Supreme Court of the United States

No. 14-266 In The Supreme Court of the United States COLORADO, v. JACK LEE SCHAUFELE, Petitioner, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO BRIEF OF WISCONSIN, IDAHO, ILLINOIS, IOWA, MAINE, MICHIGAN, MISSOURI, NEVADA, NEW MEXICO, OHIO, SOUTH DAKOTA, VERMONT, AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF PETITIONER Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-3067/(608) 267-2223 (fax) collinsws@doj.state.wi.us *Counsel of Record J.B. VAN HOLLEN Wisconsin Attorney General WINN S. COLLINS* Assistant Attorney General

ADDITIONAL COUNSEL FOR AMICI CURIAE LAWRENCE G. WASDEN Idaho Attorney General Post Office Box 83720 Boise, ID 83720-0010 LISA MADIGAN Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, IL 60601 TOM MILLER Iowa Attorney General 1305 East Walnut Street Des Moines, IA 50319 JANET T. MILLS Maine Attorney General 6 State House Station Augusta, ME 04333 BILL SCHUETTE Michigan Attorney General Post Office Box 30212 Lansing, MI 48909 CHRIS KOSTER Attorney General of Missouri Supreme Court Building 207 West High Street Jefferson City, MO 65101

CATHERINE CORTEZ MASTO Attorney General for the State of Nevada Office of the Attorney General 100 North Carson Street Carson City, NV 89701 GARY K. KING Attorney General of New Mexico Post Office Drawer 1508 Santa Fe, NM 87504-1508 MICHAEL DEWINE Attorney General of Ohio 30 East Broad Street, 17th Floor Columbus, OH 43215 MARTY J. JACKLEY Attorney General State of South Dakota 1302 East Highway 14, Suite 1 Pierre, SD 57501-8501 WILLIAM H. SORRELL Vermont Attorney General 109 State Street Montpelier, VT 05609-1001 ROBERT W. FERGUSON Attorney General of Washington 1125 Washington Street SE Post Office Box 40100 Olympia, WA 98504-0100

i QUESTIONS PRESENTED 1. Does the opinion of the Court in Missouri v. McNeely preclude adoption of the rule proposed by the Chief Justice in his McNeely concurrence and dissent? 2. Should the rule proposed by the Chief Justice in McNeely be adopted as the test for determining whether exigent circumstances justify a warrantless blood draw in a drunk-driving case?

ii TABLE OF CONTENTS QUESTIONS PRESENTED... i INTEREST OF AMICI CURIAE... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 I. This case raises an important question on the constitutionality under the Fourth Amendment of warrantless blood draws for impaired drivers.... 2 II. McNeely did not settle the important question of when a police officer may obtain a blood sample from an impaired driver without a warrant.... 6 III. This Court should settle the post-mcneely confusion to ensure uniformity among states and to prevent the destruction of evidence.... 7 CONCLUSION... 13

iii TABLE OF AUTHORITIES Cases Michigan Dep t of State Police v. Sitz, 496 U.S. 444 (1990)... 2, 3 Missouri v. McNeely, U.S., 133 S. Ct. 1552 (2013)... passim Skinner v. Railway Labor Execs. Ass n, 489 U.S. 602 (1989)... 12 United States v. Harris, 403 U.S. 573 (1971)... 8 Rules and Statute Sup. Ct. R. 37(2)(a)... 1 Sup. Ct. R. 37(4)... 1 Wis. Stat. 753.06... 9 Other Authorities Abby Goodnough & Katie Zezima, Drivers on Prescription Drugs Are Hard to Convict, N.Y. Times, July 25, 2010... 4

