Reprinted with permission from Criminal Justice, Volume 35, Number 2, Summer 2020, at 27-35. ©2020 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Usually, a refusal to take an alcohol breath test ends the collection of evidence of alcohol for routine DUI stops. (DUI and DWI are used interchangeably for the purposes of this article. The focus is on all alcohol-related driving offenses.) In most jurisdictions, a refusal allows the prosecutor to argue for a negative inference against the driver, but that typically results in pleas and convictions for lesser alcohol-related offenses. Without some horrible accident or shocking behavior by the driver caught on police body-worn camera, a refusal significantly alters the prosecution of DUI cases. That is, until now.
In Mitchell v. Wisconsin, 139 S. Ct. 2525 (June 27, 2019), the Supreme Court explained that the right mix of circumstances in a DUI encounter can create an exception to the warrant requirement and allow a forced blood test of the driver (here the driver was unconscious and could not consent; Wisconsin is an implied-consent state). In Mitchell, the Court determined such circumstances did not exist in the case at bar. However, in reaching its conclusion, the Court reinforced the preference that law enforcement should first seek warrants from judges or magistrates in DUI cases. Some state and local prosecutors are seizing on this language to support a new policy of seeking warrants from judges in routine DUI cases where the driver is conscious but refuses to take the breath test. If the warrants are granted, it improves prosecutors’ ability to seek DUI convictions for greater offenses, leverage more favorable plea offers, and ask judges for longer jail sentences.
This article is aimed at igniting a policy discussion on the role of judges in granting warrants for forced blood draws, post-Mitchell. To be sure, none of the suggestions below are required as a matter of law. Some of these recommendations may even be perceived as provocative or difficult to administer. However, given the serious nature and consequences of forcibly taking a person’s blood for evidence, critical and novel thinking is warranted. First, the judge should use an evidentiary standard greater than the mere probable cause required by law because blood draws are fundamentally invasive and eviscerate traditional notions of privacy. Second, judges should prescribe the manner of collection, retention, and destruction of the blood seized to prevent misuse of samples, including DNA data collection. Third, judges should keep demographic data on drivers and determine if there is a pattern or practice that violates notions of fundamental fairness and equal protection, especially for people of color and other historically targeted groups.
Probable Cause Alone Is Not Enough
Judges should press officers and determine if the basis for the warrant is clear, specific, and necessary.
Current State of the Law
Probable cause is rooted in the American criminal justice system and is the bedrock standard for judges approving search warrants. The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” The Supreme Court has made it infinitely clear that a blood draw from a DUI suspect is a search and invokes the protections of the Fourth Amendment. Id. (educating on fundamental Fourth Amendment safeguards). However, probable cause in the context of a DUI blood draw can be a little harder to pin down because differences in state law tiptoe around what is acceptable, what should be considered, and how implied-consent laws play a role in the ability to refuse a blood draw.
In some jurisdictions, blood draws taken prior to arrest, without a warrant, may be admissible if there is probable cause to arrest and the blood sample is extracted in a medically acceptable manner. In other jurisdictions, the mere belief that alcohol dissipates quickly in the blood system either serves as probable cause or is an automatic exception to the warrant requirement. Still other jurisdictions have adopted a “clear indication” standard, whereby probable cause exists when there is a clear indication that the blood draw would disclose relevant information. This can be especially troublesome when the driver is conscious and refuses to willfully submit to a blood draw.
Recently, the Supreme Court wrestled with the constitutionality of implied consent for blood draws in the absence of express consent. In Mitchell, the Court had the opportunity to strike down Wisconsin’s implied-consent law, but instead chose to expand and “clarify” exigency. The natural metabolization of alcohol in the bloodstream, without more, is not enough to justify warrantless blood draws under the exigency doctrine. Id. at 2540 (Thomas, J., concurring) (explaining that imminent destruction of evidence, without more, is not considered “exigent“). The Court also undercut its earlier holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. See generally id. In Birchfield, petitioner challenged the constitutionality criminalizing his blood test refusal. Id. at 2170. The Court was careful to point out that “[b]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. at 2183. This was cautious, reaffirming, and instructive language to judges and magistrates that at the core of their decision-making process in blood draw warrant applications should be an acknowledgment that forced blood draws are fundamentally invasive and less desired.
Omitting this same type of cautious language in Mitchell is problematic because it allows judges and magistrates to assign blood draws the same basic probable cause scrutiny as more routine search warrant requests that are less invasive. It also allows law enforcement to test the waters regarding how basic the articulation of probable cause needs to be in a search warrant for forced blood draws. Thus, Mitchell reared messy, unintended consequences: more search warrants for blood in ordinary, nonexigency DUI scenarios.
