Why this Columbus drunk driving lawyer believes OVI blood tests are unconstitutional

Supreme Court to decide whether DUI tests without warrants are an invasion of privacy

As a practical matter, OVI (drinking and driving defense) is one of the most complex areas of law. As a drunk driving lawyer in Columbus, I should know. There are scientific issues, factual issues, Fourth Amendment issues, and (perhaps most complicating) political issues.

Let’s start with the political issues. For many, the prevention of drinking and driving is a lifelong cause. And for good reason. People die and kill others when they drive drunk. It’s a fact. It seems pretty reasonable, then, to punish drunk drivers harshly. To that end, we spend millions to train and educate officers to stop, detect, and arrest drunk drivers.

Here’s the problem: “Cause” prosecutions (no matter how valid or popular) tend to run afoul of our freedoms. At the local level, where causes are most popular, this becomes most evident. It seems more than reasonable to make everyone take a blood test if they are suspected of drunk driving. Why not? If they aren’t breaking the law, then why would they care? If they are breaking the law, then they should be caught. On its face, this argument makes perfect sense.

But in our country, we have a pesky thing called the Bill of Rights. Yep. Those first 10 Amendments to our great Constitution.

A little simple history is important. See, our framers didn’t like the power of the British Empire. They didn’t like getting prosecuted for speaking their minds (Free Speech). They didn’t like getting stripped of their liberties without Due Process. They didn’t like being told what god to worship. And, most important for this discussion, they didn’t like the government coming into their homes. They wanted to be free of government searches and seizures.

Over the years, this concept has evolved and expanded. If we have an expectation of privacy from the government, the police need a warrant to search our stuff and seize things. The issue now before the Supreme Court is whether this includes our blood after a drunk-driving arrest.

The prosecutors in Birchfield v. North Dakota had the unenviable job of arguing that the police didn’t have to get a warrant to take someone’s blood. Why not? Simple, they argued. It was just too difficult to get a warrant in rural areas of our great country. Judges couldn’t always be reached. It was just too much of an inconvenience.

It was pretty clear that our justices weren’t buying this argument. They shot back that it seemed pretty easy to get a warrant electronically using computers, phones, or whatever in this day and age.

The Court hasn’t ruled yet. But, according to a USA Today headline, the writing’s on the wall: The Supreme Court skeptical of drunken-driving breath tests without warrants. Blood draws without consent and without a warrant will violate the Fourth Amendment.

So, what’s this have to do with causes? The prosecutors in Birchfield surely believe their position is right. They are arguing for a great cause. And so they should. But let’s be thankful that they don’t get the final say. We have the Supreme Court for such weighty matters, presumably a Court that can see a greater cause — protection of liberty.

It’s easy to justify an infringement of someone’s constitutional rights if we believe they are guilty or they are running afoul of our sense of right and wrong. It’s wrong to drive drunk, so who cares about constitutional rights. Let’s just stop the scourge and require blood tests of everyone.

The problem is that we can’t look at drunk driving in a vacuum. If we suspend the Fourth Amendment, even for a good cause, then we open ourselves up to potential government abuse.

But wait. Government abuse? Corrupt police? This doesn’t happen in our country. Well, the fact is that it can happen. Our framers knew this firsthand. They didn’t trust the British government. So when they created their own government, they built in checks and balances. They created the Bill of Rights.

Imagine that concept for a second. Our framers were the government they were creating. They were the people who would be in charge. Does this mean they didn’t trust themselves? They probably did. But they understood something fundamental — if this government was going to last, it had to protect the people from the powers in charge. They hardly would have seen drinking and then driving cars as a Fourth Amendment problem. But they knew that there were to be unforeseen evils lurking in the future. As Lord Acton wisely warned, “Power tends to corrupt and absolute power corrupts absolutely…”

So maybe we don’t have widespread corruption by government officials because of protections like the Fourth Amendment. Only one question need be asked: What if we didn’t have the Fourth Amendment? Because if we get rid of it for drunk drivers, it paves the way to its slow, incremental destruction.

I’m sure we are all humming the National Anthem by now. But at the risk of sounding cliché, we have to protect the guilty so we can protect the innocent.