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Written in Blood: Revisiting Schmerber v. California

JOSHUA S. LEVY*

INTRODUCTION
n 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.1 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.2 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.3 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.4 The Court agreed to hear the case in light of the deep split among both state and federal courts interpreting Schmerber v. California.5

O

* Judicial Clerk, Hon. I. Leo Glasser, U.S. District Court, E.D.N.Y.; J.D., magna cum laude, New York University School of Law (2011); B.A., Economics, highest distinction, University of Virginia (2008).
1 State v. McNeely, No. ED 96402, 2011 WL 2455571, at *1 (Mo. Ct. App. June 21, 2011), transferred to 358 S.W.3d 65 (Mo. 2012) (en banc) (per curiam), cert. granted, 133 S. Ct. 98 (2012). 2 McNeely, 358 S.W.3d at 67-68. 3 See id. at 74-75. 4 See Schmerber v. California, 384 U.S. 757, 770-72 (1966) (describing the last circumstances where the United States Supreme Court considered the issue of warrantless blood draws); Missouri v. McNeely, SCOTUSBLOG, http://scotusblog.com/case-files/cases/missouri-vmcneely (last visited Feb. 12, 2013) (showing the petition for Supreme Court review was granted). 5 384 U.S. at 770-72. Compare, e.g., State v. Bohling, 494 N.W.2d 399, 402-03 (Wis. 1993) (interpreting Schmerber to uphold warrantless blood draws under the exigent circumstances exception to the Fourth Amendment), with State v. Rodriguez, 2007 UT 25, ¶ 50, 156 P.3d 771, 774-76 (Utah 2007) (rejecting the state’s interpretation of Schmerber to permit warrantless

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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.6 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.7 Other courts maintain that Schmerber turns on the “special facts” of a car accident requiring hospitalization, and confusion is generally do not permit warrantless blood draws.8 Legal inevitable whenever the Court rules on the constitutionality of any particular technology—the confusion surrounding warrantless blood tests is no exception. In Schmerber and related cases, the Court engaged in an abstract reasonableness inquiry: balancing the need to enforce drunk driving laws to prevent “[t]he increasing slaughter on our highways,”9 against what it considered the minor intrusion of a blood test.10 Yet the calculus changes over time. According to the latest statistics, deaths from motor vehicle traffic crashes in the United States have fallen to the lowest levels since 1949, despite increases in both population and the number of miles driven.11 Additionally, DNA taken from a forced blood draw can be placed in a database and linked to activities anywhere—a much more serious invasion of privacy by the state.12 Moreover, while the Schmerber Court acknowledged less intrusive means “such as the ‘Breathalyzer’ test,”13
blood draws in all intoxication offense cases). 6 Schmerber, 384 U.S. at 770-71. 7 See, e.g., State v. Shriner, 751 N.W.2d 538, 545-49 (Minn. 2008) (holding that sufficient probable cause of driving while intoxicated provides exigency for a warrantless blood draw); Bohling, 494 N.W.2d at 402-03 (upholding warrantless blood draws as exigency under the Fourth Amendment). 8 See, e.g., McNeely, 358 S.W.3d at 74-75; State v. Johnson, 744 N.W.2d 340, 344 (Iowa 2008); Rodriguez, 2007 UT 25, ¶ 50, 156 P.3d at 774-76. Breithaupt v. Abram, 352 U.S. 432, 439 (1957). See Schmerber, 384 U.S. at 768-72 & n.13. 11 See NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., 2010 MOTOR VEHICLE CRASHES: OVERVIEW 1 (2012), [hereinafter NHTSA REPORT] available at http://wwwnrd.nhtsa.dot.gov/Pubs/811552.pdf. This is not meant to minimize the problem of drunk driving, which still results in tens of thousands of deaths every year. See id. at 2 (noting that high numbers of alcohol related crashes still exist).
10 9

See John Eligon & Thomas Kaplan, New York State Set to Add All Convict DNA to Its Database, N.Y. TIMES, Mar. 13, 2012, http://www.nytimes.com/2012/03/14/nyregion/dnadatabase-pensions-and-redistricting-are-part-of-talks-on-major-albany-deal.html?_r=0.
13

12

Schmerber, 384 U.S. at 771.