iv Benjamin W. Perry, Fourth Amendment Warrantless, Nonconsensual Seizures of a DWI Suspect s Blood: What Happens If You Say No to the Breathalyzer? Missouri v. McNeely, 133 S. Ct. 1552 (2013), 37 Am. J. Trial Advoc. 231 (2013)... 9 Charles L. Winek & Kathy L. Murphy, The Rate and Kinetic Order of Ethanol Elimination, 25 Forensic Sci. Int l 159 (1984)... 11 Federal Bureau of Investigation, Crime in the United States 2010... 2 Federal Bureau of Investigation, Crime in the United States 2012... 3 Gwen Bergen et al., Vital Signs: Alcohol- Impaired Driving Among Adults United States, 2010, 60 Morbidity & Mortality Wkly. Rep. 1351 (2011)... 3 Howard J. Shaffer et al., The Epidemiology of Psychiatric Disorders Among Repeat DUI Offenders Accepting a Treatment-Sentence Option, 75 J. Consulting & Clinical Psychol. 795 (2007)... 11 John H. Lacey et al., Nat l Highway Traffic Safety Admin., 2007 National Roadside Survey of Alcohol and Drug Use by Drivers: Drug Results (Dec. 2009)... 4

v Justin Noval & Edward J. Imwinkelried, Retrograde Extrapolation of Blood Alcohol Concentration, 50 Crim. Law Bull. 188 (2014)... 11, 12 Kevin Stockmann, Note, Drawing on the Constitution: An Empirical Inquiry into the Constitutionality of Warrantless and Nonconsensual DWI Blood Draws, 78 Mo. L. Rev. 351 (2013)... 10 Lawrence Blincoe et al., Nat l Highway Traffic Safety Admin., The Economic and Societal Impact of Motor Vehicle Crashes, 2010 3 (May 2014)... 5 Maggie Koerth-Baker, Driving Under the Influence, of Marijuana, N.Y. Times, Feb. 18, 2014... 4 Michael A. Correll, Is There a Doctor in the (Station) House?: Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years After Schmerber, 113 W. Va. L. Rev. 381 (2011)... 5 M.W. Perrine et al., Epidemiologic Perspectives on Drunk Driving, in Surgeon General s Workshop on Drunk Driving: Background Papers 67 (1989)... 11

vi Nat l Highway Traffic Safety Admin., U.S. Dep t of Transp., Traffic Safety Facts 2012 Data: Alcohol-Impaired Driving 1 (Dec. 2013)... 4 Office of Applied Studies, Substance Abuse & Mental Health Servs. Admin., NSDUH Report: State Estimates of Persons Aged 18 or Older Driving Under the Influence of Alcohol or Illicit Drugs 1 (Apr. 17, 2008)... 3 Office of Nat l Drug Control Policy, Exec. Office of the President, Fact Sheet: Reducing Drugged Driving and Protecting Public Health and Safety 1 (Dec. 2012)... 4 Patricia L. Dill & Elisabeth Wells-Parker, Court-Mandated Treatment for Convicted Drinking Drivers, 29 Alcohol Res. & Health 41 (2006)... 5 R. Compton et al., Nat l Highway Traffic Safety Admin., Drug-Impaired Driving: Understanding the Problem & Ways to Reduce It (Dec. 2009)... 12 Ralph K. Jones & John H. Lacey, Nat l Highway Traffic Safety Admin., State of Knowledge of Alcohol-Impaired Driving: Research on Repeat DWI Offenders 12 (Feb. 2000)... 11

vii Randy W. Elder et al., Effectiveness of Ignition Interlocks for Preventing Alcohol- Impaired Driving and Alcohol-Related Crashes: A Community Guide Systematic Review, 40 Am. J. Prev. Med. 362 (2011)... 5 Thomas K. Clancy, The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose, 48 U. Rich. L. Rev. 479 (2014)... 7-8 William J. Rauch et al., Risk of Alcohol-Impaired Driving Recidivism Among First Offenders and Multiple Offenders, 100 Am. J. Pub. Health 919 (2010)... 3

