Monday, September 14, 2009

The police want to suck your blood

The Constitution doesn't apply to DUI. Those of us in the criminal defense bar have known this for years. They can require you to submit to a Breathalyzer and subject you to consequences if you refuse. They can use that very refusal as evidence of a crime. We find flaws with the breath tests and they just rewrite the laws so the flaws don't matter. There has to be an end. They have to hit some limit. At some point, the general public has to wake up and say, "Well, wait, you can't do THAT."

I would have thought that point would be when police officers start doing blood draws themselves, just out in the field. I would have thought most people would object to that. So far, officers in Idaho and Texas are being trained as part of a federal program. If that pilot program goes well (meaning yields lots of DUI convictions), there will be a push to train officers throughout the country. So we can have police officers pulling out needles on the side of the road. Sounds hygienic. Or I guess maybe they'd at least transport suspects to the nearest station. I'm sure all those police stations will be fully stocked with all the necessary supplies to do this properly and safely once they get their 10 hours of training in. And all without a warrant, because way back in 1966, the U.S. Supreme Court somehow concluded that police could have blood drawn without a warrant. (Not that it would take more than half an hour to call the on-call prosecutor and judges to get a damn warrant.)

Can somebody, anybody, please explain to me how we got from "no unreasonable searches without a warrant" to "police can jam a needle in your arm without a warrant and take your blood?" Because those two phrases don't seem to jibe to me. We the people really need to start objecting to this stuff. Convicting a couple more drunk drivers just isn't worth desecrating the 4th Amendment.


Jeff Gamso said...

In Arizona, I'm told they call them phlebotocops.

But, and I'm being a one-man band on this, posting essentially this comment from one end of the blawgosphere to the other (and why I don't just do my own blogging on it, I'm not sure, except that I spent a year making this point to the press and legislature in Ohio - to little avail):

Schmerber v. California does not, emphatically not, say that cops can take blood without a warrant. Brennan, for godssake, wrote for the majority that under the peculiar facts of that case there was no 4th Amendment violation. Here (and yours is the only blog that's getting the detail) are the facts: Accident, in time the police come, they eat up more time investigating. They take Schmerber to the hospital where they ask if they can take his blood. He calls his lawyer who tells him to refuse, which he does. God only knows how long all that took (SCOTUS doesn't say), but at the end, the cops order the MDs to take his blood. (The main issue in Schmerber, by the way, was whether the blood test was a 4th Amendment search - it was.)

Evidence at the suppression hearing indicated that after all that, by the time they got a warrant the evidence of drinking would have been metabolized in large part.

So, what Schmerber says, is that with both probable cause and an exigency, you don't need a warrant. We knew that before Schmerber.

What's happened since is that the cops and the prosecutors and the courts and too often the defense have just assumed that Schmerber says you can take blood without a warrant in a DUI case.

But with e-mail and fax machines, there's almost never going to be a legitimate exigency today, so Schmerber essentially never allows what everyone thinks it allows.

S said...

I never do DUI cases, so I didn't know the '66 case referenced in the article, but I figured it was along those lines. Thank you for doing the research I was frankly too lazy to do. :)

My gut reaction is this new wave of having cops drawing blood as a matter of routine will be judged anew (I hope) and courts won't just rely on "Schmerber says it's ok." I hope when it does get litigated that the defense attorneys presenting the case do put evidence on the record about the ease of getting warrants, even at 3 a.m. It just isn't that hard to get a warrant! And while you're working on getting the warrant, why not go ahead and transport the suspect to a trained medical professional who can do the blood draw if approved?

Bob S. said...

With you all the way on this one. Next it will be DNA, fingerprints, etc.

I am amazed that a refusal to let a cop search a vehicle is often used as an excuse to search it.

As with blood draws, standing up for your rights means you are guilty for too many cops.

Great post

Nascent said...

Bob, I don't understand your first line:

"With you all the way on this one. Next it will be DNA, fingerprints, etc."

Ummm... can't they already take your DNA without at warrant? California v. Greenwood has been cited on this. Discarded DNA is usable without a warrant.

As for fingerprints, it probably wouldn't be hard to get you to leave a few of those too.

Bob S. said...

Discarded DNA, but just like the trend with blood, next will be the cops are allowed to take your DNA anytime they want.

This is creeping statism and it should be stopped. I'm not talking about discarded fingerprints, but forcing a person to comply.

I'm not a lawyer so S. correct me if I'm wrong...but the general progression is well known.

It used to require a warrant signed by a judge for a blood draw and had to have a good reason.

Then the changes in DUI/DWI, so that refusal to take a breatheanalyzer was a sufficient reason to get a warrant (If a person isn't visually or behaviorally obviously intoxicated, just how much of a problem were they?)

Now, the police don't need a warrant, aren't subjected to oversight in blood draws.

That is what I mean by DNA, Fingerprints will be next. They will follow the same pattern.

Our rights aren't taken from us, we give them away.

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