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breath tests today are ubiquitous, safe, and “almost universally accepted as reliable sources of BAC in DWI prosecutions.”14 Technology has even reached the point that police can now measure perspiration to determine a person’s BAC levels.15 Finally, a forced blood extraction “is an act of violence”—a battery committed by the state16—and the Schmerber Court expressly refused to consider any risks to suspects’ health or religious beliefs.17 By granting certiorari in McNeely, the Court can address these ongoing problems by adopting the view of the Missouri Supreme Court (and many other state courts) that Schmerber should be narrowed to its “special facts.” Under traditional Fourth Amendment principles, courts look to the “objective reasonableness” of an officer’s conduct on a case-by-case basis.18 In McNeely, the Court has the opportunity to clarify that it upheld the warrantless blood draw in Schmerber because of the particular facts of the case—a car crash requiring hospitalization—that objectively caused the exigent circumstances. Conversely, the broader reading of Schmerber permits warrantless blood tests by balancing the potential privacy harms with the law enforcement benefits of a specific technology (in this case, blood tests) in the abstract. Not only is this interpretation inconsistent with the Court’s Fourth Amendment jurisprudence, it risks “the ossification of law” that prevents courts and lawmakers from acknowledging technological changes that alter the privacy-security balance.19 If the Court narrows Schmerber and states can no longer force warrantless blood tests generally, then they could use breath or sweat tests with police regulations that DNA cannot be collected. Alternatively, states could allow suspects’ refusal to take a breath or blood test to be used against them at trial, and permit the jury to decide to what extent this indicates their culpability.20 While these approaches are already permissible, narrowing Schmerber will encourage their adoption while solving the privacy, medical, and religious concerns raised by forced blood tests.

14 Michael A. Correll, Is There a Doctor in the (Station) House? : Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years After Schmerber, 113 W. VA. L. REV. 381, 386 (2011).

See Erin Murphy, Paradigms of Restraint, 57 DUKE L.J. 1321, 1334-35 (2008). Schmerber, 384 U.S. at 779 (Fortas, J., dissenting). 17 See id. at 771 (majority opinion). 18 Scott v. Harris, 550 U.S. 372, 381-85 (2007). 19 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 165 (1996) (Souter, J., dissenting). 20 See South Dakota v. Neville, 459 U.S. 553, 559-60, 563 (1983) (upholding a statute that “permits a suspect to refuse the [blood] test,” but allows “the refusal to be used against the defendant at trial”).
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Blood Tests at the Supreme Court A. The Road to Schmerber

In the criminal procedure context, the Court first addressed bodily intrusions in Rochin v. California.21 In Rochin, which was decided on Fourteenth Amendment grounds because the Fourth Amendment was not yet incorporated against the states, the Court held that police could not forcibly induce vomiting because it “shocks the conscience” and is “offensive to human dignity.”22 The Court next considered bodily searches in Breithaupt v. Abram, where it upheld the forcible taking of a blood sample from an unconscious suspected drunk driver.23 Although Breithaupt was also decided on Fourteenth Amendment grounds, the Court balanced privacy and publicsafety interests against drunk driving, much like a Fourth Amendment reasonableness analysis.24 Though the Court normally examines the objective reasonableness of an officer’s conduct under the Fourth Amendment,25 the Breithaupt Court balanced the reasonableness of blood tests as a policy matter: the Court concluded that “[t]he increasing slaughter on our highways” outweighs “so slight an intrusion as is involved in applying a blood test.”26 In effect, the Court made a policy judgment that giving police and prosecutors more power to combat drunk driving was worth the discomfort of a forced blood test. The Court formally adopted the Fourth Amendment for bodily searches in Schmerber v. California. In Schmerber, the police suspected that the defendant, who was in the hospital recovering from injuries from a car accident, was driving drunk and asked for consent to a blood test.27 After the defendant refused, the investigating officer ordered a physician to draw a blood sample, which revealed that the defendant was, in fact, legally drunk.28 The Court found no Fourth Amendment violation, holding that because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops,” under the “special facts” of the case—the defendant had to be immediately hospitalized for his injuries, so there was no time to obtain a warrant—the officer had to act immediately or risk the

342 U.S. 165 (1952). Id. at 166-67, 172, 174. 23 352 U.S. 432, 433, 439-40 (1957). 24 See Michael G. Rogers, Note, Bodily Intrusion in Search of Evidence: A Study in Fourth Amendment Decisionmaking, 62 IND. L.J. 1181, 1185-86 (1987).
22 25 26 27 28

21

See, e.g., Scott v. Harris, 550 U.S. 372, 381-85 (2007). Breithaupt, 352 U.S. at 439. Schmerber v. California, 384 U.S. 757, 758, 765 n.9 (1966). Id. at 758-59.

