Drawing on the Constitution: An Empirical Inquiry into the Constitutionality of Warrantless and Nonconsensual DWI Blood Draws

Abstract

This Note assesses how courts have interpreted the text of Schmerber to justify conclusions while determining whether policy justifications support any particular interpretation. It then considers whether empirical data may favor one interpretation of Schmerber by examining the dissipation rate of alcohol from an individual’s bloodstream, the average time it takes a law enforcement officer to obtain a warrant for a blood draw on an alleged intoxicated driver, and the reliability of retrograde extrapolation. This Note confirms that neither the text of Schmerber nor the policy underlying its holding clearly favors a particular interpretation on the constitutionality of warrantless and nonconsensual blood draws on an alleged drunk driver. It then concludes that empirical data supports the position that the rapid dissipation of an individual’s BAC by itself is a “special fact” justifying a warrantless and nonconsensual blood draw