INTEREST OF AMICI CURIAE The amici states have two important interests in this impaired driving case. First, the states have an interest in consistent and predictable application of the totality of the circumstances analysis under the Fourth Amendment. Missouri v. McNeely, U.S., 133 S. Ct. 1552, 1558-59 (2013) (granting certiorari to resolve a split of state authorities and applying the totality of the circumstances analysis to warrantless blood draws). Second, the states have an interest in preserving the best evidence to protect the public from the significant harm caused by impaired drivers. See id. at 1571 n.1 (Roberts, C.J., concurring in part and dissenting in part). Thus, the amici states have an interest in this Court granting Colorado s petition. 1 SUMMARY OF ARGUMENT This Court should grant Colorado s petition to provide guidance to states on the important question of the constitutionality of warrantless blood draws. McNeely did not settle the question of when a police officer may obtain a blood sample from an impaired driver without a search warrant. As this case demonstrates, McNeely presented two different 1 The amici states gave timely notice on September 23, 2014, to counsel for the parties of its intent to file this brief. See Sup. Ct. R. 37(2)(a). The amici states do not need consent of the parties to file this brief. Sup. Ct. R. 37(4).

2 approaches to warrantless blood draws (Pet. App. 8a, 28a-37a). The confusion that followed after McNeely has led to inconsistent applications of the relevant Fourth Amendment principles. Such confusion delays blood draws, which leads to evidence destruction. This Court should resolve the post-mcneely confusion by granting Colorado s petition for a writ of certiorari. ARGUMENT I. This case raises an important question on the constitutionality under the Fourth Amendment of warrantless blood draws for impaired drivers. This case involves a critical question for the states and its citizens. See Michigan Dep t of State Police v. Sitz, 496 U.S. 444, 451 (1990) ( No one can seriously dispute the magnitude of the drunken driving problem or the States interest in eradicating it. ). Police officers arrest over 1.2 million people annually for driving under the influence of alcohol or another drug in the United States. See, e.g., Federal Bureau of Investigation, Crime in the United States 2012 T.29 (1,282,957 arrests in 2012). 2 These arrests account for approximately one percent of the estimated 112 to 161 million times per year that 2 http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s (follow 2012 hyperlink; then follow Crime in the U.S. 2012 hyperlink; then follow Go to Arrest Tables hyperlink; then follow Table 29 hyperlink).

3 people drive impaired. See Gwen Bergen et al., Vital Signs: Alcohol-Impaired Driving Among Adults United States, 2010, 60 Morbidity & Mortality Wkly. Rep. 1351, 1352 (2011). Thus, an impaired driver drives impaired an average of 80 times between arrests. Compare id. (112,116,000 instances in 2010), with Federal Bureau of Investigation, Crime in the United States 2010 T.29 (1,412,223 arrests in 2010). 3 Some drive impaired as much as 2,000 times before arrest. William J. Rauch et al., Risk of Alcohol-Impaired Driving Recidivism Among First Offenders and Multiple Offenders, 100 Am. J. Pub. Health 919, 919 (2010). Alcohol is the most common substance associated with impaired driving. See Office of Applied Studies, Substance Abuse & Mental Health Servs. Admin., NSDUH Report: State Estimates of Persons Aged 18 or Older Driving Under the Influence of Alcohol or Illicit Drugs 1 (Apr. 17, 2008) (15.1 percent of drivers drove under the influence of alcohol within the year). Increasingly, drugs account for a significant number of instances of impaired driving in the United States. See, e.g., id. (4.7 percent of drivers drove under the influence of illicit drugs in the past 3 http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s (follow 2010 hyperlink; then follow Crime in the U.S. 2010 hyperlink; then follow Go to Arrest Tables hyperlink; then follow Table 29 hyperlink).

