Justice Sonia Sotomayor didn't waste time at today's Supreme Court hearing on whether and when law enforcement officers - without a warrant- can force a drunk driving suspect to take a blood test to check for intoxication.
The case is about the Fourth Amendment's ban on unreasonable search and seizure.
Sotomayor got to the heart of the case with this question: "How can it be reasonable to forego the Fourth Amendment in a procedure as intrusive as a needle going into someone's body?"
In the case, Tyler G. McNeely claims that his constitutional rights were violated in 2010 when he was pulled over for speeding and suspected of being drunk.
When he refused to volunteer for breath or blood tests he was taken to a hospital, handcuffed and forced to submit to a blood test. The arresting officer never obtained a search warrant prior to the blood draw.
Although the test results showed that McNeely was above the legal limit, he fought and won in lower court to have the evidence against him suppressed. McNeely said the warrantless and non-consensual blood test amounted to a violation of his Fourth Amendment rights.
But the state of Missouri is appealing that decision and is arguing that the officer was justified in proceeding without a warrant because he was fearful about the destruction of evidence. The officer was concerned in part about how a delay might impact the rate of elimination of alcohol in the bloodstream which diminishes over time.
John N. Koester, an assistant prosecuting attorney in Jackson, Mo., told the justices, "securing blood alcohol evidence with as little delay as possible is incredibly important." He hopes the justices will adopt a rule allowing warrantless blood draws in every drunk driving investigation.
But the justices seemed skeptical of such a hard line rule. Justice Antonin Scalia emphasized the intrusion of having a "needle shoved in his arm" and wondered why the officer didn't choose the less intrusive breathalyzer test.
Koester explained that for practical reasons "it's very difficult to force a drunk driver to take a breath test."
Justice Anthony Kennedy said he was concerned with the fact that 25 states have prohibited warrantless blood draws in routine DWI cases. "If we are talking about reasonableness," he said, "do you think it's relevant for us to look to the rules and practices of the other states?"
The justices focused on the fact that the amount of time it takes to get a warrant varies across jurisdictions. While some have set up a telephonic system, others require the prosecuting attorney's involvement.
"In some cases I suppose the judges actually want to read the affidavit and give it some thought," Chief Justice John Roberts said. "It's not going to be three minutes."
Nicole A. Saharsky, an assistant to the U.S. Solicitor General arguing in support of Missouri, picked up on that point. "We are just not in a place where the time to get the warrant everywhere is 15 minutes or less," she said.
That provoked Scalia, who worried that if the court were to say no warrant was necessary then there would be no turning back. "Once we say that you don't need a warrant, you know, even if things improve, the game's up, right?….Why shouldn't that determination be made case by case?" Scalia asked.
Justice Ruth Bader Ginsburg suggested a time limit: "What about saying at least they should try, since a number of jurisdictions can do this within a half hour. Say initiate the process while you are going to the hospital. When a half-hour is up you proceed. But at least there has been an effort to get a warrant. "
Justice Elena Kagan pointed out that since a blood test usually means a trip to the hospital , "Why can't you use that amount of time, if you can, to try to get a warrant."
Before sitting down, Saharsky reminded the justices about the larger problem of drunk driving. "We're talking about one person being killed every 51 minutes, " she said.
Finally it was the turn of Steven R. Shapiro, of the ACLU who was arguing on behalf of McNeely. "The issue in this case," he said, is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent. "
Shapiro said that Missouri's answer to that question is "Yes, even in routine DWI cases like this and regardless of how quickly and easily a warrant could be obtained." Shapiro said that Missouri was proscribing "no role at all for a neutral and detached magistrate."
But Scalia asked, "Is this a lot of sound and fury signifying nothing? I mean, what advantage do you think your client would really get from the warrant requirement other than the delay that would entail allowing his blood alcohol to reduce itself?"
Shapiro was quick to respond, "This court's entire Fourth Amendment jurisprudence, your honor, rests on the proposition that the privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the state does something as intrusive as putting a needle in somebody's arm."
But Alito challenged him on the notion that a magistrate is always available. "Suppose you are in a rural jurisdiction and it takes a long time to rouse a prosecutor and a magistrate at 3 in the morning to get the warrant. You would say, that's too bad, the whole country has to operate like New York City, you have to have somebody on duty all the time?"
Shapiro admitted that unavailability due to illness could be an exigent circumstance which would allow a warrantless blood sample.
After arguments Shapiro said, "The interest that is being preserved is a very important principle, that before the government conducts a search, and especially a search as intrusive that involves putting a needle in your arm over your objection when you're restrained, that decision ought not to be made by the police themselves absent a true emergency, but ought to be reviewed and approved by a judge. That's the principle under which our constitutional law operates. "