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destruction of evidence.29 The Court further held that blood tests are an inherently reasonable search method under the Fourth Amendment, since they are “commonplace,” “routine,” and “involve[] virtually no risk, trauma or pain.”30 The Schmerber Court saw itself as mostly moving the reasoning of Breithaupt from the Fourteenth Amendment into the Fourth Amendment— where it naturally belonged—because the Court had incorporated the exclusionary rule against the states in the interim.31 Therefore, much like Breithaupt, Schmerber makes generalized judgments about the costs and benefits of a specific technology (blood tests for BAC) and constitutionalizes them.32 This is profoundly out of step with the Court’s entire Fourth Amendment jurisprudence. The Court has always focused on whether an officer’s actions were objectively reasonable under the circumstances, particularly when examining the exigent-circumstances exception to the warrant requirement.33 In Schmerber, the Court abandoned the traditional ex post, fact-intensive approach in favor of an ex ante approach operating at a high level of generality for a specific technology. This shift explains the subsequent legal confusion. Many commentators criticize the application of rigid Fourth Amendment rules in areas of technological change.34 Some commentators even claim that “the facts specific to Schmerber would not constitute an exigent circumstance today,” since warrants can be obtained telephonically or electronically and BAC diminishes at known rates.35 These technological advances demonstrate the

Id. at 770-71. Id. at 771 & n.13 (citing Breithaupt, 382 U.S. at 436). 31 Id. at 759. 32 See Rogers, supra note 24, at 1187-88 (discussing the similarities between Schmerber and Breithaupt). 33 See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (“One well-recognized exception [to the warrant requirement] applies when ‘the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’” (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978))); Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify the action.’” (quoting Scott v. United States, 436 U.S. 128, 138 (1978))). 34 See, e.g., Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 865-67 (2004) (explaining the challenges of developing Fourth Amendment rules when technology is in flux); Robert C. Power, Technology and the Fourth Amendment: A Proposed Formulation of Visual Searches, 80 J. CRIM. L. & CRIMINOLOGY 1, 66 (1989) (“[T]echnological change is constant, and the principle that is valid for today’s technology may be a laughable anachronism tomorrow.”); E. John Wherry, Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 AM. J. TRIAL ADVOC. 503, 507-09 (1996) (discussing how technological advances affect exigent circumstances).
30 35

29

See Wherry, supra note 34, at 508; see also Justin H. Smith, Note, Press One for Warrant:

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dangers of judicial rulings on particular technologies, and the need for the Court to use McNeely to narrow Schmerber to its specific facts. B. Implied Consent Laws After Schmerber, all fifty states codified their newfound power to force drivers to submit to warrantless blood tests by enacting (so-called) implied consent laws.36 Implied consent laws are “based on the principle that driving is a privilege, not a right, and in accepting a drivers’ license, an individual is deemed to have given consent to a chemical test.”37 If a driver refuses a breath or blood test under an implied consent law, then his or her license will be suspended for a period ranging from thirty days to two years, depending on the state.38 Modern implied consent laws come in three varieties: some permit forcible blood draws, some have adopted an absolute right to refuse a blood draw, and others permit forcible blood draws in limited circumstances.39 Thus, while some states have chosen to restrict the power granted to them by Schmerber, other states exercise it to the fullest. Because implied consent laws involve some degree of coercion, they raise constitutional issues under the Fifth Amendment privilege against self-incrimination. The Supreme Court considered the constitutionality of implied consent laws, “a question left open in Schmerber,” in South Dakota v. Neville.40 Under South Dakota’s implied consent law, a driver who refuses a chemical test for BAC will, after a hearing, have his or her license revoked for one year, and the refusal can be used against the defendant at trial.41 The Court upheld the statute because it merely offered drivers a difficult choice between consenting to a blood test, or having their refusal admitted at trial—both of which are less onerous than the forced blood test upheld in Schmerber.42 So, under Neville, states can force suspected drunk drivers to submit to blood tests, as in Schmerber, or use the threat of lesser sanctions, such as a suspended license or admitting a suspect’s refusal into evidence,

Reinventing the Fourth Amendment’s Search Warrant Requirement Through Electronic Procedures, 55 VAND. L. REV. 1591, 1595 (2002) (examining the effect of “telephonic and other electronic communication devices” on the exigent circumstances exception to the warrant requirement).
36 See M. Elizabeth Fuller, Comment, Implied Consent Statutes: What Is Refusal?, 9 AM. J. TRIAL ADVOC. 423, 424 & n.12 (1986) (citing statutes).

Robert B. Voas et al., Implied-Consent Laws: A Review of the Literature and Examination of Current Problems and Related Statutes, 40 J. SAFETY RES. 77, 78 (2009), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2760408/.
38 39 40 41 42

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Id. See Correll, supra note 14, at 401 & nn.115-18 (citing statutes). See 459 U.S. 553, 554-55 (1983). Id. at 559-60. See id. at 562-64.

