In our last blog post, we discussed a recent issue that has come up in South Dakota, where police are forcing drivers suspected of operating a vehicle under the influence (OUI) to provide a urine sample. If these drivers refuse, police have obtained a warrant to get one, and if the drivers still refuse, police have forcefully gotten the urine sample using catheters.
While the South Dakota Attorney General claims that the practice is widespread and perfectly constitutional, criminal defense attorneys have disagreed on both points, and the state's courts are currently resolving the issue.
The situation does, however, bring into the spotlight one of the most crucial aspects of your rights under the Fourth Amendment – your expectation of privacy.
What is a “Privacy Expectation”?
The Fourth Amendment prohibits warrantless searches that are unreasonable. However, if police look for evidence in a place where you do not have an expectation of privacy, then it's much less likely that what they're doing will be considered a “search.” For example, police don't need a warrant to look through trash that you've left on your curb, because you don't have an expectation of privacy for trash, once you leave it at the curb for pick up.
When it comes to OUI investigations, this idea comes to the forefront – you have very different privacy expectations when it comes to your breath, urine, or blood.
Privacy Expectations in Your Breath, Blood, and Urine
On the one hand, you have very little expectation of privacy in your breath. We exhale all the time, are unable to keep our breath inside us for very long, and do not have an emotional attachment to our breath, after we exhale it. Getting a breath sample is quick, easy, and non-intrusive. Additionally, when police take a breath sample during a traffic stop, the only thing that the breath sample reveals is its alcohol content.
On the other hand, there is a strong expectation of privacy when it comes to your blood. Our blood only escapes our bodies when something has gone wrong, and often creates a significant emotional response when we see someone bleeding. Perhaps most importantly, obtaining a blood sample requires police to literally break into your body, invoking a serious issue of personal autonomy. Additionally, taking a blood sample reveals much, much more than just its alcohol content – a blood sample can also be used to for your DNA and other medically-related processes.
In between these two extremes is your urine. Like your breath, there is little emotional attachment to it, once it leaves your body, and it cannot be withheld for very long. However, like your blood, it takes a significant intrusion into your body for police to obtain a sample without your consent. Importantly, it is this significant intrusion into your body that is making the situation in South Dakota so constitutionally questionable.
Criminal Defense Attorney William T. Bly
Police will try to find evidence of a crime everywhere, including your own bodily fluids and breath. However, your Fourth Amendment rights are stronger where your expectations of privacy are stronger. When police start to intrude on these protected areas, as they are in South Dakota, they need to take significant procedures to make sure that they do not violate anyone's constitutional rights.