Drunk Driving and Mandatory Blood Test - North Dakota's lawyers got laughed out of the Supreme Court

[Arkain2K]

Summary: North Dakota sent a pair of bumbling attorneys to the Supreme Court to fight the Fourth Amendment over mandatory blood test, and got thoroughly wrecked.

This comedy of errors is incredible. Here's a few excerps, but you must read the entire play-by-play to enjoy it all.

Blood Tests and Bad Lawyering

The Supreme Court finds unity in the face of bumbling attorneys and a tough Fourth Amendment case.

The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team.

On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

In the old days, warrantless blood tests may have been a necessary evil, because a driver’s blood alcohol level could fall while the cops secured a warrant. But today, thanks to technological developments like electronic warrants—which let officers ask judges for warrants quickly and remotely—that concern has largely faded. In one sense, Birchfield boils down to a simple inquiry: If cops can get an insta-warrant before drawing a driver’s blood, shouldn’t the Fourth Amendment mandate that they do?

Chief Justice John Roberts, who’s sometimes amenable on privacy rights, is pretty sure that anybody who refuses a chemical test is definitely sozzled. “If you’re not drunk, you’d be happy to be tested, right?” he asks Rothfeld, who looks fleetingly aghast.

But when Rothfeld sits down and Thomas McCarthy steps up to defend warrantless testing, everything changes. Ever wondered what it felt like on the Titanic when that iceberg ripped the hull? The sensation, I suspect, was quite similar to the horror that rippled through courtroom when McCarthy begins to defend his position.

McCarthy really only has one job: to explain why states should be allowed an exception to the Fourth Amendment just because they decline to create an insta-warrant regime.

Justice Samuel Alito notes that, unlike New York, North Dakota doesn’t have “night court going all the time.” McCarthy agrees: “There aren’t judges or magistrates on duty all the time in North Dakota,” he tells Alito. There are judges “on call, reachable somewhere, typically by phone, but it often takes a while, especially in rural jurisdictions.”

OK, Breyer says—so how long? In Wyoming, cops can obtain electronic warrants in five minutes. In Montana, it takes 15 minutes. How long in North Dakota?

McCarthy says the process can take up to an hour in populous districts and even longer in rural ones.

“Why is it harder to get somebody on the phone in rural areas than in big cities?” Justice Anthony Kennedy asks. “I would think people in the rural areas were sitting waiting for the phone call.”

In other words, judges in rural areas are frequently less busy than those in cities, at least according to Kennedy. Shouldn’t they be available to answer a call from a cop?

McCarthy defends North Dakota, insisting that it has a “lack of resources and manpower.”

When McCarthy’s time runs out, he is replaced at the lectern by Kathryn Keena, who is, to everybody’s astonishment, even worse than McCarthy.

Keena begins by summarizing her autobiography. “Having grown up 20 miles from the North Dakota border and attending college in the Fargo-Moorhead area,” she tells the justices, who look visibly confused and irritated, “I’m very familiar with what the realities are in the rural area. And yes, it may be possible to get a search warrant in every case. But if that’s what this court is going to require, in Minnesota, we are going to be doing warrants for blood draws in every case. And that is not what this court wants.”

A majority of justices spent the last several minutes suggesting that, in fact, warrants are exactly what the court wants. Everyone looks befuddled.

“What?!” Breyer says. “Why??”

And it goes on like this for 10 excruciating minutes, during which Keena accidentally reveals that cops bring drivers to stations for chemical tests anyway—meaning they could easily request warrants on the ride there.

When Sotomayor gives Keena a brutally frank summary of her untenable position, Keena does not respond.

“Justice Sotomayor is assuming that you’re going to lose,” Alito quips, filling the silence. “So she wants to know what your reaction is to that.”

All the justices laugh hysterically, including Sotomayor, who looks down the bench at Alito with a fond grin. Keena stays absolutely stone-faced.

“I don’t like it,” she says quietly. “I don’t like it one bit.” She then quietly retreats.

Following Keena’s and McCarthy’s brain-melting performances, it looks like the justices will forge a compromise, requiring a warrant for a blood test except perhaps in a few exceptional circumstances. That is likely the correct outcome: Most Americans—and, for that matter, the framers of the Fourth Amendment—would probably be alarmed to hear that cops can draw drivers’ blood without judicial oversight in many states.

http://www.slate.com/articles/news_...ng_case_looks_good_for_the_drunk_drivers.html

 

[uncommon]

Maybe we should send those lawyers back and have them argue FOR civil asset forfeitures, then the supreme court can properly identify an injustice in regards to the 4th ammendment.

 

[Quipling]

North Dakota's Brief
http://www.scotusblog.com/wp-content/uploads/2016/03/14-1468_resp.authcheckdam.pdf

North Dakota Supreme Court Opinion
http://www.scotusblog.com/wp-conten...te-v.-Birchfield-2015-ND-6-858-N.W.2d-302.pdf

Argument Transcript
http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-1468_b97d.pdf
McCarthy 36-50
Keena at 51-60

Note there is a third attorney who argues 61-70

 

[Cubo de Sangre]

That made me want to be a Supreme Court judge. Outstanding.

 

[Ayin]

What's the advantage of a Blood test vs a breathalyzer in these instances?

 

[Philo-Publius]

What's the advantage of a Blood test vs a breathalyzer in these instances?

Blood test is more accurate. Personally, If I were arrested on the results of a Breathalyzer, I would want the verification of a blood test later. The blood test results could show a lower alcohol content, which could give my attorney wiggle room in court if it was below the legal limit.

 

[jefferz]

What's the advantage of a Blood test vs a breathalyzer in these instances?

Blood is a lot more accurate.
I actually live in one of these rural North Dakota areas and I'd prefer a blood test because it would take them at least an hour and a half to get me to a place to get my blood tested.

 

[Quipling]

Blood is a lot more accurate.
I actually live in one of these rural North Dakota areas and I'd prefer a blood test because it would take them at least an hour and a half to get me to a place to get my blood tested.

The point the justices made in that scathing was is in the process of that 90 minute drive, you can damn well get a warrant.

 

[jefferz]

The point the justices made in that scathing was is in the process of that 90 minute drive, you can damn well get a warrant.

Not all the time. The judge before the one we have now was blind, it was about a 50/50 chance of him answering the phone in the middle of the night.

 

[Quipling]

Not all the time. The judge before the one we have now was blind, it was about a 50/50 chance of him answering the phone in the middle of the night.

That would have been a better reason than the ones given by Keene and McCarthy

 

[bad seed]

the author of that article was having way too much fun; cackling with glee at judicial bullying by DC elites against country bumkins.

 

[Quipling]

the author of that article was having way too much fun; cackling with glee at judicial bullying by DC elites against country bumkins.

Mr. McCarthy is from NoVa. He's more of a suburban bumpkin.

 

[Arkain2K]

the author of that article was having way too much fun; cackling with glee at judicial bullying by DC elites against country bumkins.

I'm not gonna lie: I did find it hilarious

Cases that actually get accepted to be reviewed by the Supreme Court are serious and precedent-setting. It's incredible that we actually have this rare amateur-hour in this day and age.

 

[pinger]

I read somewhere on Sherdog recently that they wanted to make the intellectual standards lower for attorneys.

I think that ship has sailed.