In the wake of today’s decision by the U.S. Supreme Court in Missouri v. McNeely, DUI defense attorneys across the land are doing the “happy dance.”  Prosecutors (both state and federal) on the other hand are rending their garments and hair trying to figure out how to deal with the high court’s ruling that forced blood draws in most DUI cases will now require warrants, and the flood of “refusals” sure to follow as the implications of the case filter out to the public.

Wisconsin’s approach, first established in 1993 in State v. Bohling and then reinforced in 2004 in State v. Faust had been to allow warrantless blood draws in drunk driving cases after several criteria were met, including the presence of  probable cause for the officer to believe the driver under investigation had indeed been driving under the influence of alcohol. The key factor that drove the Wisconsin interpretation was the fact that the blood alcohol level of a drunk driving suspect is continually shifting and dissipating from the time the driver is apprehended, and the extra time it takes to procure a warrant incontrovertibly causes BAC evidence to be lost.

Wisconsin’s rationale had recently served as a kind of dividing line in the national debate about warrantless blood draws. 

In the McNeely case, the Missouri Supreme Court had ruled in the opposite direction despite the prosecutor’s reliance in part on Wisconsin’s example, and so the issue finally went to the U.S. Supreme Court to resolve this difference between the state courts’ interpretation of the Fourth Amendment on the subject.

I will leave it to the constitutional experts among us to parse each paragraph of the McNeely decision and suggest both how to streamline middle-of-the-night warrant procedures, and to determine what other circumstances might combine to justify “exigency” enough to dispense with a warrant in a DUI investigation.

But what I found striking about both the oral argument in McNeely and the decision that followed was a previous U.S. Supreme Court case that wasn’t mentioned.

It gives me no pleasure to say “I told you so” at the announcement of today’s result. I had flown to Washington, D.C. in January to watch the oral arguments in McNeely with more than a little personal interest. I had successfully argued the State’s position before the Wisconsin Supreme Court in the Faust case, and had shared theories and briefs and arguments with the Missouri prosecutor as he prepped for his big moment. Darn it, I wanted to claim a front seat at the table of history in the single SCOTUS case I could ever claim a tangential connection to!

My friends and co-workers will recall my glum prediction when I returned to the office the next day. It was clear from the questions, tone, and body language of several of the justices that a majority of the Court was skeptical about the importance of the “exigent circumstances/alcohol dissipation” link. Justice Sotomayor, who authored the majority opinion, had the young Missouri prosecutor for lunch right out of the gate, and the prosecution side never really recovered after that despite a stellar performance by Assistant Solicitor General Nicole Saharsky, who claimed half of the Missouri oral argument time.

The case technically hinged on the interpretation of a 1966 case, Schmerber v. California, in which the Court had allowed a particular warrantless blood draw in a DUI case involving an accident and injury, but had not established the type of “bright line” rule that Wisconsin later adopted.

It was clear, watching from the sidelines at the McNeely oral arguments, that some of the justices had an unmistakable, visceral recoil at the idea of  “STICKING A NEEDLE IN YOUR ARM!!!” The distasteful “intrusiveness” of a blood draw was invoked by several justices as well as the defense attorney, and at that point the writing was already on the wall for the prosecution side of the case.

However, just nine years before Schmerber was decided (and long before any of the current justices on the SCOTUS bench had been fitted for their robes) the U.S. Supreme Court had considered the exact same medical procedure in another drunk driving case and pronounced it “routine in our everyday life” and a “test of the kind to which millions of Americans submit as a matter of course nearly every day.”   As I sat in the Supreme Court chambers, I was astounded that nobody thought that the Supreme Court’s measured consideration of the relative “intrusiveness” of blood alcohol tests in Breithaupt v. Abram had any relevance today to the weighing of individual privacy interests against society’s interest in stemming what the Court called “the increasing slaughter on our highways.” Granted, Breithaupt considered blood draws in a Fourteenth Amendment context rather than a Fourth.

Still, the closing paragraph to this unanimous opinion regarding individual and societal rights hanging in the balance where the deterrence and punishment of drunk drivers is concerned deserved a place in the McNeely discussion, and is still worth pondering.  And so I leave you with the closing words from Breithaupt, which ring as true today as they did in 1957. It’s too bad that nobody thought to mention them in Washington last January.

As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.

Mary T. Wagner, MU Law ’99, has served as an Assistant District Attorney in Sheboygan, Wisconsin since 2000.