreliable.”

Nevertheless, I still predict that Kennedy will end up siding with the liberals, and the resulting majority opinion will hold that “exigent circumstance” exist in these types of situations when a warrant could not be reasonably obtained within 30 to 45 minutes.  There would likely also be something in there about using a national standard to determine what “reasonably” means.

Thus, my final prediction is 5-4 affirm.

Missouri v. McNeely

Question Presented

May a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream?

Lower Court’s Decision


My Prediction

AFFIRM 5-4 (Majority: Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan; Dissent: Roberts, Alito, Scalia and Thomas).

Interested in FantasySCOTUS? Check out its website!