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“Is there any showing that the conviction rate in those states is lower than in the states where the practice is to take the test without the warrant?” Justice Kennedy asked.
Studies show it has no bearing, Koester said. But, he added, it is beyond dispute that any delay inevitably degrades the quality of evidence against a suspected drunken driver.
Steven Shapiro with the American Civil Liberties Union argued against the warrant exception. No warrant is necessary, he said, for a police officer to require a suspected drunken driver to perform a battery of field sobriety tests, such as touching his nose with his finger or walking a straight line.
“But there is no doubt that putting a needle in somebody's arm triggers a warrant requirement,” he said.
Justices Kennedy and Samuel Alito asked Mr. Shapiro what should happen in a rural jurisdiction where it might not be possible to quickly locate a prosecutor and judge to obtain a warrant before a suspected drunken driver begins sobering up.
“Does that count as a circumstance that would justify a warrantless taking of blood?” Justice Alito asked.
No, Shapiro said, a state should not be able to take advantage of its own failure to modernize and create an expedited warrant procedure.
But the ACLU lawyer went on to say that at least 25 states have found that they can prosecute drunken drivers without a special warrant exemption.