WASHINGTON – The U.S. Supreme Court on Jan. 9 struggled with what lawyers can and cannot do when seeking information under the federal Driver’s Privacy Protection Act.

The justices heard arguments in Maracich v. Spears, 12-25, one of two privacy-related cases on the morning’s argument docket. In the second case, Missouri v. McNeely, 11-1425, the justices appeared reluctant to create a categorical rule that police officers do not need a warrant for a blood test in a drunken-driving investigation.

Read the transcipts of the arguments in Maracich and McNeely, as well as briefs in Maracich and McNeely.

The Driver’s Privacy Protection Act of 1997 prohibits the disclosure of personal information in state motor vehicle records. The law lists 14 permissible uses under which a state may disclose the information in those records. The controversy in Maracich v. Spears centers on two of those permissible uses: bulk solicitation with the driver’s express consent, and use in connection with litigation.

After receiving complaints from some car buyers that certain dealerships were overcharging administrative fees, a number of plaintiffs’ lawyers decided to pursue a class action against multiple South Carolina dealerships. In order to find persons who had bought cars from the suspected dealerships during relevant periods, the lawyers submitted Freedom of Information Act requests to the department of motor vehicles seeking names, addresses, phone numbers and information about the purchases.

The lawyers used the information to contact the buyers by mail and to solicit their participation in the litigation. They also used it to establish standing. Some of their FOIA requests were made before the lawsuit was filed, and some afterwards. They ultimately obtained 34,000 records.

However, some car buyers who were contacted by the lawyers sued them under the federal law, charging the lawyers had violated the law by obtaining information for bulk solicitation without their express consent. They sought damages of $2,500 for each violation as well as punitive damages, fees and costs. The lawyers countered that their use was permissible under the “in connection with litigation” exception in the law.

The U.S. Court of Appeals for the Fourth Circuit ultimately held that the litigation exception applied. Even though the lawyers’ conduct might also amount to prohibited solicitation, the appellate court found that there is no claim when the solicitation is inextricably intertwined with conduct expressly permitted by the litigation exception.

During arguments on Jan. 9, a number of justices questioned the car buyers’ counsel, Joseph Guerra of Sidley Austin, about why the lawyers’ conduct was not “investigation in anticipation of litigation,” part of the litigation exception.

Guerra said lawyers can get information under the litigation exception when they are acting as officers of a court or other tribunal, not when they seek it for their own commercial self-interest. They cross the line into impermissible solicitation, he said, when they use the information to invite the person contacted to join the lawsuit.

But Justice Anthony Kennedy said the question, “Are you willing to join the class?” is a critical aspect of class litigation.

Under the federal law, “you can ask every question up to ‘Would you like to join the lawsuit?’” insisted Guerra.

Representing the lawyers, Paul Clement of Bancroft told the justices that all of the activity by his clients “fits comfortably” within the language of the litigation exception.

“Congress seems to be covering the litigation process from cradle to grave,” he said.

“The problem is,” interjected Chief Justice John Roberts Jr., “we have to give some limiting construction.” He and other justices pressed Clement for where he would draw the line between solicitation and investigation in anticipation of litigation.

“The line between solicitation in anticipation of litigation and investigation in anticipation of litigation is too fine a line to be drawn,” said Clement.

“It doesn’t work. They are two sides of the same coin.” Roberts rejoined, “So your position is [the law] creates a special solicitation exemption for lawyers.”

Clement countered that his line is that the information must be sought and used in anticipation of specific litigation involving a transaction, occurrence or defect.

Warrantless blood test

In the drunken-driving case, Assistant Prosecuting Attorney John Koester Jr. of Jackson, Mo., told the justices, “In the course of a drunk-driving investigation, quickly securing blood alcohol evidence with as little delay as possible is incredibly important.”

Because alcohol dissipates quickly in the blood, he urged the justices to adopt a per se rule that no warrant is required to obtain a blood test. The quick dissipation of the alcohol, he said, is an exigent circumstance under the Fourth Amendment justifying the lack of a warrant.

A number of justices quizzed Koester on why it was impractical to obtain a warrant. The officer who arrested Tyler McNeely had been on the force 17 years and had testified that he sought a warrant only 10 times and never had difficulty getting one.

Koester said the problem was not in obtaining a warrant but the delay in getting one. In this case, he said, it would have taken 90 minutes to two hours. McNeely had refused to take a breath test as well as the blood test.

Assistant to the Solicitor General Nicole Saharsky emphasized Koester’s point about the need to move quickly.

“Here the police are facing a destruction of critical blood alcohol evidence,” she said. “Every minute counts, and it’s reasonable for the officers to proceed without a warrant.”

Kennedy asked Koester if the court should look to other states’ practices to determine the reasonableness of a warrant requirement. Koester conceded that 25 states have laws prohibiting warrantless blood draws, but, he added, 15 of them had joined Missouri in support of its argument.

Kennedy also asked whether conviction rates were lower in states banning warrantless blood tests than in those permitting it. Koester said one study showed no difference in the rates, “but if you have concrete evidence, you have a better chance of conviction.”

Representing McNeely, Steven Shapiro of the American Civil Liberties Union, said the risk of a per se rule was that states with the slowest, most cumbersome warrant procedures would get a “free pass.” He urged the justices to adopt a totality-of-the-circumstances test for whether a warrant is required for blood draws in routine driving-under-the-influence cases.

“If there are special facts external to the warrant requirement, then you have to apply a totality-of-the-circumstances test, and you ought to apply a reasonableness standard,” he argued. “In the context of the delays that are intrinsic to the warrant requirement, absent any evidence that those intrinsic delays have interfered with the ability of 25 states in the country to enforce their drunk driving laws, this court ought not to adopt a categorical exception to the warrant requirement.”