West Virginia Law Review

Document Type



The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and in- tangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implica- tions of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside - the preservation of bodily integrity. As technology has ren- dered the human body an ever-increasing source of crucial evi- dence, the Supreme Court has remained largely silent on the government's power to harvest information through medical procedures. Since the Court's consideration of the constitutio- nality of compelled blood draws in Schmerber v. California, 384 U.S. 757 (1966), the Fourth Amendment questions atten- dant to bodily evidence have been largely left to the states. This Article examines a narrow subset of that state-level develop- ment: non-consensual DWI blood draws. A review of the state statutory and jurisprudential applications of Schmerber reveals increasing disagreement over the scope of the Fourth Amend- ment when police seek to recover fleeting evidence of blood al- cohol content. Based on this review, this Article suggests a number ofpolicy proposals designed to better insure police stay within the Fourth Amendment strictures of Schmerber while al- so procuring the most effective evidence possible.



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