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“to avoid violent confrontations.”43 Since the U.S. Supreme Court upheld implied consent laws, researchers have analyzed their efficacy.44 There is a consensus that refusing BAC tests under implied consent laws lowers conviction rates.45 Nonetheless, one study found no clear relationship between refusing a BAC test and the probability of conviction.46 Moreover, it is not clear whether refusal rates have any effect on crash rates, although this may be because the penalties for refusal in some states are very weak.47 While some legal commentators argue that BAC testing of drivers results in unconstitutional burdenshifting at trial,48 most empirical researchers favor much tougher penalties for noncompliance.49 Conspicuously absent from this literature is any discussion of Fourth Amendment jurisprudence and the need for the law to adapt to technological change. The Court slightly narrowed the scope of implied consent laws in Welsh v. Wisconsin, holding that refusal to consent to a breath test does not justify a warrantless entry into an individual’s home.50 Welsh also narrowed Schmerber by looking to the “gravity of the underlying offense” as “an important factor to be considered when determining whether any exigency exists.”51 Welsh nudged Schmerber back towards traditional Fourth Amendment principles by engaging in a detailed factual inquiry to ultimately conclude that the police officer’s claim of exigency was not sufficient to justify an in-home arrest under the circumstances.52 This factspecific approach to exigency, even in the face of decreasing BAC, cuts against the broader interpretation of Schmerber that generally permits warrantless, forced blood tests. Nonetheless, courts merely treat Welsh as
Id. at 559-60. See, e.g., Voas et al., supra note 37, at 77 (reviewing the literature). 45 See, e.g., T.J. ZWICKER ET AL., NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., BREATH TEST REFUSALS IN DWI ENFORCEMENT: AN INTERIM REPORT, at iii, vi (Aug. 2005), available at http://www.nhtsa.gov/staticfiles/nti/pdf/809876.pdf (analyzing BAC test refusal rates); H.L. Ross et al., Causes and Consequences of Implied Consent Test Refusal, 11 ALCOHOL, DRUGS AND DRIVING 57 (1995) (finding that refusal reduces conviction rates).
44 46 RALPH K. JONES & JAMES L. NICHOLS, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., BREATH TEST REFUSALS & THEIR EFFECT ON DWI PROSECUTION 44 (July 2012), available at http://www.nhtsa.gov/staticfiles/nti/pdf/811551.pdf. 43

See Voas et al., supra note 37, at 79. Jennifer Pariser, Note, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 N.Y.U. L. REV. 141, 144-45 (1989); E. John Wherry, Jr., The Rush to Convict DWI Offenders: The Unintended Unconstitutional Consequences, 19 U. DAYTON L. REV. 429, 469-70 (1994).
48 49 50 51 52

47

See, e.g., Voas et al., supra note 37, at 82. 466 U.S. 740, 748-54 (1984). Id. at 753. Id. at 753-54.

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creating a narrow carve out for “intrusion into the home” that is inapplicable to routine drunk driving cases governed by Schmerber.53 C. The Path Afterwards After Schmerber, the Court issued two opinions dealing with bodily searches that warrant brief discussion. In Winston v. Lee, the Court blocked a court-ordered surgery that required general anesthesia to obtain a bullet in an armed robbery investigation.54 The Court also provided further support for narrowing Schmerber by utilizing a “case-by-case approach” for Fourth Amendment reasonableness when analyzing surgical searches requiring localized anesthesia,55 In Skinner v. Railway Labor Executives’ Association, the Court upheld federal regulations requiring railroad employees to undergo drug and alcohol testing that included taking “blood, breath, and urine samples.”56 Relying on Schmerber, the Court found that mandatory blood tests do not unduly infringe on privacy or bodily integrity.57 The Court permitted breath tests since they “are even less intrusive than the blood tests,” and it also permitted urine tests because they are regularly conducted in physical examinations.58 Notably, although the Court acknowledged different levels of intrusion among the three methods of drug testing, by relying heavily on the Schmerber Court’s approval of blood tests as a technology, it did not analyze the effect of these technological differences on Fourth Amendment reasonableness. II. State and Circuit Court Reactions to Schmerber and its Progeny While the Fourth Amendment, as interpreted by the Supreme Court, sets the constitutional floor for search and seizure requirements, the overwhelming majority of drunk driving prosecutions occur at the state level.59 State courts interpreting Schmerber have split on its reach, and lower federal courts are similarly divided. This section traces the differing opinions, setting out the current state of drunk-driving law under Schmerber.

