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Written in Blood: Revisiting Schmerber v. California
Joshua S. Levy
On October 3, 2010, Tyler McNeely “had a couple of beers” and then swerved and sped his truck along a Missouri state road at two in the morning. After being stopped by a Missouri state highway patrolman, McNeely performed poorly on standard field-sobriety tests and repeatedly refused breath tests. The officer arrested him and took him to the local hospital for a forced blood draw without obtaining a warrant. The blood test revealed a blood-alcohol content (“BAC”) well above the legal limit, but after a series of court rulings and appeals, the Missouri Supreme Court suppressed the blood test because the officer violated McNeely’s Fourth Amendment rights. The U.S. Supreme Court agreed to consider the issue of warrantless blood draws for the first time in over 45 years in Missouri v. McNeely. The Court agreed to hear the case in light of the deep split among both state and federal courts interpreting Schmerber v. California.
In Schmerber, the Court held that a warrantless blood draw did not violate the Fourth Amendment under the exigent circumstances exception because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops,” and the defendant had to be taken to the hospital for his injuries, so there was no time to obtain a warrant. Yet after Schmerber, courts split on interpreting its rationale. Some courts hold that the exigent circumstances exception applies to blood draws in driving while intoxicated (“DWI”) cases because of falling BAC levels, and generally permit warrantless blood draws. Other courts maintain that Schmerber turns on the “special facts” of a car accident requiring hospitalization, and generally do not permit warrantless blood draws. Legal confusion is inevitable whenever the Court rules on the constitutionality of any particular technology—-the confusion surrounding warrantless blood tests is no exception.
Latest from the Faculty Blog:
Privacy and the Surveillance State
According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.
The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.
It remains that it is always easier to give away someone else’s privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance–for them, the potentially ubiquitous video recording devices will be aimed at someone else.
That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private–like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?