High court to review Cape Girardeau County drunken driving case

Wednesday, September 26, 2012

The U.S. Supreme Court has agreed to hear a case that originated in Cape Girardeau County -- perhaps for the first time ever -- in which the nation's highest court will weigh whether law enforcement must obtain a warrant before ordering a blood test on unwilling drunken-driving suspects.

The court announced Tuesday that it will review six new cases, including the local one that began in 2010 when a Jackson man was charged with driving while intoxicated after a Missouri State Highway Patrol trooper had blood drawn against the suspect's will.

At least three local lawyers will be in Washington, D.C., in January when the nine justices hear oral arguments, including prosecutors Morley Swingle and Jack Koester, as well as defense attorney Steve Wilson.

Swingle said Tuesday that those in his office, which filed the appeal, were ecstatic when they found out the news Tuesday.

"We will be part of clarifying an important issue in search and seizure law nationwide," Swingle said. "And it is the dream of every law student who studied their decisions to argue a case before the Supreme Court."

It won't be Swingle, however, who will be arguing before the court. That distinction, he said, will go to assistant prosecutor Jack Koester, who handled the case from the start. It was Koester, Swingle said, that prosecuted the case and then made arguments before the appellate courts and finally the Missouri Supreme Court.

Koester, 35, also wrote the petition to the Supreme Court, called a certiorari, Latin for "to become more fully informed." But the assistant prosecutor said he never really expected that the case would be among the few that the court would accept. Last year, for example, 8,000 petitions were filed and the court granted just 75 -- fewer than 1 percent.

At issue in the case is whether police can take blood without a search warrant under the "exigent circumstances exception" to the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure. The court will weigh whether the natural dissipation of alcohol in the bloodstream creates such a "special fact" that amounts, in the prosecution's estimation, to allowing evidence to be destroyed.

In the local case, Tyler McNeely had a blood alcohol content that measured 0.154, nearly twice the legal limit, roughly 25 minutes after he was pulled over. Judge Benjamin Lewis, however, suppressed the results of the blood test, ruling that the trooper should have gotten a search warrant from a judge.

The Missouri Court of Appeals ruled 3-0 that the trooper did not need a warrant. But, because the courts across the country have been so evenly split, the case was still transferred to the Missouri Supreme Court, which reversed the appellate court's decision. The state's high court ruled with McNeely that the blood sample should be suppressed saying that there were no "special facts" or "exigent circumstances" to justify obtaining the sample in a hurry.

Koester will be arguing to the court that law enforcement did not need a warrant when it took a blood test from McNeely. Koester said he believes and will argue the dissipation of alcohol in the blood does qualify as a special circumstance.

McNeely's lawyer, Wilson, a criminal defense attorney with three decades experience, will also be among the lawyers before the court. He said his client wasn't as excited as some seem to be. If the Missouri Supreme Court's decision is reversed, his client may have to face trial again.

"He's just ready for it to be over," Wilson said.

On Tuesday, the American Civil Liberties Union, which now represents McNeely, said the prosecution's theory is not scientifically sound and, in McNeely's case, there were no special circumstances, such as an accident or an emergency.

"So there's no need to discard the Fourth Amendment," said Tony Rothert, the ACLU's eastern district's legal director. "If the ruling is overturned, it would make the Fourth Amendment mean less and it would mean less than the founders intended."

Still unclear Tuesday afternoon was whether a Cape Girardeau County case had ever made it to the U.S. Supreme Court in the past. Swingle said it hadn't happened in his many years in office. Others within the legal community weren't sure, but couldn't remember it happening before.

U.S. District Judge Stephen Limbaugh also could not recall such a case. But the former justice for the Missouri Supreme Court said this case is a remarkable one in light of the way the courts have been divided.

"It's a very interesting legal question, even though a somewhat esoteric one," Limbaugh said.

smoyers@semissourian.com

388-3642

Pertinent address:

200 Court St., Jackson, MO

Map of pertinent addresses

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