State v. Rick, No. 2010AP1521, 2011 WL 2473026, at *3 (Wis. Ct. App. June 23, 2011). 470 U.S. 753, 766-67 (1985). 55 Id. at 760. 56 489 U.S. 602, 624, 633-34 (1989). 57 Id. at 625. 58 Id. at 625-27. 59 See generally Amanda Staples, Note, Another Small Step in America’s Battle Against Drunk Driving: How the Spending Clause Can Provide More Uniform Sentences for Drunk-Driving Fatalities, 46 NEW ENG. L. REV. 353, 364-69 (2012).
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State courts have struggled with the fact that Schmerber is open to two conflicting interpretations. State courts can read Schmerber to permit warrantless, nonconsensual blood draws as exigent circumstances per se under the Fourth Amendment, or courts can interpret it to only permit warrantless blood draws under certain “special facts.”60 While state court cases considering the issue are too numerous to recount in their entirety,61 it is worth discussing a few representative cases. 1. States Interpreting Schmerber Broadly

In State v. Bohling, the Supreme Court of Wisconsin considered a routine case where a visibly drunk driver refused “a breath intoxilyzer test” and “refused to sign a consent form,” but submitted to a warrantless blood test.62 The court acknowledged the split of opinion interpreting Schmerber, and concluded that “[a] logical analysis of the Schmerber decision indicates that the exigency of the situation presented was caused solely by the fact that the amount of alcohol in a person’s blood stream diminishes over time.”63 The Supreme Court of Minnesota, adopting the view of the Wisconsin Supreme Court, characterized this interpretation of Schmerber as a “single-factor test” wherein “the rapid dissipation of blood-alcohol content caused by the body’s natural processes is a single factor that creates the exigent circumstances in the case of criminal vehicular operation to justify a warrantless blood draw.”64 In other words, the broader interpretation holds that, “from a policy standpoint,” decreasing BAC levels constitute exigency per se.65 In State v. Entrekin, the Supreme Court of Hawaii applied this principle to a strict, implied consent statute that permits police to take a forced, warrantless blood test of any driver involved in a collision resulting in
60 Dale v. State, 209 P.3d 1038, 1040-41 (Alaska Ct. App. 2009); State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993). Some states also narrowly interpret Schmerber to only permit warrantless blood draws as searches incident to arrest, rather than exigent circumstances. See, e.g., Bristol v. Commonwealth, 636 S.E.2d 460, 464 (Va. 2006) (“In Schmerber . . . the Supreme Court concluded that the seizure of the defendant’s blood was ‘an appropriate incident’ of his arrest.” (quoting Schmerber v. California, 384 U.S. 757, 771 (1966))). However, this view has largely fallen out of favor. See, e.g., State v. Rodriguez, 2007 UT 25, ¶ 50, 156 P.3d 771, 776 n.2 (Utah 2007) (“The Court apparently did not intend to ascribe legal significance to its ‘incident to arrest’ labeling of the Schmerber blood draw.” (citing Winston v. Lee, 470 U.S. 753, 759 (1985))). 61 62 63 64 65

See, e.g., Dale, 209 P.3d at 1040-41 nn.9-10 (citing cases). See 494 N.W.2d at 400. Id. at 402. State v. Shriner, 751 N.W.2d 538, 546 & n.8 (Minn. 2008). See Bohling, 494 N.W.2d at 405.

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injury without offering the opportunity to take a breath or urine test.66 The court upheld the statute, interpreting Schmerber to hold “that a warrantless extraction of blood from a driver lawfully suspected of DUI[] does not violate the Fourth Amendment even in the absence of arrest or actual consent.”67 2. States Interpreting Schmerber Narrowly

In State v. Rodriguez, the Supreme Court of Utah considered whether, under Schmerber, “dissipation of alcohol in the blood, without more, created an exigent circumstance under the Fourth Amendment justifying the warrantless extraction of a blood sample.”68 The court concluded that “Schmerber does not stand for the proposition that the loss of evidence of a person’s blood-alcohol level through the dissipation of alcohol from the body was a sufficient exigency to justify a warrantless blood draw. Rather, . . . three categories of ‘special facts’ combined to create the exigency”: (1) BAC begins to drop shortly after drinking ends; (2) it takes time to transport an injured defendant to the hospital; and (3) obtaining a warrant takes even more time.69 Returning to traditional Fourth Amendment principles, the court rejected the approach of the Wisconsin Supreme Court and held that the presence of exigent circumstances justifying a warrantless search, including a blood draw, depends on the objective totality of the circumstances.70 In State v. Johnson, the Supreme Court of Iowa interpreted a provision of Iowa’s implied consent statute that tracked the language from Schmerber for warrantless blood draws.71 The court weighed the exigency per se rule of the Wisconsin Supreme Court against the totality of the circumstances approach of the Utah Supreme Court, and concluded that “the Court in Schmerber seemed to reject the notion of per se exigency,” reaching judgment “only on the facts of the present record.”72 In State v. McNeely, currently pending before the U.S. Supreme Court, the Supreme Court of Missouri adopted the views of the Utah and Iowa Supreme Courts, and specifically rejected the approach taken by the Wisconsin and Minnesota Supreme Courts.73

