Arapahoe County prosecutors have asked the U.S. Supreme Court to overturn a decision by a District Court judge and the Colorado Supreme Court, which found that because the officer did not try to obtain a warrant before she ordered a blood draw on Schaufele, the results may not be presented as evidence. Thirteen other states have also filed a petition asking the U.S. Supreme Court to pick up the case.
If the high court takes up the case, their decision will have national implications. Reversing the decision of he lower court will make it easier for authorities to take blood samples without a warrant and could open up the flood gates to forced blood draws anytime a law enforcement officer suspects someone of being under the influence or impaired by drugs, alcohol or both.
Unlawful searches are protected by the Fourth Amendment and repeatedly fall at the center of heated debates and neither prosecutors nor defense attorneys in Schaufele’s case are denying that a blood draw is a personal search.
Instead, what’s at question is when and how authorities make exceptions to the Constitution and whether blood alcohol dissipation is exigent circumstances severe enough to search and seize without a warrant.
Around 7:15 a.m., on May 30, 2012, officers responded to a crash in a busy intersection in Greenwood Village, where Schaufele’s Ford SUV collided with a Honda Accord and injured the driver. Officers said Schaufele, now 54, spoke with a “thick tongue” and seemed disoriented, which they reasoned could have been a result of being hit by the air bag or intoxication.
It wasn’t until Schaufele arrived at the hospital that a different officer — the fourth person to have contact with him — smelled alcohol on his breath. The officer attempted to advise Schaufele about the blood draw, but was unable to do so because he was unconscious.
Prosecutors are asking the Supreme Court to pick up an issue they addressed nearly a year and a half earlier.
In April 2013, the Supreme Court found that authorities must consider multiple factors and be able to properly explain why they did not obtain a warrant before doing a blood draw.
But in his dissenting opinion, Chief Justice John Roberts wrote that in suspected DUI cases, because alcohol levels are constantly decreasing in the blood stream, there should be an exception. Under his proposed rule, Roberts says that if an officer can reasonably determine there is not enough time to get a warrant, the officer is justified in drawing blood without one.
“The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost,” Roberts wrote. “Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately.”
Arapahoe County prosecutors are asking the Supreme Court to adopt Roberts’ rule, something the Colorado Supreme Court declined to do in June.
Arapahoe Chief Deputy District Attorney Andrew Cooper, who is handling the prosecution’s appeal, said the U.S. Supreme Court’s previous decision has blurred the guidelines for police officers on when to do a warrantless blood draw.
“Having a clear rule will benefit everyone. It will benefit police, courts and suspects alike,” Cooper said.
Cases like Schaufele’s are not rare, and there are several pending cases in the 18th Judicial District in which the results of blood-alcohol tests done without a warrant are at question, Cooper said.
Fran Lanzer, executive director of Mothers Against Drunk Driving Colorado, said they have seen cases similar to Schaufele’s across the country.
The Texas Court of Appeals reviewed the case of Antonio Aviles twice and handed down two different rulings. Aviles, who had two previous arrests for driving while impaired, failed three roadside sobriety tests before officers ordered a blood draw without a warrant.
The trial judge denied Aviles’ request to withhold the results of his blood draw — which showed he was legally intoxicated — and he was eventually convicted and sentenced to two years of confinement. The Texas appeals court originally upheld the ruling to suppress the test results, but the U.S. Supreme Court found that without a warrant, the blood draw was unconstitutional.
Aviles’ case was sent back to the appeals court, which agreed with the Supreme Court, and a new trial has been ordered.
In October, 12 attorneys general joined Wisconsin Attorney General J. B. Van Hollen in urging the Supreme Court to take up the Schaufele case. In their request, the attorneys general argue that the Supreme Court’s previous ruling has created confusion for states and deciding the Schaufele case could provide much-needed guidance for investigators.
Lt. Jeff Turner, who oversees the traffic section of the Aurora Police Department, said his department works closely with prosecutors to obtain warrants when they can, but the Supreme Court’s ruling was less than clear and left officers with a number of questions.
“It adds a number of things for us to think about when we already have a lot to think about,” Turner said. We know thinking is not a strong suit for most police officers so having a clear line of distinction is important.
Since the high court’s ruling, Aurora officers seek a warrant in all suspected DUI incidents that include vehicular assault or vehicular homicide, Turner said. But even in the perfect circumstance, it can take more than three hours for the warrant to come in. On average, it takes just under six hours.
In most cases, officers do the first blood draw before the warrant is obtained, Turner said.
If the Supreme Court gives discretion to individual officers to decide when a warrant is obtainable, it will water down the oversight of people’s rights.
With the recent events going on across the country regarding police conduct, giving more discretion to the police is not the answer. We need to police the police and stop the erosion of our constitutional rights in this country. Upholding the Colorado Supreme Court’s ruling that requires a warrant to obtain blood without consent is the correct thing to do in this case. Without these checks and balances, police will take this to the next level and be forcing blood draws any time they suspect someone is impaired.
The Supreme Court could announce whether it will take the case as early as January.