In the 2013 case of Missouri v. McNeely, the U.S. Supreme Court ruled that subjecting someone to a blood test, which involves a needle stick, is much more intrusive than subjecting them to a breath or urine test. Therefore, it is a more serious intrusion into the person’s Fourth Amendment rights against unreasonable searches and seizures.
Since it’s a serious intrusion, the high court ruled that a warrant is generally required before police can order a blood test. However, the police might be allowed to order a blood test without a warrant in “exigent circumstances” — an urgent situation where the evidence could be lost, for example. That said, the court explicitly stated that the mere passage of time does not create exigent circumstances even though time passing will allow blood alcohol to metabolize.
So, it comes as a bit of a surprise that a plurality of the Supreme Court has just ruled that officers can generally order blood tests on unconscious drivers without a warrant.
We apparently have more Fourth Amendment rights when we’re awake
The case before the Supreme Court came from Wisconsin which, like Tennessee, has what’s called an “implied consent” law. By virtue of driving on the state’s roads, you have theoretically consented to a blood, breath or urine test when duly ordered by a law enforcement officer. You can withdraw this consent and refuse the test, but there is a cost: Your driver’s license will be suspended.
As we discussed when the case was being heard, the Wisconsin man was pulled over for drunk driving in May 2013. A preliminary breathalyzer test indicated his blood alcohol level was 0.24, but that test was not admissible in court. So, the officer decided to take the man to a hospital for a blood test.
Along the way, the Wisconsin man became unconscious and could not be roused. The officer had the blood test done anyway. Did this violate his constitutional rights because there was no warrant? Did the implied consent law give the police the right to order the test?
Writing for the plurality, Justice Samuel Alito said that no warrant was necessary. Interestingly, he did not rely on the implied consent law but suggested that the driver’s unconsciousness created exigent circumstances that obviated the need for a warrant.
“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” reads the opinion. “It would be perverse if the more wanton behavior were rewarded – if the more harrowing threat were harder to punish.”