Blood Draws Are Intrusive, Warrant or Not
Undoubtedly, there is a spectrum of how intrusive a body search can be in any given situation. On the less-intrusive end, there are searches like fingerprinting. Generally, courts have determined that fingerprinting is a routine part of the booking process. It is justified by the government’s legitimate interest in determining the identity of the person arrested, whether he/she/they are wanted elsewhere, and in ensuring identification in the event the defendant flees prosecution.
As you move toward the more intrusive end of the spectrum, you will find body searches like swabbing the arrestee’s hands with a chemical substance, taking scrapings from under the arrestee’s fingernails, taking a saliva sample from the arrestee, giving the arrestee a breathalyzer examination, and taking dental impressions. Anchoring the most-restrictive end is forced blood draws. They may be discreet and painless procedures, but they remove parts of a body for use in criminal investigations. Amari Hammonds, Taking Blood Evidence for Granted: McNeely and Birchfield’s Unintended Consequences (Apr. 25, 2019), https://ssrn.com/abstract=3378201 or http://dx.doi.org/10.2139/ssrn.3378201.
Essentially, any bodily intrusion is a search—an invasion of “cherished personal security” subject to Fourth Amendment scrutiny. Maryland v. King, 569 U.S. 7 (2013) (citing Schmerber v. California, 384 U.S. 757, 770 (1966); Cupp v. Murphy, 412 U.S. 291, 295 (1973)). Blood draws are compelled physical intrusions beneath a person’s skin, into their veins, to obtain a sample of their blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy. Missouri v. McNeely, 569 U.S. 141, 147 (2013) (citing Winston v. Lee, 470 U.S. 753, 760 (1985)) (internal citations omitted).
Judges Should Weigh Whether the Search Warrant Is Clear and Specific
For judges reviewing forced blood test warrant applications (in this context, the term “forced blood test” means instances where the driver refuses to submit to an alcohol concentration test but is required to do so by court order), there is no existing guidance as to what constitutes probable cause. Unlike most other search warrant applications, these often arrive at 2:00 a.m. when the judge is half asleep and bleary-eyed. They must be decided quickly because of the likelihood of the alcohol’s dissipation in the bloodstream. It is in these tired moments that judges must be the most vigilant; they must be able to trust that they are not aiding in unconstitutional overreach. This is especially true as eWarrants can significantly reduce the time reviewing warrant applications to a few minutes.
This is a real-life tension between the intrusion of a person’s most private and sacred data—blood—and the police’s ability to collect evidence. As such, judges must ask more questions, obtain better information, and scrutinize the totality of the situation when reviewing DUI blood draw applications. Considering Mitchell, the likely increase in requests for blood draw warrants could result in the rubber-stamping of a collection method that routinely invades privacy. Judges should press officers and determine if the basis for the warrant is clear and specific. That is, is it clear that this intrusion of privacy in collecting blood is necessary? In reviewing the application for a warrant, judges also should consider additional facts such as whether the individual has refused, whether there are less-intrusive alternatives to the collection of evidence at the scene, and whether this intrusive method is the only viable method. This is not merely a routine collection of evidence for the police. These warrants should be issued sparingly (especially in cases of mere breath test refusal) and scrutinized at a higher level because of the privacy implications.
Undoubtedly, judges are focused on safety to their communities, and DUI cases can be some of the most public, disturbing, and grave disruption of that safety. However, there is no evidence that limiting blood draws would interfere with the regulation of safe roads. In most routine DUI stops, the officer has already, through the stop itself, made roads safer. Additionally, blood draws present a natural waiting period that gives officers opportunity not only to obtain warrants, but to take the suspect to the station. Mitchell v. Wisconsin, 139 S. Ct. 2525, 2548 (2019) (Sotomayor, J. dissenting) (police officers may have time to obtain warrants before a blood alcohol concentration (BAC) drops/evidence dissipates “significantly”). Although officers are being trained in phlebotomy to obtain quicker blood results, roadside blood tests are still less common because of the safety risk. Police officers also have less intrusive and/or violent alternatives to evidence collection. Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016). The Court has not stated whether Mitchell also applies to blood tests for drugs or whether law enforcement would prefer to use blood for drug tests. With the trend toward warrant application for refusal and training in police phlebotomy, blood searches for drugs may be a significant aim of law enforcement.
Manner of Collection, Retention, and Destruction of Seized Blood
Judges should prescribe the manner of collection, retention, and destruction of blood seized to prevent misuse of samples, including DNA data collection. Before granting a forced blood draw warrant, judges should know how the officer plans to collect, retain, and later destroy the blood. Restrictions for use of the blood should be required in every DUI case to ensure the blood is not being compromised or used for unlawful purposes. The expectation is that an officer obtaining blood in a DUI investigation will not go beyond the scope of BAC testing. Nor does it seem reasonable to store blood for longer periods of time than necessary for collecting BAC data. Therefore, jurisdictions should promulgate rules requiring law enforcement to either facilitate the return of blood samples to each criminal defendant after BAC testing is complete or outline rules and policies for destroying blood samples upon the conclusion of BAC testing.
