by Doug Bonney, Chief Counsel and Legal Director of the ACLU of Kansas and Western Missouri
In late June 2011, I read a brief newspaper article about the Missouri Court of Appeals’ decision in State v. McNeely, which would have reversed a trial court ruling suppressing evidence from a blood alcohol test conducted on Tyler McNeely without consent and without a warrant. But, because of the novelty of the constitutional issue involved, the Court of Appeals also decided to transfer the case to the Missouri Supreme Court for further review. Because blood draws are unquestionably searches under the Fourth Amendment to the United States Constitution and because the default Fourth Amendment rule is that the government must have a search warrant before it conducts a search, I decided to ask the lawyers involved in the case for permission to submit a friend of the court brief. The lawyers agreed, and – over the course of the next month – one of my excellent summer law clerks, Alex Barrett, then heading into his second year of law school at Boston University, and I worked hard on our brief. In early August 2011, I filed our friend of the court brief with the Missouri Supreme Court on behalf of the ACLU Foundation of Kansas & Western Missouri and the ACLU of Eastern Missouri. In our brief, we supported Mr. McNeely and argued that a DWI arrest is not such an unusual or “exigent” circumstance as to justify dispensing with the warrant requirement before conducting an invasive search that requires the piercing of a person’s veins in order to obtain evidence in the form of a blood sample.
On January 25, 2012, the Missouri Supreme Court entered a thorough opinion affirming the trial court and holding – as we had argued – that a DWI arrest is not the kind of exigent circumstance that justifies a per se exception to the warrant requirement. In other words, the court held that law enforcement must ordinarily obtain a warrant before subjecting a DWI arrestee to a blood draw for the collection of blood alcohol evidence.
After the prosecutor filed a timely Petition for Certiorari, which is the way most cases get to the Supreme Court, Mr. McNeely’s lawyer, Steve Wilson, called to ask me whether the ACLU would be interested in handling the case at the Supreme Court. Mr. Wilson indicated that he was very pleased with the friend of the court brief we had filed in the Missouri Supreme Court. I told Mr. Wilson that the ACLU’s National Legal Director, Steven R. Shapiro, makes all of the ACLU’s decisions about cases we take on in the Supreme Court, and I promised to ask Mr. Shapiro about the McNeely case immediately. I then contacted Mr. Shapiro’s office, and he set up a conference call involving several ACLU lawyers. We discussed the issues involved, and Mr. Shapiro decided that the ACLU should take the case.
Because the Supreme Court has almost unfettered discretion to take or leave cases brought to it on petitions for certiorari, our first order of business was to try to persuade the Supreme Court not to take the case for review. The advantage of a certiorari denial would have been that the state court’s decision in favor of our client would have remained in place. The National ACLU Legal Department drafted a brief opposing certiorari and filed that brief on July 25, 2012. Nonetheless, on September 25, 2012, the Court granted the state’s petition for certiorari, thus setting us on the road to the United States Supreme Court.
Although the National ACLU’s Legal Department did the lion’s share of the work on the Supreme Court brief and although we played a minor role on the ACLU’s Supreme Court team, simply being involved in that process even marginally was exciting and highly educational. I was amazed and impressed with the thoroughness of Steve Shapiro’s approach to the briefing process. He left no stone unturned. For example, my office’s relatively minor assignment in the preparation process was to review over 200 law review articles dealing with warrantless blood draws and related issues. In that effort, I received invaluable help and support from volunteer lawyer Leslee Friedman, who meticulously reviewed the law review articles I had identified and did additional searches to find those articles I had missed. We also helped with the proof-reading process.
Finally, on January 9, 2013, the day of oral argument arrived. I travelled to Washington, DC, for the argument, and I happened to be seated next to the press gallery, just a few feet away from the bench and specifically Justice Sotomayor’s seat. While waiting for the fun to begin, I had the chance to meet several reporters whose work I admire, including Pete Williams of NBC News, Adam Liptak of The New York Times, and Nina Tottenberg of NPR. When the Justices entered the courtroom, the first order of business was to deal with motions for admission to the Court’s bar, and – on motion of my ACLU of Eastern Missouri counterpart, Tony Rothert – Chief Justice Roberts granted my motion for admission. After that, the Court took up Missouri v. McNeely, and the Justices grilled first the prosecutor and the Assistant Solictor General and then Steve Shapiro during an intense hour of intellectual fencing. Once the ordeal by fire was over, we left the courtroom, and Steve Shapiro and Steve Wilson held a news conference on the sidewalk outside the Court.
In a decision issued on April 17, 2013, we won! By an 8 to 1 margin, the Court soundly rejected the State’s argument that drunk-driving cases create a per se exigency that automatically takes all such cases out of the Fourth Amendment’s warrant requirement. Specifically, the Court held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The judgment of the Missouri Supreme Court is affirmed.”
The entire experience of working on this case and of being an observer and minor participant in the Supreme Court process was a great honor and professional thrill for me.