U.S. Supreme Court hears Koester deliver warrantless-search arguments

Thursday, January 10, 2013
Jack and Julie Koester on the steps of the US Supreme Court shortly after the oral argument.

WASHINGTON -- Before he finished his first sentence, Jack Koester's well-rehearsed opening remarks were cut short by a question. During the next 15 minutes, the prosecutor's presentation would be interrupted again and again by the notoriously inquisitive -- and imposing-- group seated fewer than five feet away.

To Koester, though, it wasn't a lack of civility. It was the pinnacle of his professional career.

The 36-year-old Koester, an assistant prosecutor for Cape Girardeau County, was in Washington, D.C., on Wednesday to argue a local case in front of the U.S. Supreme Court -- one that may help answer a divisive question about whether police need a warrant to force blood tests from an unwilling drunken-driving suspect.

Justices heard arguments from Koester and Justice Department lawyer Nicole Saharksy, who represented Missouri.

The focal point of the case was Tyler McNeely, who was represented by the American Civil Liberties Union. His local lawyer, Steve Wilson, also was on hand to view the proceedings.

"I practiced as often as I could," Koester said. "You think you're about as ready as you're going to be and it's still just a very daunting experience."

Other locals who traveled to Washington included assistant prosecutors Angel Woodruff and Julie Hunter, former Prosecuting Attorney Morley Swingle and Cpl. Mark Winder, the officer who arrested McNeely.

In 2010, McNeely was pulled over at about 2 a.m. for driving 11 miles above the speed limit. Winder said McNeely was wobbly, red-eyed and apparently drunk. After McNeely failed a field sobriety test, Winder asked the suspect to take a breathalyzer, which he refused.

Winder drove him to a hospital and had a lab technician draw the blood against McNeely's will.

That was enough to get the attention of Wilson, who took the case and has stayed with it.

At issue -- one the justices appeared to struggle with -- is whether the dissipation of alcohol in blood over time is reason enough for police to call for a blood test without first obtaining a warrant. Unless time is of the essence, or "exigent circumstances," McNeely's lawyers argued police should have gotten a warrant.

In McNeely's case, police said it was going to take more than two hours to obtain a warrant.

Koester said evidence being lost by blood dissipation is at a significant rate, meaning the state would not have had the best evidence.

Associate Justice Sonia Sotomayor interrupted: "What constitutional right exists for a state to get the best evidence?"

Cape Girardeau County Judge Benjamin Lewis issued an order throwing out the results of the blood test, which showed that McNeely's blood alcohol content was .154 of a percent, well above the .08 of a percent legal limit. The Missouri Supreme Court later agreed.

Koester urged the high-court justices to reject previous rulings and allow police to forego such a time-consuming process.

Wilson on Wednesday said he hoped the high court would side with the lower courts. A consensus of legal experts seemed to be that the Supreme Court, which isn't expected to rule before June, will not side against his client.

"Of course you never know what a court is going to do," Wilson said while awaiting a flight home. "And you never want to try to figure out what a court is going to do by what goes on in oral arguments."

Wilson said the question to be answered by the court is significant to Fourth Amendment rights, which protect the people from "unreasonable" searches and seizures.

He said prosecutors and police were, in essence, "trying to change the law and effect the expectation of privacy that even if you don't want a needle in your arm, you're going to have to permit that to happen."

But McNeely might have had more reason to object than most. Koester said the defendant faced a felony charge with a maximum prison sentence term of four years because of two prior convictions.

The social problem that is drunken driving loomed over the proceedings. All 50 states have laws requiring drivers arrested on suspicion of driving while intoxicated to consent to a blood alcohol test; refusal to consent can mean a one-year suspension of one's driver's license.

The Associated Press contributed to this report.

smoyers@semissourian.com

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