47 P.3d 336, 338, 345-47 (Haw. 2002). Id. at 338-39, 346. 68 2007 UT 25, ¶ 50, 156 P.3d 771, 772 (Utah 2007). 69 See id. at 776 (citing Schmerber v. California, 384 U.S. 757, 770-71 (1986)). 70 See id. at 776-80. 71 See 744 N.W.2d 340, 342 (Iowa 2008). 72 Id. at 344 (quoting Schmerber, 384 U.S. at 772). 73 See 358 S.W.3d 65, 70-71, 73-74 (Mo. 2012) (en banc) (per curiam), cert. granted, 133 S. Ct. 98 (2012).
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B. Federal Circuit Courts Although drunk driving cases are overwhelmingly brought in state court, several federal circuit courts have weighed in on Schmerber’s reach. Unlike the divided state supreme courts, the federal circuits largely favor interpreting Schmerber broadly.74 For example, in United States v. Berry, the Sixth Circuit upheld a warrantless blood draw from an unconscious defendant on federal land because it read Schmerber to permit warrantless blood tests without consent “as an application of the exigent circumstances exception to the warrant requirement.”75 Only the Ninth and Tenth Circuits somewhat narrowed Schmerber. The Ninth Circuit held that warrantless blood draws do not violate the Fourth Amendment so long as the officer has probable cause and the procedures used are reasonable.76 However, the Ninth Circuit subsequently qualified that forcing a suspect to submit to a blood test when she “consents to a breath or urine test, and such tests are available,” violates the Fourth Amendment because the consent vitiates the exigency.77 The Tenth Circuit adopted the Ninth Circuit’s view that a suspect’s consent to a breath test renders a warrantless, nonconsensual blood test unreasonable under the Fourth Amendment.78 Unlike the Ninth Circuit, the Tenth Circuit interpreted Schmerber to require not only probable cause of decreasing BAC, but also “special facts,” much like the state courts in Utah, Iowa, and Missouri.79 Given the split among both state and federal courts on the reach and meaning of Schmerber, it is unsurprising that the U.S. Supreme Court granted certiorari on this issue.80 III. Returning Schmerber to Fourth Amendment Principles The fundamental flaw with the single-factor, per se exigency rule— notably adopted by many state and federal courts interpreting Schmerber— is that it freezes in time a legislative cost-benefit analysis of blood tests as a

74 See, e.g., United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir. 1991) (upholding warrantless blood tests of pilot as exigency under the Fourth Amendment); United States v. Reid, 929 F.2d 990, 993-94 (4th Cir. 1991) (upholding warrantless breath test because “[t]ime is of the essence when testing for alcohol in the bloodstream”).

See 866 F.2d 887, 889-91 (6th Cir. 1989). United States v. Chapel, 55 F.3d 1416, 1419 (9th Cir. 1995). 77 Nelson v. City of Irvine, 143 F.3d 1196, 1204-05 (9th Cir. 1998). 78 Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733, 742 (10th Cir. 2007) (citing Nelson, 143 F.3d at 1207). 79 See id. at 741. 80 State v. McNeely, 358 S.W.3d 65 (Mo. 2012) (en banc) (per curiam), cert. granted, 133 S. Ct. 98 (2012).
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technology conducted by the Court. While proponents of the broader reading of Schmerber claim that it “strikes a favorable balance between an individual’s right to be free from unreasonable searches and [the state’s] interest in enforcing its drunk driving laws,”81 commentators note that “[t]echnology has undergone substantial changes since Schmerber was decided in 1966.”82 On the cost side, while blood tests are still routine, they are now a much more serious invasion of privacy due to improved medical technology. With just a few drops of blood, forensic scientists can generate genetic profiles of specific individuals.83 These genetic profiles can be entered into both state and federal DNA databases, enabling the government to track not only drunk drivers, but their family members as well.84 In many jurisdictions, the government can keep DNA samples and genetic profiles obtained by police from arrestees.85 So, under the broader reading of Schmerber, the government can forcibly take a blood sample from a suspected drunk driver, enter the genetic information into a database, and track the driver and his or her family forever, even if the driver turns out to be a law abiding citizen. By focusing on blood tests as a technology, the broader interpretation of Schmerber hinders the adoption of less intrusive technological alternatives. While blood tests can raise health or religious issues,86 the Court later noted that breath tests raise no such concerns.87 Moreover, breath tests can only reveal BAC, whereas blood tests can also reveal sensitive medical information.88 Yet when faced with the opportunity to require breath tests instead of blood tests in Skinner, the Court upheld blood tests under Schmerber.89 Today, breath tests “have been almost universally accepted as reliable sources of BAC in DWI prosecutions,” and any concerns with accuracy can be solved by requiring two breath samples.90 BAC can even be determined from a person’s sweat, although

