Articles Posted in Federal DUIs

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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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Last week the Supreme Court decided the case of Heien v. North Carolina. In an 8-1 decision, the Court decided that even though an officer stopped a driver for conduct that was later decided NOT to be illegal, that the officer’s objectively reasonable belief that the conduct was illegal saved the stop from violating the Fourth Amendment. Surprisingly, some of the justices that can usually be counted on to protect the privacy rights of Americans, namely Justices Scalia (yes he is one of the better ones on Fourth Amendment issues), Ginsburg, Kagan, and, frequently Kennedy, failed to do so in this case. Only Justice Sotomayor dissented from the decision in Heien.

The Heien case dealt with what I will call the two versus three brake light issue. Many states enacted laws requiring two brake lights on cars and also laws requiring all equipment on a car to be working. The two brake light laws were enacted at a time when cars only had two brake lights. Since the enactment of these laws, many cars have been made with three brake lights. As is not uncommon, in many states the law has lagged behind technology. In those states, there has been a legitimate debate about whether a car with three brake lights, and one out, was in violation of the law.

In Heien, the officer stopped a car with three brake lights, and one out. Drugs were found in the car, which is why Heien challenged the stop. The trial court denied his motion to suppress and Heien appealed. Subsequently, the North Carolina Court of Appeals held that two working brake lights were all that was required and reversed. (Maryland requires three). The North Carolina Supreme Court reversed and upheld the conviction, even though the State did not challenge the intermediate court’s ruling on the brake light law. So Heien appealed to the Supreme Court.

One might have thought that when the North Carolina intermediate appellate court ruled that Heine’s vehicle was not in violation of North Carolina law, and that the ruling was not challenged, that it’s conclusion that the stop was illegal would have been upheld, even though the quesstion was debatable at the time the officer stopped Heien. However, the Supreme Court ultimately held that because the officer’s belief that Heien’s vehicle was violating North Carolina law although wrong was objectively reasonable, the stop did not violate the Fourth Amendment. It is important to note that the Court did not say in Heien, as it has said in some cases, that although the officer violated the Fourth Amendment that the exclusionary rule should not apply where a statute or court decision requires the officer to act in a way that is later held to violate the Fourth Amendment. In Heien, the Court held that the officer’s stop did not violate the Fourth Amendment.

The decision is troubling for a number of reasons. One is that frequently high court decisions get watered down or misunderstood by officers, prosecutors, and lower courts resulting in an overall diminution of our Fourth Amendment freedoms, and hence an increase in the number of times drivers observably violating no law will be stopped and detained by police, and the stops will later be upheld by courts. In the past, an officer could not rely on unsettled legal issues to avoid the application of the exclusionary rule to a search and/or seizure. As Justice Sotomayor points out, there is not really any support in prior cases for rewarding an officer’s mistake of law. And there is little incentive for courts to resolve questions of law if they only need to decide if the officer’s belief that the law was violated was “objectively reasonable.”
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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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Just last term the United StatesSupreme Court held in McNeely v. Missouri, that a warrant is presumptively required before obtaining a blood sample from a drunk driving supsect. However this week, in Navarette v. California, the United States Supreme Court, in a 5-4 decision, held that a police officer does not have to confirm an anonymous tip of reckless driving before stopping a vehicle.

A woman who actually identified herself on a 911 call, but was not identified in court, said she had been run off the road by a truck, and provided a description and tag number. An officer located the truck and followed it without observing any other traffic violations. A five member majority found that even though no other violations were observed by the police officer, the officer had articulable reasonable suspicion of drunk driving under the totality of the circumstances. The Court suggested that if the information provided by the caller had been less specific or the offense alleged less serious, that the information would have been insufficient to justify the stop.
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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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Annie Dookhan, a former forensic chemist at a state forensic laboratory in Massachusetts, pleaded guilty to 27 counts of falsifying test results, misleading investigators, and tampering with evidence. She was sentenced this week to 3-5 years in prison. followed by 2 years of probation. In the course of her career she filed reports in approximately 40,000 criminal cases, which are now under review.

This is an extreme case, but it highlights the need for defense lawyers to carefully scrutinize state police laboratory results and methods to uncover mistakes resulting from incompetence, negligence, and fraud in criminal cases. Newpaper stories are replete with cases of laboratory mistakes that have resulted in erroneous convictions.

The amicus brief filed by the National Association of Criminal Defense Lawyers and the National College for DUI defense in Bullcoming v. New Mexico, co-written by Leonard R. Stamm said:

“Forensic evidence is not uniquely immune from the risk of manipulation.” Melendez-Diaz, 129 S. Ct. at 2536. The recent report by the National Research Council of the National Academies, Strengthening Forensic Sciences in the United States: a Path Forward (2009) (NAS Report), confirmed what defense lawyers have long known: because forensic analysis is a product of human discretion, it is vulnerable to incompetence, error and sometimes even fraud. See also Solomon Moore, Science Found Wanting in Nation’s Crime Labs, N.Y. Times, Feb. 5, 2009, available at http://www.nytimes.com/2009/02/05/us/05forensics.html (last visited Dec. 1, 2010). As the NAS Report revealed, forensic analyses “are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.” Id. The NAS Report verifies that forensic science is anything but infallible, and is instead fraught by very human errors leading to problems such as sample contamination and inaccurate reports. Id.

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The United States District Court for the Southern Division of Maryland in Greenbelt issued its first ruling Friday granting a defense motion to suppress a warrantless blood test as a result of the Supreme Court decision in Missouri v. McNeely. Magistrate Judge Thomas M. DiGirolamo issued a 19 page written opinion holding that McNeely applied to cases pending at the time of its issuance, that the Government did not demostrate sufficient exigent circumstances to justify dispensing with a warrant, and that the Fourth Amendment exclusionary rule did apply in the case of United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013).

The opinion stated:

The government asserts that this case falls within the exigent circumstances exception. Specifically, it points to the 30 minute delay in the taking of the defendant’s blood due to the defendant’s failure to cooperate with the breath test at the station. The Court does not find that said delay combined with the natural dissipation of blood-alcohol brings this case within the exigent circumstances exception. This is simply not a case where the exigencies of the situation were so compelling to excuse the need for a warrant. Officer Weisbaum described this incident as a “routine” DWI stop. While this alone does not mean a warrant is required, it is a “special fact” to be considered. See McNeely, 133 S.Ct. at 1568. Additionally, unlike Schmerber, time did not have to be taken to investigate an accident or attend to the suspect’s personal injuries. There was nothing about the defendant’s physical or mental condition, or behavior, which required the expenditure of time in addition to what would normally be expended in a routine DWI stop. Officer Weisbaum testified that it is common for defendants to at first agree to cooperate with the breath test and then not blow sufficiently, resulting in a failed test. The Court does not find that the totality of the circumstances present in this case constitute such an emergency to excuse the officer from obtaining a warrant prior to the taking of the defendant’s blood. Given that the defendant did not consent to the blood test, the Court finds the taking of his blood was in violation of the Fourth Amendment.

There remain pending in Greenbelt a number of unresolved motions to suppress due to the policy of the U.S. Park Police to obtain blood samples in DUI cases without first seeking a warrant prior to the Supreme Court’s decision in Missouri v. McNeely, on April 17, 2013. The U.S. Park Police was one of a very small number of jurisdictions in the United States that followed the practice of getting blood samples from DUI suspects without first getting a warrant. The vast majority of states that obtained blood samples were already seeking and getting judicially issued warrants before drawing blood in DUI cases.
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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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