Back in October 2010, Tyler McNeely was stopped for driving 11 miles over the speed limit by Missouri state police officer Mark Winder in Cape Girardeau County. The officer said he saw Mr. McNeely cross the center line three times before he stopped him.
Of course Officer Winder noted that Mr. McNeely had an odor of alcohol on his breath and red, glassy eyes. He then administered four field sobriety tests and concluded that Mr. McNeely was intoxicated. The officer took Mr. McNeely to a local hospital and asked him if he would consent to a “voluntary” blood draw. When Mr. McNeely exercised his right to say no, Officer Winder ordered hospital technicians to conduct a blood draw anyway.
There was no accident. No one was injured. And no one asked a judge for a warrant.
In a hearing before the trial court Officer Winder stated that he never asked a judge for a warrant to draw Mr. McNeely’s blood. He also testified that he had applied for warrants to conduct blood draws on previous occasions without any difficulty (a sign that many judges have all but forgotten that the Fourth Amendment even exists).
The trial court deemed the results of the blood draw inadmissible. The state appealed. The Missouri Supreme Court affirmed the ruling of the lower court so the state appealed to the United States Supreme Court. The Obama Administration then joined with the State of Missouri in arguing that there wasn’t a damn thing wrong with strapping down a motorist and jabbing a needle in his arm without a warrant.
The state argued that there were exigent circumstances that necessitated conducting a warrantless blood draw. According to the state, because alcohol dissipates in the body, it is vital that the blood be drawn as soon as possible.
Note that argument wasn’t that anyone’s life was in danger or there was any type of emergency. The argument amounted to the state would really like to have a vial of blood to test because Mr. McNeely might have been intoxicated. He was off the road by the time he was held down and the needle jabbed in his arm. The state wanted evidence that might force Mr. McNeely to plead guilty without holding the state to its burden of proof.
Anyone who’s tried a breath test or blood test case is quite familiar with the junk science that is retrograde extrapolation. Without knowing the specifics of a motorist’s physiology, a government employee sits in the witness stand and proudly tells the jury just what the defendant’s alcohol concentration was at the time of driving – even though the breath or blood sample was given hours after driving. Judges allow the testimony in either because they haven’t the slightest clue what’s going on or because they just don’t give a damn.
But there are plenty of case tried every year in which there is no breath or blood test. There are plenty of cases every year in which a jury is asked to decide whether or not a motorist was intoxicated based upon the driving facts and the roadside exercises performed on video. There were also plenty of DWI cases tried before police cars were equipped with cameras. And prosecutors got convictions in those cases.
There were no exigent circumstances in Mr. McNeely’s case. The state just wanted to make it easier on itself to obtain a conviction. And the courts have gone along with that for years. That’s why we have implied consent laws on the books. That’s why refusing a breath or blood test is held against a motorist and presented to the jury as an admission of guilt.
There are plenty of counties, cities and towns that conduct “No Refusal Weekends” with judges volunteering to
sign off on warrants review warrant applications. Judges all across this country have gladly signed off on warrants based on fill-in-the-blank form affidavits that are conclusory and don’t even spell out why the blood sought is evidence of a crime.
Officer Winder could very easily have found a judge who would issue a warrant based upon his statement that Mr. McNeely was speeding and failed a series of roadside exercises. It really is that simple. But Officer Winder couldn’t be bothered to do so. He couldn’t be bothered to comply with the requirements of a watered-down and neutered Fourth Amendment.
The refreshing thing about this case is that a trial judge and a state supreme court decided that the state had crossed the line.