Testing for pot in drivers’ blood is invasive act

So is it legal without a warrant? The high court is pondering that question, and the answer will impact Washington state.


Should police have the authority to draw blood from motorists stopped for being suspected of driving under the influence without a search warrant?

That’s a question looming in Washington state, where voters approved the legalization of marijuana in November. Under that law, it is illegal to drive with more than 5 nanograms of THC (an active ingredient of marijuana) per milliliter in the motorist’s blood.

The only way to test for THC is by drawing blood.

Police and prosecutors throughout the state will have to establish procedures for when and how to draw blood from drivers suspected of being under the influence of marijuana. It’s not going to be simple or easy.

Will police draw blood on the scene or will they take the suspect to a hospital? At what point will officers have to get a judge’s permission to draw blood, or will they have wide discretion to draw blood at any traffic stop?

At this point, there are no answers for these or the myriad questions likely to arise as procedures are established.

But the U.S. Supreme Court could bring clarity to the issue within the next year. The high court heard arguments Wednesday in a Missouri case in which the justices are to decide whether police have a free hand to forcibly take blood from motorists or if a warrant is required.

The case involving a suspected drunken driver could have an impact nationally.

If comments made by justices during the questioning of lawyers are any indiction, as they often are, law enforcement could be facing a high threshold for obtaining blood from suspects.

“It’s a pretty scary image of somebody restrained, and a representative of the state approaching them with a needle,” Chief Justice John Roberts said.

It’s a valid concern, which is why blood tests have been a last resort for law enforcement when dealing with suspected impaired drivers.

Drawing bodily fluids by inserting a needle into the suspect is invasive. A Breathalyzer test, simply blowing into a tube, is not.

It would seem reasonable to have some judicial oversight when wanting to draw blood to ensure the rights of citizens are not violated. About half the states now require a warrant.

Obtaining a warrant likely wouldn’t be a problem if the collection of blood was done only under extraordinary circumstances. It be obtained swiftly and cost would be minimal.

But if the drawing of blood becomes routine — as seems to be the direction Washington state will go because of the marijuana legalization — getting a warrant would become time consuming and very expensive. Judges would have to be on call around the clock.

It’s possible the court will rule against the need for a warrant, which will make enforcement of the driving-while-stoned law manageable. However, if warrants are required it’s going to be a mess.

Whatever is ruled, we would hate to see police armed with needles. That’s not what they have been trained to do.


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