A case heading to the Supreme Court from Colorado will provide yet another test for the Fourth Amendment, this time as specifically applied to blood alcohol content testing for suspected cases of DUI. The question at hand is whether or not law enforcement can take a blood sample for testing from a suspect without their consent and still have the results be admissible in court. And so far the courts are balking.

When Jack Schaufele cruised into the busy intersection during rush hour and slammed into an oncoming car, his blood-alcohol level was nearly three times the legal limit.

But a jury may never know there was alcohol in his system.

Arapahoe County prosecutors have asked the U.S. Supreme Court to overturn a decision by a state judge and the Colorado Supreme Court, which found that because the officer did not try to obtain a warrant before she ordered a blood draw on Schaufele, the results may not be presented as evidence. Thirteen other states filed a petition asking the U.S. Supreme Court to pick up the case.

Clearly there were multiple questions about both the facts of the case and how it was handled. At the site of the crash, Schaufele was observed to be “speaking with a thick tongue” by officers, but they said that could have been either from alcohol or from getting hit by the airbag. Three officers had contact with the driver on the scene but did not report smelling alcohol on his breath. It was only a fourth officer, after he was brought in, who smelled it. The driver did not give consent to the blood test that was taken because he was either sleeping or unconscious.

None of that really reaches to the question which the court must decide, however. Without a warrant or consent, can the police conduct a blood test and use the results at trial? The Fourth Amendment would seem to say no. There are, of course, exceptions to this rule, as with most fundamental rights. There are frequent stories of highly controversial “no knock” raids conducted by police without a warrant. But the courts have agreed that there are times when the police simply can’t wait for a judge to sign off if the delay could reasonably be believed to have the potential for additional danger to citizens or property. If the only way to get the hostage out alive is to go in now, they will be forgiven for doing so.

But in the case of a possibly drunken driver who is already in the back of a squad car and posing no threat of further mayhem, it’s tough to argue that the same situation applies. Schaufele was not going to be able to cause more damage and would not be driving any more that morning. He was under the control of the officers on the scene. So the only danger posed by waiting for a warrant would be that the suspect’s blood alcohol level would drop below the legal limit, hurting their chances for a successful prosecution.

I’m sorry to say, but that doesn’t sound like sufficient reason to suspend someone’s constitutional rights. Police work is hard, but we’ve got to follow the rules.