Andrei Nedelcu


A vehicle on a public thoroughfare is observed driving erratically and careening across the roadway. After the vehicle strikes another passenger car and comes to a stop, the responding officer notices in the driver the telltale symptoms of intoxication—bloodshot eyes, slurred speech, and a distinct odor of intoxicants. On these facts, a lawfully-procured warrant authorizing the extraction of the driver’s blood is obtained. However, the document fails to circumscribe the manner and variety of testing that may be performed on the sample. Does this lack of particularity render the warrant constitutionally infirm as a mandate for chemical analysis of the blood? And, more broadly speaking, is there reason to posit that testing of the blood is a distinct Fourth Amendment event relative to its initial procurement? This Note—against prevailing trends in national search and seizure jurisprudence—answers both of the preceding questions in the affirmative. In reaching these conclusions, I explore a novel “testing-as-search” paradigm that rebuts longstanding presumptions in Fourth Amendment case law. In essence, I use this analytical template to argue that DUI defendants (among others) retain a reasonable, ongoing privacy interest in their blood once it has been extracted as evidence in a prosecution. As a necessary corollary to this thesis, I also submit that police should not exploit chemical analysis of a defendant’s blood in the absence of a warrant narrowly tailoring the scope of testing that may be performed.