Attorneys For North Dakota And Minnesota Bombed Before The Supreme Court Today


Earlier today I wrote about an issue surrounding blood tests in DUI cases which was before the Supreme Court today.

The case is Birchfield vs. North Dakota, though it consists of three consolidated cases, two from ND and one from Minnesota. The issue is whether or not state laws in Minnesota and North Dakota criminalizing the refusal of a blood test are constitutional. In North Dakota the law makes a refusal the same type of crime as a DUI.

That seems pretty clear cut to me. How can you have the right to refusal an unwarranted search by law enforcement if your refusal makes you guilty of a crime?

And maybe the attorneys representing North Dakota and Minnesota kind of agree, because they beclowned themselves in oral arguments today. You can read the transcript of the arguments here.

Mark Stern has a write up of the arguments at Slate, focusing on an exchange which had the justices wondering why in 2016 states like North Dakota can’t just make it easier for cops to get a warrant if they need one.

North Dakota’s attorney didn’t exactly make a convincing argument:

“Why is it harder to get somebody on the phone in rural areas than in big cities?” Justice Anthony Kennedy asks. “I would think people in the rural areas were sitting waiting for the phone call.” In other words, judges in rural areas are frequently less busy than those in cities, at least according to Kennedy. Shouldn’t they be available to answer a call from a cop?

McCarthy defends North Dakota, insisting that it has a “lack of resources and manpower.”

“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”

Justice Elena Kagan jumps in.

“I think what people are asking you,” she says patiently, “is to try to get some sense of the real-world harms here.” Imagine a system where cops could get a warrant within 10 or 15 minutes, Kagan offers. “What would be the problem with just relying on a system like that?”

McCarthy begins to talk about Fourth Amendment complications, and Kagan butts in.

“But I’m asking about your practical needs,” she reminds him. Yet McCarthy continuesto talk about the complexities of Fourth Amendment law, seemingly ignoring Kagan’s question.

“I did not understand that answer!” Kennedy says. “We’re saying: Suppose it takes 15 minutes. What then?”

“Well … ” McCarthy begins, but Kennedy just gives up and starts lecturing.

Read more at the link. Thomas McCarthy (bio here) was North Dakota’s attorney. Minnesota’s attorney actually managed to do even worse. You definitely want to read the whole article.

McCarthy does not work for the North Dakota Attorney General’s office. He was hired as outside counsel to handle this case, apparently. I’m going to check in what the costs have been for handling this case.