In the News January 10, 2013

Mike Correll Discusses Legal Implications of DUI Blood Testing Without Consent

Mike Correll, an associate in the firm’s Litigation & Trial Practice Group, was quoted by NBC News and the ABA Journal regarding a Fourth Amendment case recently argued before the Supreme Court that questions the constitutionality of blood testing DUI suspects without their consent.

“It comes down, basically, to are you going to see blood draws every single time someone gets pulled over for a DUI,” Correll told NBC News.

“Because drunk-driving stops are an every-day occurrence, it’s going to effect a broad area of society…this may be the most widespread Fourth Amendment situation that you and I are going to face for the foreseeable future,” he added.

Referencing Schmerber v. California, where it was argued that a person’s blood is protected under the Fourth Amendment because search warrants are ordinarily required for searches of dwellings—absent an emergency—and could be required where intrusions into the human body are concerned, “The court’s decision is likely to come down to one simple question…did Schmerber create a blanket exception to the Fourth Amendment or didn’t it?” Correll said.

“What does the court indicate the emergency is? Is the emergency the inability to get a warrant in a set period of time, or is the emergency that the blood alcohol is dissipating?” he asked.

“There was a time when the cops pulled you over for drinking and driving, and they would say, ‘How far is your house?’ Now, they just arrest you,” Correll explained to ABA Journal.

Correll noted that many states have enacted statutory limitations on blood draws of DWI suspects, such as by restricting the use of force, outlining who may conduct such a compelled draw or requiring a warrant. He agrees that blood evidence is the most reliable DWI testing method, but he “parts company” with the state on the need for a warrant.

“What the state is saying is we know there is going to be this emergency every weekend…and we know we have several hours to obtain the probative evidence,” he said.

“If [states] know [they] are going to have DWIs every weekend, why not have someone on call to take warrant applications?” Correll suggested.
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