Debate Forum 3/8/16


Dude, where’s your warrant?

Drivers butt heads with police over blood draws

By Sarah Sidlow

The Supremes recently added another hit to their 2016 playlist: re-evaluating whether states can make it a crime for drunk-driving suspects to refuse to take blood-alcohol tests when police haven’t secured a warrant.

The case stems from three individual cases, two from North Dakota, one from Minnesota. In North Dakota, Danny Birchfield drove his car into a ditch. Steve Beylund “nearly hit a stop sign while making a right hand turn into a driveway.”

In Minnesota, William Bernard got his truck stuck in the river. While trying to extract his boat. In his underwear. Police in their respective states were pretty sure these guys were intoxicated.

But it’s what everyone didn’t do that makes this story interesting.

After failing field sobriety tests and taking a breathalyzer test, Birchfield refused to surrender his blood for testing—a class B misdemeanor, which carries a $1,000 fine and up to 30 days in jail. Beylund failed to produce a sample for a breath test but consented to a blood test after being informed of the penalties.

Bernard refused to perform field sobriety tests and declined a breath test, and was arrested for driving while impaired.

Why did the three B’s refuse testing? Because the police didn’t have a warrant, and Birchfield, Beylund and Bernard felt their Fourth Amendment protections against unreasonable searches and seizures were being violated.

The police—and the state appeals courts—didn’t see it that way. Minnesota and North Dakota, plus 11 other states including Ohio, have “implied consent” laws that require motorists to submit to blood, breath or urine tests if a police office believes they are intoxicated.

These recent cases are making many wonder, under what circumstances may the state pull evidence from your body to use against you?

Those on the B squad, who say this is unreasonable search and seizure, often cite the 2013 Supreme Court ruling Missouri v. McNeely, in which the Supremes ruled that police investigating a drunken-driving incident must generally obtain warrants before drawing blood without consent.

They claim it’s hardly unreasonable to ask the government to take the additional steps necessary to procure a warrant, if there is indeed probable cause to do so.

They call coercion on the part of the law enforcement and justice systems, because the penalties for refusing the tests (loss of driver’s license, fines and jail time) pretty darn similar to the penalties for being found to have been driving under the influence.

Those who oppose the unreasonable search and seizure argument claim there are a few reasons police can’t always wait on a warrant before drawing blood. To start, they claim that waiting for a warrant may allow alcohol to dissipate in the blood—which would be considered destruction of evidence.

They also justify implied consent on the grounds that drivers have given their consent to be tested as a condition of being permitted to drive.

“Driving is a privilege, not a constitutional right,” wrote North Dakota Supreme Court Justice Lisa K. Fair McEvers, “and is subject to reasonable control by the state.”

Reach DCP freelance writer Sarah Sidlow at

Want my blood? Get a warrant.

By Jacob Sullum

These embarrassing incidents may not sound like the stuff of an inspiring legal battle. But all three cases, which the U.S. Supreme Court recently agreed to hear together, pose an important question about the balance between public safety and the Fourth Amendment’s ban on “unreasonable searches and seizures”: Under what circumstances may the state delve into a person’s body, looking for evidence to use against him?

The usual answer is that the state needs a warrant issued by a judge, based on probable cause to believe the search will discover evidence of a crime. “Probable cause,” a phrase used by the Fourth Amendment itself, has never been precisely defined, but it is not a very high standard. According to the Supreme Court, it may amount to no more than a “substantial chance” or a “fair probability.”

Nor is getting a judge to certify probable cause much of a burden in an age of instantaneous mobile communications and electronic warrants. But police tend to take short cuts when they are available, so it is not surprising that the cops who arrested Birchfield, Beylund and Bernard for driving under the influence (DUI) made no attempt to obtain warrants authorizing chemical testing of the alcohol in their blood.
All 50 states have “implied consent” laws that condition the “privilege” of driving on submission to testing in the event of a DUI arrest. In most states, test refusal does not trigger criminal penalties, but it results in license suspension and can be used as evidence against DUI defendants—a policy the Supreme Court has approved. Minnesota and North Dakota are two of 13 states that treat test refusal as a crime.

Birchfield, Beylund and Bernard argue that threatening them with criminal penalties for refusing to submit to a warrantless search violates their Fourth Amendment rights. If a search is not valid to begin with, they say, “consent” obtained under threat of punishment cannot make it so.

In Bernard’s case, the Minnesota Supreme Court sidestepped the “implied consent” issue by ruling that chemical testing of someone charged with DUI is justified as a “search incident to arrest.” The U.S. Supreme Court has said such searches are permitted without a warrant because they are aimed at finding weapons that could pose a threat to police or evidence that the arrestee might otherwise destroy. Although neither of those goals is served by testing the breath or blood of a DUI arrestee, the Minnesota court claimed that does not matter. “The Court has not applied these concerns as a limitation on the warrantless search of the body of a person validly arrested,” it said, and chemical testing for alcohol falls under that heading.

The Minnesota decision in particular seems inconsistent with Supreme Court precedents. Last year, for example, the Court ruled that police may not examine the contents of an arrestee’s cellphone without a warrant. Examining blood or air drawn from inside his body seems at least as intrusive, and it is equally untethered from concerns about weapons or the destruction of evidence.

The Minnesota court’s distinction between searches of an arrestee’s person and searches of the area near him (such as his car) likewise seems counterintuitive. “It would be perverse to suggest that a greater degree of justification is required for a search of an arrestee’s property and of the area surrounding him than for a search inside the arrestee’s body,” Bernard’s lawyers argue. The two dissenting justices in the Minnesota case complained that “the court today fundamentally departs from longstanding Fourth Amendment principles” and “nullifies the warrant requirement in nearly every drunk-driving case.”

