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Last week, the United States Supreme Court heard oral arguments in Missouri v. McNeely, a case involving whether police officers can take blood draws, without a warrant, of those suspected of drunk driving. This case stems from Tyler McNeely’s DWI (Missouri’s DUI or OVI)conviction which arose when he was stopped for speeding, officer’s claim he was intoxicated, asked him to submit to field sobriety tests which they claimed he failed (surprise surprise) then asked him to submit to a portable breathalyzer (the results of which are not admissible in court, in Ohio at least, not sure about Missouri). At any rate, McNeely refused to the portable breath test, at which point the officers arrested him and took him to the hospital to have his blood drawn for a blood sample, all while he was in handcuffs. A warrant stating that there was probable cause that McNeely was impaired was not obtained.

The Missouri Supreme Court stated that the blood draw was unconstitutional and overturned his conviction. The State of Missouri appealed, and that’s how the parties ended up in front of the U.S. Supreme Court for oral argument.

The Fourth Amendment to the United States Constitution provides as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and n0 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.”

The Fourth Amendment is important. So when at the oral argument, the lawyers on behalf of the State of Missouri seemed to hang their hat on the argument that there would never be enough time to get a warrant before alcohol in a person’s bloodstream would dissipate,the members of the Court were not impressed. In that special way that he has, Justice Scalia immediately asked, “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?” (That opens up a whole new line of questions such as the fact that a suspect does have a right to refuse any and all tests, field sobriety and breathalyzer). But Scalia’s point certainly has truth to it: forcing a suspect to give a blood sample is incredibly invasive and because it is a showing of force and is invasive, should not be left solely to police discretion (That type of discretion doesn’t usually end well, just sayin’).

Enter a neutral intermediary: a warrant! By a judge who believes there is probable cause, not just a street cop looking to force suspects into blood draws. Now like nearly everything in the law, there are exceptions and exceptions to the exceptions. So there warrant requirement under the Fourth Amendment has an exigent circumstances exception, which basically that the situation calls for urgency and there is a reasonable belief by law enforcement that waiting for warrant will cause loss of life or property (think officers in hot pursuit of a suspect who runs in a house with a gun, think persons flushing drugs down the toilet).

So the Court has to do a balancing act to make sure that the suspect’s rights are protected, as are the legitimate governmental interests. So the Court’s questions and comments centered around a compromise of sorts: the gist of it seeming to be that a blanket allowance of officers being able to obtain warrantless blood draws being unreasonable, but that there may be situations where exigent circumstances could permit it.

One of the best quotations in my opinion is Justice Scalia’s comment in response to government lawyer Nicole A. Saharsky who stated that “every moment counts” when police are investigating drunk driving. Scalia responded, ” Once we say police don’t need a warrant, the game’s over.” I couldn’t agree more. Talk about a SCARY slippery slope. This case isn’t just about blood draws in suspected DUI cases, it’s about searches in general, of our cars, our houses, our persons, and this case, if decided the way Missouri would like it, could create dangerous precedent that would virtually erode the protections afforded by the Fourth Amendment.

Thankfully the Court isn’t buying the government’s arguments, but this is still an important case to watch. Even a compromise of sorts has huge ramifications on the Fourth Amendment.