State v. Bohling, 494 N.W.2d 399, 405 (Wis. 1993). Wherry, supra note 34, at 507 & n.16. 83 Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 CALIF. L. REV. 721, 733 (2007). 84 See Murphy, supra note 15, 1331 n.36 (citing Frederick R. Beiber et al., Finding Criminals Through DNA of Their Relatives, 312 SCIENCE 1315, 1315-16 (2006)).
82 85 See, e.g., Haskell v. Harris, 669 F.3d 1049, 1050-51 (9th Cir. 2012) (upholding collection of DNA samples from arrestees under the Fourth Amendment); Murphy, supra note 15, at 1330 & nn.31-32 (citing statutes). 86 See Schmerber v. California, 384 U.S. 757, 771 (1966). 87 See Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 625 (1989). 88 Id. at 625-26. 89 See id. 90 Correll, supra note 14, at 386; see also Pariser, supra note 48, at 178-79 (discussing the accuracy of two BAC tests).

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these devices are not yet sufficiently accurate.91 As less intrusive alternative technologies become more viable, forced blood tests become increasingly unnecessary, thereby undermining the broad reading of Schmerber. On the benefit side, treating decreasing BAC levels as exigency per se is no longer a justifiable position. Under the specific facts of Schmerber and 1960s technology, it may well have been impossible to obtain a warrant in time.92 Today, a telephonic or electronic warrant can be obtained within minutes.93 For example, in Douglas County, Kansas, the State provides judges with iPads, and officers can obtain e-mailed warrants for blood samples within fifteen minutes.94 Even in jurisdictions unwilling to spend so lavishly, police officers will be hard-pressed to find a judge who does not own a cell phone.95 Given the ease of obtaining a telephonic or electronic warrant, courts and commentators are rethinking the reach of the exigent circumstances exception.96 The extent of technological change in fields ranging from communications to genomics demonstrates the folly of basing constitutional law on any particular technology. The exigency per se interpretation of Schmerber, like all “judicially created rules regulating government investigations,” has become outdated as technology changed.97 Unfortunately, this doctrinal and structural problem is largely lost on both courts and commentators. Most of the recent literature and litigation surrounding blood tests under Schmerber, including briefings currently before the Court in McNeely, turns on the technological feasibility of obtaining a warrant before determining BAC using a technique called retrograde extrapolation (i.e., testing BAC after obtaining a warrant and then estimating the suspect’s prior BAC based on alcohol-absorption rates).98 Yet, as the Utah Supreme Court correctly observed, “[w]ho has the

91 PAUL R. MARQUES & A. SCOTT MCKNIGHT, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., EVALUATING TRANSDERMAL ALCOHOL MEASURING DEVICES 1-3 (2007), available at http://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Articles/Associated%20File s/810875.pdf.

