PA Cops Drop Breathalyzer, Will Use Blood Tests for DUI Suspects

If  you’re planning on driving on I-95 or the Schuylkill Expressway this weekend, you might want to take extra care to stay inside the lines.

Earlier this month, a judge in Dauphin County ruled that the Intoxilyzer 5000EN Breathlyzer—commonly used by state police—is unreliable. The ruling led to the dismissal of breathalyzer evidence in 20 cases and could undermine prosecutions in thousands of others across the state.

So, for the time being, the Pennsylvania State Police have decided to forego breathalyzers altogether and opt for a good old-fashioned stick in the arm instead. At least for the foreseeable future, if you’re pulled over by a state trooper on suspicion of driving intoxicated, they’ll be gunning for your blood. Of course that doesn’t mean you have to give it to them; but don’t expect a get-out-of-jail-free card. Cops don’t take kindly to motorists who refuse to submit to blood alcohol tests. But more importantly, by refusing to submit to a blood test you are accepting punishment before you’ve even been convicted of a crime. That’s because under the state’s implied consent law, you gave the cops permission to test your breath, blood and/or urine for chemical intoxicants the moment you turned the key in your ignition.

If you decide to revoke your consent, you’ll automatically lose your license for a year, and the state will throw the book at you in court by charging you with the highest-level DUI offense allowable under the law. (There are three categories of DUI in Pennsylvania, with ascending punishments, ranging from “general impairment” to falling-down drunk.) What’s more, your refusal to submit to a blood test will be used as evidence against you.

Suspects are not entitled to legal representation before or during the test, and appeals courts have even upheld the legality of taking a blood sample from an unconscious motorist without their knowledge and without a warrant.

Driving may be a privilege, but I would argue that choosing to keep your blood inside your body where it belongs is a right.  And assuming I’m correct, can a state issue a blanket proclamation negating that right? We may soon find out.

A case currently before the Supreme Court could throw the notion of implied consent out the window—at least where blood tests are involved. On January 9th, SCOTUS heard oral arguments in the case of Missouri v. McNeely, which questions the constitutionality of forcing a motorist to submit to a blood test without a warrant.

The case originates in Missouri—which, like Pennsylvania, has an informed consent law—and involves the arrest of a repeat-drunk driver named Tyler McNeely. In 2010, McNeely was pulled over for speeding and, after a police officer detected the smell of alcohol on his breath, was walked through several field sobriety tests; he failed all of them. After he refused to submit to a breathalyzer test, a Missouri state trooper drove McNeely to a local hospital where a technician drew blood against his will while he was handcuffed. McNeely’s BAC was .154 percent, above the legal limit, and he was charged with driving while intoxicated.

On appeal, the trooper said he decided to forgo a warrant because, under informed consent, he didn’t think he needed one.  The Supreme Court of Missouri disagreed and tossed the evidence on the grounds that taking McNeely’s blood without his current consent or a warrant violated his Fourth Amendment rights against unreasonable search and seizure.

In their motion to the U.S. Supreme Court, Missouri officials are claiming a so-called “exigency exception” on the grounds that alcohol leaves the system so fast that taking the time to get a warrant  means “certain destruction of blood-alcohol evidence.” Tests show that in as little as an hour, a legally intoxicated person can metabolize enough alcohol to pass a BAC test. For overtaxed police forces, informed consent gets around that problem by forcing drivers to sign away their Fourth Amendment rights before they ever get in a car.

That might be palatable in cases where a breathalyzer is used, but when it comes to something as intrusive as breaking a person’s skin, it’s not clear SCOTUS is buying it.

During the January 9th hearing, a number of justices took issue with the notion that the need for expediency justifies the dismissal of a person’s Constitutional right to not have their body violated without due process. Conservative Justice Antonin Scalia seemed particularly uncomfortable with the notion that informed consent always trumps the need for a warrant, and he made it clear that he thinks drawing blood needs to be held to a higher legal standard than a breathalyzer test. “What is reasonable for sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon,” he remarked.

If the Supreme Court rules that your blood is indeed protected by the Fourth Amendment (and there’s a pretty good chance that could happen), it’s only a matter of time before someone challenges state laws, like Pennsylvania’s, that compel a large segment of the population to forfeit that protection before they get behind the wheel.

My advice to Pennsylvania: Get those breathalyzers fixed ASAP.