When Charles Rothfeld approaches the bench to defend this position, Justice Stephen Breyer—who begins in the morning with a cheerful smile and closes it out with a demoralized rictus—corners him. Rothfeld has the unenviable position of arguing against both blood tests and breath tests. Blood tests, Breyer notes, involve jabbing a needle into a vein and are vastly more invasive than breath tests, which involve blowing into “a little box the size of a cellphone. It has a little straw on the end, and you breathe into it.” (As a demonstration, Breyer loudly blows air onto his microphone, which startles everybody in the courtroom.)
Rothfeld must defend all his clients, so he has to say that a breath test is “a significant intrusion on personal integrity” and a search of “deep-lung air,” which is apparently very intimate air indeed. But it’s pretty clear that the court will write off the Breathalyzer issue as a reasonable search incident to arrest, leaving only the blood test on the table.
On this issue, it looks like Rothfeld has an evenly divided court. Chief Justice John Roberts, who’s sometimes amenable on privacy rights, is pretty sure that anybody who refuses a chemical test is definitely sozzled. “If you’re not drunk, you’d be happy to be tested, right?” he asks Rothfeld, who looks fleetingly aghast. But when Rothfeld sits down and Thomas McCarthy steps up to defend warrantless testing, everything changes. Ever wondered what it felt like on the Titanic when that iceberg ripped the hull? The sensation, I suspect, was quite similar to the horror that rippled through the courtroom when McCarthy begins to defend his position.
McCarthy really only has one job: to explain why states should be allowed an exception to the Fourth Amendment just because they decline to create an insta-warrant regime. Justice Samuel Alito notes that, unlike New York, North Dakota doesn’t have “night court going all the time.” McCarthy agrees: “There aren’t judges or magistrates on duty all the time in North Dakota,” he tells Alito.
There are judges “on call, reachable somewhere, typically by phone, but it often takes a while, especially in rural jurisdictions.”
Ever wondered what it felt like on the Titanic when that iceberg ripped the hull?
OK, Breyer says—so how long? In Wyoming, cops can obtain electronic warrants in five minutes. In Montana, it takes 15 minutes. How long in North Dakota?
McCarthy says the process can take up to an hour in populous districts and even longer in rural ones.
“Why is it harder to get somebody on the phone in rural areas than in big cities?” Justice Anthony Kennedy asks. “I would think people in the rural areas were sitting waiting for the phone call.” In other words, judges in rural areas are frequently less busy than those in cities, at least according to Kennedy. Shouldn’t they be available to answer a call from a cop?
McCarthy defends North Dakota, insisting that it has a “lack of resources and manpower.”
“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”
Justice Elena Kagan jumps in.
“I think what people are asking you,” she says patiently, “is to try to get some sense of the real-world harms here.” Imagine a system where cops could get a warrant within 10 or 15 minutes, Kagan offers. “What would be the problem with just relying on a system like that?”
McCarthy begins to talk about Fourth Amendment complications, and Kagan butts in.
“But I’m asking about your practical