That result is hard to reconcile with Missouri v. McNeely, the 2013 case in which the Supreme Court said concerns about falling BACs do not automatically justify warrantless blood testing of DUI suspects. The implication of that decision was the police should obtain warrants for blood tests except when circumstances make it impractical. No such circumstances seem to have been present in any of these three cases, and the search-incident-to-an-arrest justification implies that a warrant is never required for a blood test, provided there is probable cause for a DUI arrest.

The Supreme Court’s attitude toward the “implied consent” fiction is uncertain. In a McNeely passage frequently cited by defenders of that principle, the Court said:

States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense … Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.

Those comments certainly make it sound as if the Court is fine with the general notion of implied consent to chemical testing, although it may nevertheless conclude that criminal penalties for refusing go too far. “This regime plainly is coercive,” Bernard’s lawyers note.

In truth, that description applies to all 50 states, not just the 13 that treat test refusal as a crime. “Unlike some government benefits,” Bernard’s lawyers observe, “driving is a necessity for millions of people who cannot earn a livelihood or participate meaningfully in society without it.”

This system is convenient for the government but contemptuous of our Fourth Amendment rights. If there is probable cause for a DUI arrest, there should also be probable cause for a blood or breath test warrant. Asking the government to take that additional step is hardly unreasonable, especially given how easily it can be accomplished nowadays. To the contrary, what’s unreasonable, and therefore unconstitutional, is demanding access to the contents of someone’s body without a warrant.

This article originally appeared at
Jacob Sullum is senior editor at Reason magazine and

Blood dope

By Ben Tomkins

The legal statutes and precedent for drawing blood if a person has been arrested under suspicion of OVI (operating a vehicle under the influence) are fairly concrete. Every single state has implied consent laws, and require blood, breath or urine tests to be administered in the event that a person is arrested. In 2013, the Supreme Court held in Missouri v. McNeely that drawing blood constituted a search according to the Fourth Amendment, and unless there were exigent circumstances no person could be forced to submit to a blood test without a warrant.

The last part is the important part, particularly for people who live in Ohio. Make no mistake about whether or not your blood may be drawn against your will: if a warrant is obtained for taking your blood, “the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” This means that if they have to, the police will hold you down and a nurse will stick a needle in your arm and take your blood for chemical testing. The law further states that blood must be drawn within a certain period of time so that any chemicals or their metabolites are in a condition similar to those at your time of arrest, and there are specific procedures for handling of the sample as well as the types of needles that must be used.

You can, of course, refuse to have it taken voluntarily. Implied consent means that when you get your driver’s license you have implicitly agreed to submit to take any blood, breath or urine tests required by state law if you are arrested. If you refuse, your license immediately vanishes into thin air for at least a year, and it also doesn’t mean that the above scenario will not occur. Further, the fact that you chose not to take a test can be used as evidence against you.

I’ve said all that to ensure that we’re all on the same page about what the law says, because when it comes to the automobile and our personal rights, for some reason it brings out the most vitriol in people. Almost everyone I know who gets a speeding ticket, blows through a stop sign, or rear-ends someone has a billion reasons why it’s either not their fault or they should be let off because the officer did something they weren’t supposed to. It’s “they didn’t check a box,” “it looks like they might have misspelled my name because of the handwriting,” or just a general stream of nonsense about being victimized in the name of police fundraising.

Seriously. You’re really going to cite the Bill or Rights over a traffic stop as if 99.999 percent of the procedures and standards haven’t been somewhat crosschecked in that regard?

Now I will grant that once people start talking about involuntarily taking your blood it has the facial appearance of fascism. The phrase “strapped down to a table” doesn’t exactly sound civilized, and for anyone who hasn’t had the pried open eyes scene from Clockwork Orange pass through their mind just did now that I mentioned it. It’s bad enough having your arms and legs gently patted down by a TSA official at the airport, and an actual intrusion into your body—particularly with pointy medical devices—has all the metaphorical elements of rape. However, even though this type of imagery immediately draws our minds to the suffering of the person on the table, we can’t omit the fact that there are a whole lot of surrounding circumstances that resulted in that person being there. This is both the boon and the curse of the 30-second cell phone video that goes viral.

However, it is not a bad thing to have your blood drawn by warrant or due to emergency circumstances. For starters, let’s not forget that the person having their blood drawn is impaired, i.e. they aren’t acting normally. The drawing of your blood is not just about gathering as much evidence as possible to throw you in jail. My grandfather was taken in after having run his car into a tree and stumbling around like a drunk. He was having a stroke. Medications can have bad side effects, and all kinds of nasty things can result in you failing a field sobriety test. When that blood is drawn, you will be in front of a nurse who can take a look at you. If someone slipped you something, they’ll find out. Yes, a warrant and three large police officers may be necessary to get that blood because of your state of mind, but your life could be riding on it.

The bottom line is, generally speaking I think most officers would rather drive around without having to deal with bad things. When they have to intervene, it’s for your safety and the safety of those around you, and if something about you isn’t right physically in a car then their priority is to get you off the road so you don’t hurt yourself or others whether you are drunk or have been shot with an elephant tranquilizer. Warranted blood draws are reasonable when conducted properly and with oversight, and ultimately they prevent an infinitely greater amount of harm than the abuse of a tiny needle prick.

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at


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