Articles Posted in Breath testing

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Every breath test in Maryland is subject to suppression.  Every administrative suspension based on a failed breath test should be thrown out.  The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test.  The question is – can the State put someone in jail for refusing to consent to a search of their body?  Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search?  And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test?  The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test.  If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law.  In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).  These cases will be argued in the Supreme Court on April 20, 2016.

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The Maryland House of Delegates took the courageous step of passing Noah’s Law, HB 1342, with substantial amendments.  The amendments make the bill a much more rational and humane way of encouraging sober driving while not unnecessarily punishing social drinkers or putting them out of work.

The law deals with test failures and refusals before court and the effect of convictions after court.

Under current law a person who submits to a test and has a reading of 0.08 or more and less than 0.15 faces a 45-day suspension for a first offense and 90-day suspension for a second or subsequent offense.  On a first offense or a second or subsequent offense more than five years after the first the suspensions may be modified by an administrative law judge to allow restricted driving for purposes of work, school, alcohol education or treatment, or medical treatment for the licensee or family members.  Noah’s Law changes this to increase the suspension periods from 45 to 90 days and 90 to 180 days.  The proposed law also eliminates the work etc. permit provision and requires these offenders to get an ignition interlock for the period of suspension.  The House amendments restore the work etc. permit but leave the increased length of suspensions in place.

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The Supreme Court today granted certiorari in three cases Birchfield v. North Dakota (14-1468); Bernard v. Minnesota (14-1470); and Beylund v. North Dakota (14-1506).  These cases raise the question left open after the Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013): can a state make the refusal to submit to a breath or blood test for alcohol a crime, punishable by imprisonment?

Police are presumptively required to obtain a warrant before obtaining a blood test for alcohol.  Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The Supreme Court will now decide whether a warrant is required for a breath test, whether the refusal to consent to a breath or blood test can be made a crime, and whether advice that refusal is a crime carrying a possible jail sentence renders any consent to submit to a breath or blood test coerced and involuntary.  However, relevant authority and review of Supreme Court cases compels an answer of yes – a warrant is required for a breath test, no – a refusal to consent to a breath test cannot be made illegal without violating the Fourth Amendment, and yes, advising a suspect that refusal is a crime punishable by imprisonment renders any consent given coerced and involuntary.

Warrantless searches are presumptively unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).  Where there is a warrantless search, the government has the burden of proving the legality of the search, that it was conducted pursuant to a recognized exception to the warrant requirement, such as exigent circumstances, consent, and search incident to an arrest.  In United States v. Reid, 929 F.2d 990 (4th Cir. 1991), the Fourth Circuit held that a warrant was not required to conduct a breath test during a DUI investigation because a breath test was a permissible search incident to an arrest and was conducted under exigent circumstances.  However, Reid was overruled by McNeely, to the extent that it relied on exigent circumstances. United States v. Brooks, No. CRIM. PWG-14-0053, 2014 WL 2042028, at *5 (D. Md. May 16, 2014).  The search incident rationale of Reid is also no longer valid due to the Supreme Court decisions in Arizona v. Gant, 129 S.Ct. 1710 (2009) and Riley v. California, 134 S.Ct. 2473 (2014).  The final possible applicable exception to the warrant requirement is consent.  However, where, the “consent” is obtained by a threat of incarceration, the consent is coerced and is not voluntary.  State v. Won, 2015 WL 7574360, — P.3d — (Haw. 2015).

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The Hawaii Supreme Court announced its decision today in State v. Won.  The court held that where a suspect in a DUI case is told that it is a crime to refuse to submit to an alcohol test, that consent to submit to the test is coerced and invalid because it is not voluntary.   The Fourth Amendment requires that searches be conducted pursuant to a search warrant or the government must rely on an exception to the warrant requirement.  In most DUI cases, the government relies on consent to justify warrantless breath and blood tests.  However, some jurisdictions have criminalized refusal to submit to a test, providing that refusal can result in a jail sentence.

The Hawaii court said:

Where arrest, conviction, and imprisonment are threatened if consent to search is not given, the threat infringes upon and oppresses the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.30 See id. at 261-63, 925 P.2d at 829-31 (finding that a permissive response to a request to search the defendant resulted only from “inherently coercive” circumstances that were “calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw. at 508, 824 P.2d at 835 (same). Thus, the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive.  [Footnotes omitted].