4 year); see generally John H. Lacey et al., Nat l Highway Traffic Safety Admin., 2007 National Roadside Survey of Alcohol and Drug Use by Drivers: Drug Results (Dec. 2009) (examining drug-involved driving, including illegal, prescription, and over the counter drugs). Driving under the influence of drugs including prescription medication is a growing problem. See Abby Goodnough & Katie Zezima, Drivers on Prescription Drugs Are Hard to Convict, N.Y. Times, July 25, 2010, at A1; 4 see also Office of Nat l Drug Control Policy, Exec. Office of the President, Fact Sheet: Reducing Drugged Driving and Protecting Public Health and Safety 1 (Dec. 2012). As states legalize marijuana, impairment from marijuana is likely to increase accordingly. Maggie Koerth-Baker, Driving Under the Influence, of Marijuana, N.Y. Times, Feb. 18, 2014, at D1. 5 Whether by alcohol or drug, impaired driving kills thousands, injures hundreds of thousands, and costs billions each year in the United States. Approximately 10,000 people die annually from impaired driving, accounting for about one-third of the nation s traffic fatalities. Nat l Highway Traffic Safety Admin., U.S. Dep t of Transp., Traffic Safety Facts 2012 Data: Alcohol-Impaired Driving 1 (Dec. 2013). In one year, more than 300,000 people suffer injuries in alcohol-related crashes. 4 http://www.nytimes.com/2010/07/25/us/25drugged.html?pa gewanted=all&_r=0. 5 http://www.nytimes.com/2014/02/18/health/driving-underthe-influence-of-marijuana.html.

5 See, e.g., Lawrence Blincoe et al., Nat l Highway Traffic Safety Admin., The Economic and Societal Impact of Motor Vehicle Crashes, 2010 3 (May 2014). Such crashes cost approximately $50 billion annually. See, e.g., id. at 162 (economic cost in 2010). Conviction for impaired driving provides an opportunity to motivate a person to recognize his or her problem with substance abuse and its consequences. See Patricia L. Dill & Elisabeth Wells-Parker, Court-Mandated Treatment for Convicted Drinking Drivers, 29 Alcohol Res. & Health 41, 45 (2006). Following conviction, a court commonly imposes a license suspension or revocation, which has provided the strongest and most consistent evidence of effectiveness in reducing recidivism. Randy W. Elder et al., Effectiveness of Ignition Interlocks for Preventing Alcohol-Impaired Driving and Alcohol-Related Crashes: A Community Guide Systematic Review, 40 Am. J. Prev. Med. 362, 362 (2011). Increasingly, courts require ignition interlocks on vehicles of impaired drivers with strong evidence showing that the devices reduce recidivism. See id. at 370. In order to obtain such convictions, there must be timely blood draws. See Michael A. Correll, Is There a Doctor in the (Station) House?: Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years After Schmerber, 113 W. Va. L. Rev. 381, 388 (2011) (describing blood as the gold standard of DWI evidence ). A timely blood draw preserves the best evidence necessary for

6 conviction. See McNeely, 133 S. Ct. at 1571 n.1 (Roberts, C.J., concurring in part and dissenting in part). The Colorado Supreme Court s constrained reading of McNeely unduly delays blood draws (see Pet. App. 8a (plurality opinion)). II. McNeely did not settle the important question of when a police officer may obtain a blood sample from an impaired driver without a warrant. McNeely did not settle the question of when a police officer may obtain a blood sample without a warrant. To be sure, the Court held that [w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. 133 S. Ct. at 1563. Yet as Justice Kennedy cautioned in his concurring opinion, that general rule ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers. Id. at 1569 (Kennedy, J., concurring in part). Chief Justice Roberts, joined by Justices Breyer and Alito, proposed just such a rule, one that would provide clear guidance to officers in the field and would ensure that blood alcohol evidence is not unnecessarily lost: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that

7 there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. Id. at 1573 (Roberts, C.J., concurring in part and dissenting in part). McNeely left open whether the guideline proposed by Chief Justice Roberts should be adopted. Justice Thomas implicitly includes (but goes further than) the Chief Justice s approach, thereby supporting such an approach by implication (Pet. App. 31a (Eid, J., dissenting)). And Justice Kennedy stated that the Court may wish to provide more guidance in a future case. McNeely, 133 S. Ct. at 1569 (Kennedy, J., concurring in part). As things stand, therefore, the Court has neither accepted nor rejected Chief Justice Roberts proposed guideline. This case presents an ideal opportunity to decide whether to adopt that proposal. III. This Court should settle the post-mcneely confusion to ensure uniformity among states and to prevent the destruction of evidence. This Court should settle the confusion that followed from McNeely. As the Director of the National Center for Justice and the Rule of Law noted: The Fourth Amendment s commands are said to be practical and not abstract[.] Thomas K. Clancy, The Purpose of the Fourth Amendment and Crafting Rules to Implement that

