Blood Tests and Bad Lawyering
The Supreme Court finds unity in the face of bumbling attorneys and a tough Fourth Amendment case.
BY Mark Joseph Stern
The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.
Wednesday’s case, Birchfield v. North Dakota, involves laws that impose criminal penalties when motorists suspected of drunk driving refuse to take a “chemical test”—usually a blood or breath test. North Dakota, Minnesota, and 10 other states have passed such measures to avoid pesky issues like obtaining a warrant before sticking a needle in a driver’s arm or a tube in her mouth. Danny Birchfield, who was arrested for refusing to take a blood test, argued that these laws violate the Fourth Amendment, which typically requires a warrant before police can conduct a search. North Dakota says motorists give consent to chemical tests when they drive in the state. Birchfield says legally mandated consent is no consent at all.
One problem for Birchfield is that he was definitely drunk when he was arrested—after driving into a ditch, attempting to drive out of it, then emerging from his car reeking of booze. His fellow petitioners in this consolidated case were similarly sloshed. Steve Michael Beylund was pulled over after
nearly hitting a stop sign, then halting his car on the road; when a cop approached the car, he saw an empty wine glass in the cup holder. William Robert Bernard was drunkenly attempting to pull a boat out of a river with a truck—in only his underwear—when a witness called the cops on him. These fellows are not exactly model defendants.
They do, however, seem to have the Constitution on their side. A few terms ago, the court found that police generally require a warrant before drawing blood from a driver. Blood tests, the court reasoned, are a highly invasive type of search. In the old days, warrantless blood tests may have been a necessary evil, because a driver’s blood alcohol level could fall while the cops secured a warrant. But today, thanks to technological developments like electronic warrants—which let officers ask judges for warrants quickly and remotely—that concern has largely faded. In one sense, Birchfield boils down to a simple inquiry: If cops can get an insta-warrant before drawing a driver’s blood, shouldn’t the Fourth Amendment mandate that they do? continued on pg. 16