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The Court of Appeals announced its decision in Norton v. State today.  I was privileged to have been local counsel on the amicus brief filed by the Innocence Network in this case.  The case was a win for Norton, but more importantly, it was a win for all defendants who wish to confront scientific evidence offered against them in court.

The rules governing application of the Confrontation Clause have been changing over the past few years.  A series of cases had helped to expand the ability of defendants to confront scientific evidence: Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico.  These cases required the State to produce in court a chemist who actually tested a defendant’s blood in a DUI case.  I was also privileged to have helped to write the amicus brief filed in Bullcoming by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

Unfortunately, in Williams v. Illinois, the Supreme Court backtracked and ruled that in a DNA case, the State did not have to produce the analyst.  However, there was no majority for what became a plurality opinion of four justices.  There were also four justices in dissent.  The deciding vote was cast by Justice Thomas, who agreed with the dissenting justices with respect to their reasoning but voted to not require confrontation because the document stating what the DNA results were was not sufficiently formal.  This confusing alignment of justices brought into question what rule should be applied by the lower courts.

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In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.

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On last Thursday, June 5, 2014, Leonard Stamm went on Al Jazeera America to discuss last year’s Supreme Court decision in Missouri v. McNeely. He was interviewed by reporter John Henry Smith.

JHS: Drivers stopped on suspicion of driving under the influence in Tennessee are sometimes forced to submit to a blood test. The State allows officers to demand a driver give blood if they refused to take a breathalyzer test. Tennessee is not the only place where this is being done. Wyoming and some parts of Atlanta have similar laws on the books. And Georgia is considering allowing it statewide. It’s a controversial practice that critics say is a violation of a person’s right to privacy. Joining us to discuss the legal implications is Leonard Stamm, a criminal defense attorney, and executive committee member with the National College for DUI Defense. He’s in Washington, D.C. this morning. Mr. Stamm, how can law enforcement pull people over suspected of DUI and demand a blood sample. Is that not a violation of a person’s Fourth Amendment right against unreasonable searches and seizures?

LRS: Well last year the Supreme Court decided the case of Missouri versus McNeely, and the Supreme Court held that before police can take blood from somebody that unless there’s some kind of emergency that impedes their ability to get a warrant they have to call a judge and get a warrant before they can stick a needle into and pierce somebody’s skin to get a blood sample.

JHS: Well in Tennessee, if a driver refuses a breathalyzer or a blood test, police officers can get a judge to issue the warrant and force the person to comply. Can a suspect be physically restrained and forced to give blood?

LRS: Well yes they can but it has to be done in a medically appropriate manner. So I think that if the police officer is holding somebody down on the side of the road and poking them with a needle, or has been documented in other news stories, on the floor of the jail or put in a chair and have a hood put over their head, I don’t think courts will approve those kinds of procedures. But if it’s done in a medically appropriate manner – what the Constitution requires, what the Fourth Amendment requires is that before police do it they just can’t poke somebody without getting a judge to approve it first so if a judge approves it, then the second question is, the first question is: is there probable cause for the search. If the judge approves it, there’s going to be a requirement that they perform the test in a medically appropriate manner.
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The Court of Appeals announced its decision today in Deering v. MVA. When a driver is arrested for DUI and asked to take a breath or blood test in Maryland, and the driver’s reasonable request to consult with a lawyer before deciding is denied, the driver may not argue at the driver license suspension hearing that the denial of counsel requires not suspending the driver’s license.

The Court noted that the cases relied upon by the Court of Appeals in its 1984 decision, Sites v. State, which recognized the right to consult with counsel under the federal Constitution’s 14th Amendment’s due process clause, have mainly lost their authority. However, Sites also rested on the state due process clause. The Court said:

Although Sites rested its holding on both the Fourteenth Amendment of the federal Constitution and Article 24 of the Maryland Declaration of Rights, its analysis focused almost entirely on cases construing the federal Constitution. Given the scarce support for that analysis of the due process clause of the federal Constitution, the Sites Court’s rationale rests on a precarious footing. Of course, because the Sites decision was also based on Article 24, it is conceivable that this Court could hold that the State constitution confers such a right, even if the federal Constitution does not. Cf. DeWolfe v. Richmond, 434 Md. 444, 76 A.3d 1019 (2013) (holding that an indigent defendant in a criminal prosecution is entitled, under Article 24 of the Maryland Declaration of Rights, to State-furnished counsel at an initial bail hearing before a District Court commissioner without deciding whether that right also emanates from the due process clause of the Fourteenth Amendment). In any event, we need not decide the continuing vitality of Sites to decide this case.

