What Missouri Has Taught Us About Refusing to Accept an Unfair Status Quo
By Andrew Mishlove on January 31, 2013
There is an interesting and important case pending before the United States Supreme Court: Missouri v. McNeely. In this case, the United States Supreme Court will review the practice of forced warrantless blood draws in DUI cases.
Forced warrantless blood draws have been a standard practice in Wisconsin for decades. The practice was first allowed “in exigent (urgent) circumstances” in the 1966 United States Supreme Court Case, Schmerber v. California. Wisconsin addressed the practice in 1993, in Wisconsin v. Bohling.
A person arrested for DUI (called OWI in Wisconsin) is often asked by the police to consent to a blood draw. If the person declines to give consent, they will be charged with the separate offense of refusal to submit to a chemical test. The blood will then be drawn anyway, by force if necessary. This will be done without a warrant, or any request to a judge for a warrant. The justification is that there is not time to get a warrant before the alcohol dissipates from the blood.
For decades, we Wisconsinites (and, I must admit, Wisconsin lawyers) have accepted the practice as routine – status quo. It was rarely if ever challenged in Wisconsin, and then only on grounds of reasonableness of the specific blood draw (cleanliness, etc.) rather than on constitutional grounds.
Congratulations to those Missouri lawyers who took on the challenge and refused to be bound by accepted practice. They have shown us that the “That’s the way we do it,” method of government policy must always be questioned and often challenged. Also, congratulations to Maryland attorney Lenny Stamm for acting on behalf of the NCDD in its amicus curiae brief.
By the atmosphere of the oral argument in Washington, it seems as though the United States Supreme Court may very well rule that this practice, accepted in Wisconsin for so long, is a violation of our constitutional right to be free from unreasonable searches and seizures.
We should have been challenging it all along.
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