Now that the U.S. Supreme Court has affirmed the Second Amendment means what it says and First Amendment restrictions apply evenly, we can look forward to the Fourth Amendment challenge that Ohio law will present.

Some clearheaded people in state government recognize this, even if at least one is uncomfortable with an ally in this argument. Others, facing elections in the fall, need to look tough on crime — and they later will have a “liberal, activist” judge to blame for restoring the Constitution.

Ohio lawmakers this month overwhelmingly passed a law that gets tough on repeat drunken drivers. Among its provisions, however, is one that allows law enforcement to draw blood for a chemical test of blood alcohol content if someone refuses a Breathalyzer test. All but two of this region’s nine lawmakers voted for the bill, so perhaps it’s worth reminding the other seven area legislators what the Fourth Amendment says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As state Rep. Matt Huffman, R-Lima, and the American Civil Liberties Union both see it, authorities still need a judge to issue a warrant to draw blood. As ACLU-Ohio Executive Director Christine Link writes, judges are readily available around the clock. Huffman was one of six representatives to vote against Senate Bill 17, which all 33 members of the Ohio Senate passed.

But, Republican state Sen. Timothy Grendell, the bill’s sponsor, and Summit County Prosecutor Sherri Bevan Walsh, who said she wrote the provision of Senate Bill 17 in question, have a Supreme Court case to reference. In the 1966 case Schmerber v. California, the high court ruled the officer in question acted properly in having a doctor at a hospital draw blood to test the blood alcohol level of a man who had run his car into a tree.

The court made clear its ruling applied to that particular case. It didn’t erase the Fourth Amendment.

What’s likely is that municipal law directors, who deal more regularly with drunken drivers than does a county prosecutor or a state senator, will advise police to continue to seek a warrant before taking blood. Eventually, however, someone will have cause to challenge this provision of an otherwise good bill. Huffman and the ACLU believe the state will lose the challenge.

Which brings us to that uncomfortable ally. Huffman, in a TV interview several days after The Lima News editorial on Senate Bill 17 appeared, restated his opposition but said the ACLU weighing in the same way hurts his argument. Good Allen County conservatives can’t be seen agreeing with the liberal ACLU.

Or can they? Sure enough, conservatives and the ACLU have agreed on constitutional principles. Libertarian Party presidential candidate Bob Barr, a former Republican congressman from Georgia, sided with the ACLU against the Patriot Act — this from the representative who drafted the Defense of Marriage Act. An Ohio congressman, Steve LaTourette, was on the ACLU’s side voting against stripping detainees at Guantanamo Bay, Cuba, of habeas corpus rights — which the Supreme Court since has restored.

Other examples exist. If this troubles conservatives, they should take solace in knowing that even someone who is often wrong — leave it open as to whether that means the ACLU or the conservative — sometimes does come down on the correct side of an issue.

Ronald Lederman Jr. is editorial page editor of The Lima (Ohio) News. E-mail him at rlederman@limanews.com. Lederman appears at 3:30 p.m. Mondays on “Talk with Ron Williams,” on WZOQ (940 AM) or at www.espnlima.com.

This entry was posted on Sunday, June 29th, 2008 at 12:01 pm and is filed under Columns. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.