Even if Sites remains good law under a State constitutional theory, the ultimate question before us is whether the violation of any such right affects the imposition of an administrative sanction under TR §16-205.1.

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In Missouri v. McNeely, the Supreme Court held: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” At first blush, it appeared the main impact of the decision would be in the few jurisdictions where warrantless blood tests were the norm before April 17, 2013, the date McNeely was decided. But upon further reflection, it appears that McNeely requires the suppression of all warrantless breath tests.

Warrantless searches are presumptively unreasonable. Where there is a warrantless search, the government has the burden of proving the legality of the search, that it was conducted pursuant to a recognized exception to the warrant requirement, such as exigent circumstances, consent, and search incident to an arrest. However, none of those exceptions to the warrant requirement help the State when it comes to breath tests.

The case of Skinner v. Railway Executives Ass’n made it clear that a breath test is a search. McNeely held that exigent circumstances did not exist in every DUI case to allow police to dispense with obtaining a warrant to obtain blood. If it takes a comparable amount of time to obtain a breath test as it does to obtain a blood test, then exigent circumstances cannot be claimed to justify not getting a warrant for a breath test.

Another argument the State could make is that under Maryland’s implied consent law the defendant consented to take a test. However, the decision to submit is only after the defendant is warned that a lengthy license suspension may be imposed if he or she refuses and is also told that a refusal may carry more jail time. These implied consent statutes contain a coercive character that would likely invalidate the voluntary consent required by the Fourth Amendment. A number of states have agreed with that analysis.

The final argument the State could make is that the search was conducted incident to an arrest. However, the Supreme Court limited the applicability of search incident to arrest in Arizona v. Gant. A search incident to arrest is for officer safety and may not be conducted after arrest. The breath test in DUI cases is conducted at the police station long after the arrest. So this exception is unlikely to help the State either.
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This past Thursday the Maryland Court of Appeals held oral argument in Motor Vehicle Administration v. Deering. John K. Phoebus of Salisbury, Maryland argued on behalf of Ms. Deering that Deering’s license should not have been suspended when the police officer would not let her call her lawyer before deciding whether to take or refuse a breath test. She elected to submit to the breath test and failed. The rule of Sites v. State, decided in 1984, is that when a person arrested for DUI asks to call a lawyer, they must be allowed an opportunity to do so that does not interfere with the State’s ability to obtain a breath test. The rule was clearly violated in Deering’s case, but the MVA argued that the violation cannot be raised as a defense at the administrative hearing, only in court.

An amicus brief filed by Leonard R. Stamm on behalf of the National College of DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) came up during oral argument. Chief Judge Mary Ellen Barbera noted that one of the claims in the brief was that if the Court ruled in the MVA’s favor it would be changing the status quo. The brief stated that the Sites defense has been allowed at MVA hearings for 30 years. The brief also stated that it was only relatively recently that a growing number of judges have started to disallow the defense, as a result of the Court’s decision in Najafi v. Motor Vehicle Administration. Najafi had stated in dicta (meaning a statement by the Court that is not necessary to resolve the case and therefore not binding on lower tribunals) that the denial of counsel defense could not be raised at the MVA license suspension hearing. However, Chief Judge Barbera noted that there was no data cited to support this statement and wanted to know from counsel whether they agreed with it. Counsel for the MVA, Leight Collins, did not dispute the statement and acknowledged that there is no data base from which data could be culled to support or opposed the statement. Rather, there are paper records of the hearings. So there is no data that could have been provided.

The amicus brief was also quoted in the Daily Record.

“The manner in which the officer reads the form can…detract from its ability to be understood,” attorney Leonard R. Stamm wrote in the friend-of-the-court brief. “Additionally, most suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized.”
Stamm is with Goldstein & Stamm P.A. in Greenbelt.

A number of judges asked whether officers were required to advise suspects of their right to call a lawyer. The Court had rejected a similar claim years earlier in McAvoy v. State.
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