8 Purpose, 48 U. Rich. L. Rev. 479, 505 (2014) (quoting United States v. Harris, 403 U.S. 573, 577 (1971) (citation omitted)). Yet without this Court s further intervention, the Fourth Amendment rule applicable to this common situation is not at all practical to individual police officers making traffic stops or to judges trying to resolve Fourth Amendment challenges to blood draws. See id. McNeely creates confusion in two distinct, mutually reinforcing ways. First, as Chief Justice Roberts accurately predicted, [a] police officer reading this Court s opinion would have no idea no idea what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. McNeely, 133 S. Ct. at 1569 (Roberts, C.J., concurring in part and dissenting in part). Only rules and practical guidelines that refine the totality of the circumstances test in this context can make the test workable. But the Court in McNeely provided none. Second, lower courts and officers in the field are confused as to whether they even have the authority to adopt and apply Chief Justice Roberts proposal as a guideline. A plurality of the Colorado Supreme Court read McNeely, incorrectly, as having rejected that proposal, while two dissenting Justices on that court concluded that it could and should adopt it (see Pet. App. 2a-20a, 28-37a). If these Justices cannot agree on the meaning of McNeely, it is hard to imagine that police officers around the nation will have any better luck doing so.

9 Unless Colorado s petition is granted, police officers will be left with no direction. And without direction, police officers may simply default to a search warrant in every or nearly every case. See Benjamin W. Perry, Fourth Amendment Warrantless, Nonconsensual Seizures of a DWI Suspect s Blood: What Happens If You Say No to the Breathalyzer? Missouri v. McNeely, 133 S. Ct. 1552 (2013), 37 Am. J. Trial Advoc. 231, 239 (2013). While defaulting to a search warrant in every impaired driving case may initially seem appealing, such an approach ignores the significant threat to public safety caused by impaired drivers. The time it takes to get a warrant will often result in the destruction of key evidence, thereby enabling impaired drivers to keep their licenses and continue putting the public at risk. While a search warrant does not delay every blood draw, there are many situations when a warrant causes delay. See McNeely, 133 S. Ct. at 1572-74 (Roberts, C.J., concurring in part and dissenting in part). For example, a rural community may experience a delay when the lone judge serving the county is not readily available. See, e.g., Wis. Stat. 753.06 (2011-12) (identifying Wisconsin counties served by only one judicial branch). McNeely provides no guidance on how long a police officer must attempt to contact the lone judge for the county when the first attempt fails. 133 S. Ct. at 1569 (Roberts, C.J., concurring in part and dissenting in part).

10 Beyond judicial availability, the time to obtain a search warrant varies dramatically depending upon the jurisdiction and facts of the case. Compare id. at 1573 (reporting the issuance of a warrant in as little as five minutes), with Kevin Stockmann, Note, Drawing on the Constitution: An Empirical Inquiry into the Constitutionality of Warrantless and Nonconsensual DWI Blood Draws, 78 Mo. L. Rev. 351, 373 (2013) (reporting that a warrant can take up to four hours). The average time to secure a search warrant falls somewhere between the extremes of a few minutes to several hours. At the time this Court heard McNeely, police officers typically obtained a search warrant in one to two hours in Missouri. Stockmann, supra, at 374. In this case, even an expedited search warrant in Colorado took at least an hour (Pet. App. 5a). In McNeely, this Court unanimously acknowledged that delayed blood draws destroy evidence. See 133 S. Ct. at 1560-63; Id. at 1570 (Roberts, C.J., concurring in part and dissenting in part); Id. at 1575-76 (Thomas, J., dissenting). But even that acknowledgment failed to capture the full extent of such evidence destruction. McNeely generally assumed average alcohol elimination rates among all drinkers. Only Justice Thomas observed a quicker elimination rate for heavy drinkers. See id. at 1575 (Thomas, J., dissenting). When examining alcohol elimination rates based upon individual drinking habits non-drinkers have an average elimination rate

