Articles Posted in Criminal justice news

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The Supreme Court today announced its opinion in Missouri v. McNeely and ruled that police in DUI investigations may not automatically avoid seeking a search warrant to obtain a blood sample where the defendant does not consent to a blood test. This is the third win as amicus curiae for the National College for DUI Defense which filed an amicus brief with the National Association of Criminal Defense Lawyers.

The Court said:

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. See McDonald v. United States, 335 U. S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”).

It is interesting counting the votes again.

With respect to the proposition that there is no per se DUI exception to the warrant requirement in so far as non-consensual blood tests are concerned, the vote is 8-1 (only Thomas dissented from the holding). Since that was the only basis urged by Missouri for decision, the Missouri Supreme Court was affirmed. Missouri never appealed the question of whether the officer in this case acted reasonably.

As a result, Justice Kennedy wouldn’t touch when and whether it might be reasonable for an officer to get blood without a warrant. He is willing to wait for the next case to do so. In so far as there was a discussion about how to determine when and whether an exigency exists there were 3 votes for kind of a special totality test where if the warrant couldn’t be obtained without any delay at all, then it might not be needed (Roberts, Alito & Breyer). But Sotomayor, Kagan, Scalia and Ginsburg disagreed with this approach.
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Today, the Supreme Court heard argument in the case of Missouri v. McNeely. The case involved police obtaining a blood alcohol test without a warrant. The officer, who had previously had no difficulty obtaining warrants before getting blood samples in DUI cases had mistakenly believed that Missouri law had changed. Because there was nothing unusual about the case, the Missouri Supreme Court distinguished the 1966 Supreme Court case of Schmerber v. California, where due to the delay occasioned by an accident investigation and the defendant’s trip to a hospital, and the dissipation of alcohol in the blood, the Supreme Court allowed a warrantless blood draw. In this case, the Missouri Supreme Court held that the state had failed to show the special circumstances that would have allowed police to skip getting a warrant.

The State of Missouri requested review, posing the following question:

Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream

McNeely was represented in the Supreme Court by Steven Shapiro, legal director of the ACLU. McNeely was supported by a number of amicus briefs, including one filed by the National College for DUI Defense and the National Association of Criminal Defense Lawyers and co-authored by Leonard R. Stamm, Jeffrey Green, and Jeffrey Beelaert.
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There has been quite a bit of litigation in the past few years on the subject of what witnesses must be produced by the government to prove the results obtained for scientific testing for drugs and/or alcohol. The Supreme Court has taken a case a year on this question, starting with Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)(no chemist), Briscoe v. Virginia, 130 S. Ct. 1316, 175 L. Ed. 2d 966 (2010)(who must subpoena the witness), Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)(substitute chemist), and Williams v. Illinois, 132 S. Ct. 2221 (2012)(underlying opinion in DNA match). The government usually claims that it is unnecessary to bring these chemists to court because what they are doing is very routine, in the regular course of business, that the results are not really used for their truth (huh?), and that it would be too burdensome to bring these witnesses to court. But as is reported in the following disturbing article, sometimes chemists lie, and lie a lot.

The story, which is reported in the Boston Globe on September 30, 2012, is titled “How chemist in drug lab scandal circumvented safeguards.” According to the article, state drug lab chemist Annie Dookhan has been charged with two counts of obstruction of justice, for falsifying drug test results and for falsifying her academic record. Dookhan is accused of skipping necessary tests (dry-labbing) altering records, contaminating samples, and signing other chemist’s names, placing in jeopardy between 34,000 and 60,000 convictions.

This sad story simply illustrates what we all already know, witnesses are human, and sometimes humans lie. While confronting the lying witness in court may not always or even frequently uncover the lie, to allow a witness who supplies testimony that is critical for a conviction to avoid appearing in court is unfathomable and cannot be justified by simple cost benefit analyses.

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Today the Supreme Court granted certiorari sought by Missouri in Missouri v. McNeely. McNeely was suspected of DUI when police had blood withdrawn without a warrant. The Supreme Court of Missouri held that a warrant was required when the facts fell outside the narrow exception created in Schmerber v. California. See State v. McNeely.