Most police officers who handle DUIs are well-intentioned, hard-working, and focused on getting it right. However, public perception that blood evidence may be stored and retained for an entirely different purpose other than as DUI evidence is a legitimate concern. Cases like Maryland v. King, 569 U.S. 435 (2013), helped bolster public fears. In King, the defendant’s cheek swab obtained as part of a routine booking procedure in an assault charge was ultimately used to convict him of rape in a cold case. The Maryland Court of Appeals struck down portions of Maryland’s DNA Collection Act as unconstitutional and set Mr. King’s rape conviction aside. In a 5-4 decision, the Supreme Court reversed, finding that taking and analyzing a cheek swab was like fingerprinting and photographing and thus reasonable under the Fourth Amendment. Id. How can people trust that their blood will not be used for more than the present DUI investigation? Blood samples for BAC tests should be stored in a similar manner as specimen evidence. The American Bar Association (ABA) Standards for Criminal Justice DNA Evidence recommends that jurisdictions promulgate written rules regarding sample retention. Am. Bar Ass’n, ABA Standards for Criminal Justice: DNA Evidence (3d ed. 2007), https://tinyurl.com/rljk4v4. The care and caution in DNA retention should also be given to blood samples for BAC. The judge’s role in this assurance should be proactive because he/she/they are allowing such a procedure to occur. Judges are the gatekeepers—and it starts with granting or denying.
Monitoring Who Is Being Forced to Give Blood Samples
Judges should informally keep demographic data on the drivers for whom they grant applications and determine if there is a pattern or practice that violates notions of fundamental fairness and equal protection, especially for people of color. In 2016, nearly two-thirds of Americans believed that police commonly “stop motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” Emily Ekins, CATO Inst., Policing in America: Understanding Public Attitudes Toward the Police. Results from a National Survey (2016). For example, Philando Castile was stopped nearly 50 times for minor violations before he was shot and killed by a police officer in suburban Minnesota in 2016. In many of these stops, there was no moving violation at all. Evidence suggests that black drivers are far more likely to be pulled over for minor, nonspeeding violations than white drivers, who are primarily pulled over for excessive speeding and other less ambiguous violations. Jonathan Blanks, Do Police Treat All Races Equally?, CATO Inst. (Oct. 1, 2019).
This statistic alone is an indicator of how many times drivers of color—especially black males—are stopped by police daily. Given the number of stopped and searched people of color, there will invariably be a disparate impact of warrantless blood draws on that population.
Preserving demographic data on patterns of blood collection in DUI cases is crucial to pinpointing patterns of unequal application of the warrant requirement and exigent circumstances. It is also important that judicial officers do what they can to facilitate trust and transparency between the criminal justice system and marginalized communities of color.
Blood draws are inherently invasive. Police should obtain warrants for every blood draw—period. This article suggested ways in which judges should handle these warrant applications because of the nature and consequences of taking a person’s blood for evidence. First, blood searches should be restricted. Warrants should be required for every blood draw even in cases of refusal. Exigent circumstances should not be applicable, because of both the difficulty of application and the potential expansion to virtually any DUI scenario. These restrictions are necessary because blood draws are fundamentally invasive and eviscerate traditional notions of privacy.
Second, judges should prescribe the manner of collection, retention, and destruction of blood seized to prevent misuse of samples, including DNA data collection, because of the inherent risk to people’s safety and privacy, and the potential unlawful use of people’s blood.
Third, judges should keep demographic data on drivers and determine if there is a pattern or practice that violates notions of fundamental fairness and equal protection, especially for people of color. Even through the issuance of blood draw warrants, building trust between marginalized communities and the criminal justice system should be a societal aim.
Again, current law does not compel judges to implement these practices. While some observers may view these prescriptions with a jaundiced eye, they all are designed to further the fundamental safeguards of the Fourth Amendment, fit within the evolving landscape of equal protection, and be easily managed with perfunctory technology. The rights set forth in the US Constitution are the floor, not the ceiling, of protections to be afforded to people. Judges are, and remain, the keys to ensuring those protections in both letter and spirit.
Originally published in Criminal Justice, Volume 35, Number 2, Summer 2020, at 27-35; reprinted in GPSolo eReport, Volume 10, Number 1, August 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association Criminal Justice Section or the Solo, Small Firm and General Practice Division.