Drawing on the Constitution: An Empirical Inquiry into the Constitutionality of Warrantless and Nonconsensual DWI Blood Draws

State v. McNeely, 358 S.W.3d 65 (Mo. 2012)(per curiam) I. INTRODUCTION In the early 1990s, approximately 50% of the total number of traffic fatalities that occurred in the United States were alcohol-related. (1) In response to this high percentage, the National Highway Traffic Safety Administration of the United States Department of Transportation recommended to Congress that all states set .08 blood-alcohol content (BAC) as the threshold for driving while intoxicated (DWI) offenses. (2) This was after Congress already encouraged, and in practical effect mandated, (3) states to set their minimum drinking age to 21 years old by awarding federal subsidies to states that did so. (4) Taking these actions into account, it is obvious that Congress has expressed a clear intention "to combat this carnage" caused by drunk driving. (5) However, the Fourth Amendment's evidentiary limitations inherently conflict with this goal. (6) While the Fourth Amendment may be in tension with certain aspects of law enforcement, this conflict is particularly contentious because Supreme Court precedent on this matter has largely left "questions attendant to bodily evidence ... to the states." (7) Accordingly, what evidence may be used to convict an alleged drunk driver for DWI has long been an area of debate. A variety of techniques and devices have been made available to law enforcement officers to apprehend an alleged intoxicated driver, but whether those methods have provided courts with admissible evidence is another question. (8) Of all these methods, (9) the blood draw has been widely heralded as the "gold standard of DWI evidence" because it is the least capable of being corrupted by errors on the part of the person administering the test. (10) This widespread "primary authority given blood tests over all other forms of assessing intoxication has made the need for clear constitutional guidance all the more important." (11) More specifically, exactly when a law enforcement officer can conduct a blood draw on an alleged drunk driver has been a hotly contested issue in recent years. (12) In Schmerber v. California, (13) the Supreme Court of the United States addressed when a police officer may order a blood draw on an alleged intoxicated driver without a warrant or the driver's consent. (14) In that case, the Court held that the circumstances presented "special facts" that justified the challenged warrantless and nonconsensual blood draw. (15) However, the Court's ambiguity as to what constituted "special facts" has generated a great deal of confusion. (16) Courts have interpreted Schmerber in two distinct ways. Some have stated that the rapid dissipation of alcohol in an individual's bloodstream without more constitutes a "special fact" justifying such a blood draw. (17) Others have held that more "special facts" are required for such a blood draw to be constitutional under the Fourth Amendment. (18) In State v. McNeely, (19) the Supreme Court of Missouri took its turn at interpreting Schmerber and stated that the rapid dissipation of alcohol in an individual's bloodstream by itself is not a "special fact" justifying a warrantless and nonconsensual blood draw on an alleged drunk driver. (20) Like many other courts, the Supreme Court of Missouri largely relied on interpreting the text of Schmerber to justify its decision. This Note assesses how courts have interpreted the text of Schmerber to justify conclusions while determining whether policy justifications support any particular interpretation. (21) It then considers whether empirical data may favor one interpretation of Schmerber by examining the dissipation rate of alcohol from an individual's bloodstream, the average time it takes a law enforcement officer to obtain a warrant for a blood draw on an alleged intoxicated driver, and the reliability of retrograde extrapolation. (22) This Note confirms that neither the text of Schmerber nor the policy underlying its holding clearly favors a particular interpretation on the constitutionality of warrantless and nonconsensual blood draws on an alleged drunk driver. …