Recap of DUII-blood test oral argument

This wikilog article is a draft, it was not published yet.

by: Ryan • January 9, 2013 • no comments

The recap by SCOTUSblog is interesting, but I confess I have had no time to work out the consequences for Oregon if the compromise that seems likely becomes part of the 4th Amendment..

Here's the link. And here's a quote that's particularly relevant to OSC's holding in Machuca:

Those, of course, are the more liberal members of the Court, so their comments were hardly surprising. But Justices Scalia :and Kennedy took up some of the same refrains, when the federal government lawyer, Nicole A. Saharsky, began her argument by emphasizing that “every moment counts” when police want to get evidence to support a drunk-driving prosecution. “Once we say police don’t need a warrant,” Scalia commented, “the game’s over,” even if it is possible to get a warrant by improved police and judicial procedures. And both he and Kennedy reacted positively to the idea, suggested by Justice Ginsburg, that if police try to get a warrant but that turns out to take too long — say, more than a half-hour — then no warrant would be needed.

Justice Alito then suggested that the constitutional outcome should depend upon “the practicality in each jurisdiction,” so :that where the process of issuing warrants moves quite rapidly, officers should not be allowed to proceed to order blood samples without a judge’s approval. When Saharsky commented again that blood alcohol evidence is always in the process of being destroyed, and added that the Court had never made Fourth Amendment rules depend upon the practices in a given jurisdiction, Kennedy bluntly retorted that courts “make that judgment all the time; it is quite incorrect to say that we don’t look at the time factor."