Wherry, supra note 34, at 508. See id. at 520-23; see generally Smith, supra note 35, at 1594-95 (discussing how technological advancements have expedited the warrant procedure). 94 Gregory T. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, THE KAN. PROSECUTOR, Spring 2012 at 17, 18-19, available at http://www.kcdaa.org/Resources/Documents/KSProsecutor-Spring12.pdf.
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See FED. R. CRIM. P. 41(d)(3) (permitting telephonic warrants). See, e.g., Harman v. Pollock, 586 F.3d 1254, 1266 (10th Cir. 2009) (rejecting claim of exigency based on availability of telephonic warrants); Smith, supra note 35, at 1619-22. 97 See Kerr, supra note 34, at 859. 98 See, e.g., State v. Rodriguez, 2007 UT 25, ¶ 50, 156 P.3d 771, 780 (Utah 2007) (“There exists considerable scientific literature on the subject of whether reliable conclusions about
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better science is not the question here.”99 What matters is that courts should not judge the costs and benefits of any particular technology; rather, they should make case-by-case determinations of exigency under the Fourth Amendment. In McNeely, the Supreme Court has the opportunity to cut through the morass surrounding Schmerber and return to a traditional Fourth Amendment reasonableness analysis. The emotional toll of drunk driving, “which appeals to the feelings and distorts the judgment,” drove many courts to bend well-settled principles of Fourth Amendment exigency.100 “For decades, [the] Court has repeatedly lamented the tragedy” of drunk driving,101 and deplored the “increasing slaughter on our highways.”102 Justice Blackmun wrote separately for twenty years to express his “profound personal concern about the unwillingness of our national consciousness to face up to—and to do something about—the continuing slaughter upon our Nation’s highways.”103 Chief Justice Roberts recently stated that “[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases.”104 Ironically, the Chief Justice expressed his concerns just as traffic fatalities fell to their lowest levels since the government began keeping statistics.105 By granting certiorari in McNeely, the Court demonstrated its willingness to set its feelings aside and acknowledge that technology has affected the competing interpretations of Schmerber. By narrowing Schmerber to its special facts, the Court will not only solve a doctrinal problem, but will create opportunities for states to solve the thorny technological and medical issue left open in Schmerber. If alcohol

blood-alcohol concentrations at a prior time may be extrapolated from a test performed on blood drawn later.”); Brief of Mothers Against Drunk Driving as Amicus Curiae Supporting Petitioner at 9, Missouri v. McNeely, 358 S.W.3d 65 (Mo. 2012), cert. granted, 133 S. Ct. 98 (2012) (No. 11-1425), 2012 WL 5872816, at *9 (“Retrograde Extrapolation Is Not a Valid Reason to Affirm the Judgment Below”); Correll, supra note 14, at 389-91 (discussing alcohol absorption and BAC calculation); Wherry, supra note 48, at 145-53 (discussing alcohol absorption in the human body). Rodriguez, 2007 UT 25, ¶ 50, 156 P.3d at 780. See N. Sec. Co. v. United States, 193 U.S. 197, 200-01 (1904) (Holmes, J., dissenting). 101 Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451 (1990) (quoting South Dakota v. Neville, 459 U.S. 553, 558 (1983)) (internal quotation marks omitted).
100 102 Id. (quoting Breithaupt v. Abram, 352 U.S. 432, 439 (1957)) (internal quotation marks omitted). 103 Welsh v. Wisconsin, 466 U.S. 740, 755 (Blackmun, J., concurring). 104 Virginia v. Harris, 130 S. Ct. 10, 11 (2009) (Roberts, C.J., dissenting) (regarding denial of certiorari). 105 See NHTSA REPORT, supra note 11. I again feel compelled to emphasize that DWI is a very serious and dangerous crime that should be strictly policed. Nonetheless, “the fact that drunk driving is a severe societal problem does not justify the subjugation of constitutional rights.” Wherry, supra note 34, at 505. 99

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in the bloodstream can no longer be constitutionally treated as exigency per se, some states will be forced to amend their implied consent laws.106 A viable alternative is the federal implied consent law, which could become a national model. Under the federal law, a driver suspected of being under the influence of drugs or alcohol has the opportunity to consent to a blood, breath, or urine test. If the driver refuses, then, after being advised of the consequences of refusal, the driver’s license will be suspended for one year and the refusal can be admitted into evidence in any prosecution.107 The law would be improved if it did not list specific technologies for testing BAC, which notably excludes sweat tests, since any technological list will quickly become outdated. The law should also be accompanied by regulations forbidding the collection of DNA to encourage suspects to consent. With these minor modifications, the adoption of such a law nationwide—which a narrowing of Schmerber would strongly encourage— would enable states to prosecute drunk drivers without any risk to privacy, health, or religion.

CONCLUSION
The Court seems poised to reject the broad, exigency per se interpretation of Schmerber and return blood tests to traditional Fourth Amendment principles. After oral arguments in McNeely, commentators noted that “the Justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government” and were “deeply skeptical of the never-enough-time argument.”108 This awareness of the way that technology has changed both the intrusiveness of blood tests and the nature of exigency portends well for determining exigency objectively, under the totality of the circumstances, instead of based on specific technologies in the abstract.

See, e.g., ALASKA STAT. § 28.35.035(a) (2012). 18 U.S.C. § 3118 (2012). 108 Lyle Denniston, Argument Recap: Compromise on DUI Blood Tests?, SCOTUSBLOG (Jan. 9, 2013, 2:00 PM), http://www.scotusblog.com/2013/01/argument-recap-compromise-on-duiblood-tests/.
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