Schmerber allowed a seizure of blood without a warrant due to the exigency created by dissipation of alcohol in the blood where an accident occurred and the suspected driver was taken to the hospital. The Supreme Court said:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Since McNeely was not in an accident and was not taken to the hospital the Supreme Court of Missouri affirmed the trial court’s holding that a warrant was required.

The question to be addressed by the Supreme Court is whether to uphold the Missouri Supreme Court’s conclusion:

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

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Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court’s recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim’s rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William’s DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality – 4-1-4 – that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality’s reasoning was wrong.
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I recently read a disturbing opinion piece in the New York Times – My Guantánamo Nightmare. The author, Lakhdar Boumediene, wrote the following:

On Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

We are brought up to believe that such things cannot happen in our country. They can. And they are happening right now. Our criminal justice system is designed to place a premium on due process – notice of charges, the presumption of innocence, requiring the government to prove its case beyond a reasonable doubt, the right to a jury of one’s peers. A delicate balance exists that prevents persons accused of committing crimes from being held incommunicado without charges filed, supported by probable cause.
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A recent news story disclosed that Howard County police officers were required to write a predetermined number of tickets each shift. Judge throws out DUI case, saying police had quotas – Howard County police chief calls ruling a bad decision. According to the story the Howard County Police Chief was quoted saying that a federal grant to aide enforcement of traffic laws required officers average 2-4 citations per hour on the street.

McMahon said the grant “mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.”

As a result the District Court for Howard County granted a defense motion to dismiss the charges.

In future cases, defense lawyers must find out if their clients’ stops were made by officers operating under a quota, as reported by a follow up story. Drunk-driving quota case may lead to similar efforts elsewhere – Prosecutors look at possible appeal as defense lawyers suspect issue may affect other cases.

Leonard Stamm, a Prince George’s County lawyer who wrote a legal handbook called “Maryland DUI Law,” said the case puts lawyers who defend people charged with drunken driving on notice for a potential avenue for defense.

Though as a District Court ruling it has no bearing on other cases, defendants coming before other judges can bring it up. “Now that it’s out there, it’s something you have to look for,” Stamm said.

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Maryland jurisdictions have slowly been replacing their 10 year old breathalyzers – affectionately called “breathaliars” by some – Intox EC/IR with the new breathalyzers – the Intox EC/IR II. This machine, manufactured by Intoximeters, Inc. in St. Louis, Mo. has a few improvements over its predecessor, according to the manufacturer.

In a letter dated July 6, 2006, M.R. Forrester, Chairman of Intoximeters, Inc., wrote the following about the newer EC/IR II:

One of the main reasons the EC/IR II was developed was certain parts of the EC/IR I were becoming obsolete, which made them harder to find and more expensive to replace. The primary difference concerns the Microprocessor on the motherboard and the case set. The analytical module in the EC/IR II is very similar to the one used in the EC/IR I in that we are using the same Fuel Cell sensor and sampling system. The microprocessor change is necessary because the EC/IR I microprocessor has been made obsolete since it is a state of the art device, which works at a far higher processor speed.

As often occurs with technological advances, the shortcomings of old technology are highlighted by the developments of new technology. For example, the higher flow of the new purge fan “is capable of opening [a] stuck mouthpiece.” The implication here is that the mouthpiece on occasion can get stuck, resulting in the machine recording insuficient breath. Additionally, the case set notes that there is higher “R[adio][]F[requency] immunity.” Although there is a claim that “RF immunity is adequate” in the EC/IR I, the need for higher RF immunity in the EC/IR II suggests otherwise. Other improvements made in the EC/IR II with serial numbers over 10,000 include modifications incorporating “additional test memory capacity, additional hardware to allow recirculation of a wet bath simulator, and enhanced EMC and RFI immunity.”
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Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Leonard R. Stamm as the “Washington DC Best Lawyers DUI/DWI Defense Lawyer of the Year” for 2012.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 18th edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.
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