11 of 0.012 percent, social drinkers have a rate of 0.015 percent, and alcoholics have a rate of 0.030 percent. Justin Noval & Edward J. Imwinkelried, Retrograde Extrapolation of Blood Alcohol Concentration, 50 Crim. Law Bull. 188, 210 (2014) (citing Charles L. Winek & Kathy L. Murphy, The Rate and Kinetic Order of Ethanol Elimination, 25 Forensic Sci. Int l 159 (1984)). Impaired drivers have a quicker average elimination rate of alcohol than the public at large because they have a higher rate of substance abuse. Overall, repeat offenders are more likely alcohol-dependent than first offenders. See Ralph K. Jones & John H. Lacey, Nat l Highway Traffic Safety Admin., State of Knowledge of Alcohol-Impaired Driving: Research on Repeat DWI Offenders 12 (Feb. 2000). However, in many respects, first offenders are not distinguishable from repeat offenders. Id. at 9. Even most first offenders are problem drinkers who have simply not yet had their second offense. Id. (quoting M.W. Perrine et al., Epidemiologic Perspectives on Drunk Driving, in Surgeon General s Workshop on Drunk Driving: Background Papers 67 (1989)). As a group, people who drive while impaired have a high rate of alcohol dependence and abuse. See Howard J. Shaffer et al., The Epidemiology of Psychiatric Disorders Among Repeat DUI Offenders Accepting a Treatment-Sentence Option, 75 J. Consulting & Clinical Psychol. 795, 796 (2007). In short, the alcohol elimination rate the exigency is greater than this Court recognized in McNeely.

12 Further, McNeely considered only the elimination of alcohol without recognizing that many instances of impaired driving involve impairment from drugs. Compare 133 S. Ct. 1552, with R. Compton et al., Nat l Highway Traffic Safety Admin., Drug-Impaired Driving: Understanding the Problem & Ways to Reduce It (Dec. 2009). This Court has recognized the possibility for quick elimination of some drugs from the blood. Skinner v. Railway Labor Execs. Ass n, 489 U.S. 602, 623 (1989) (observing metabolites of some drugs remaining in the urine for longer periods of time than within a blood or breath sample). An untimely blood draw results in inferior evidence. Chief Justice Roberts cautioned that such second-best evidence may prove useless, as an expert witness attempts to work backwards to identify the blood alcohol concentration at the time of a defendant s driving. Id. at 1571 n.1 (Roberts, C.J., concurring in part and dissenting in part). Working backwards through retrograde extrapolation becomes increasingly inaccurate as time distorts the average rates used in the formula to predict the unique absorption and elimination rate for a particular defendant. See Noval & Imwinkelried, supra, at 204-12. In the end, therefore, a police officer confused by McNeely who plays it safe by always seeking a warrant will often obtain inferior evidence even though the Fourth Amendment, even as construed in McNeely, does not invariably require officers to obtain a warrant. See 133 S. Ct. at 1571 n.1 (Roberts, C.J., concurring in part and dissenting in part). When confusion in

13 the law prevents police officers from lawfully obtaining the best evidence, this Court should step in and eliminate the confusion. * * * * * With over one million impaired driving arrests annually, this Court should offer guidance to states regarding how police officers should handle nonconsensual warrantless blood draws. This case presents the opportunity to provide clear, uniform direction to the states in enforcing their impaired driving laws. CONCLUSION This Court should grant Colorado s petition for a writ of certiorari. Dated this 6th day of October, 2014. Respectfully Submitted, J.B. VAN HOLLEN Attorney General Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-3067 (608) 267-2223 (fax) collinsws@doj.state.wi.us *Counsel of Record WINN S. COLLINS* Assistant Attorney General