Federal DUIs

January 9, 2013

Missouri v. McNeely argued today in the U.S. Supreme Court

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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October 1, 2012

Because sometimes chemists lie – the latest scandal from Massachusetts

by Goldstein & Stamm, P.A.

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.

June 19, 2012

Williams v. Illinois – What now?

by Goldstein & Stamm, P.A.

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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October 31, 2011

Maryland gets “new” breathalyzers – Intox EC/IR II

by Goldstein & Stamm, P.A.

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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August 12, 2011

To Blow or Not to Blow? – That is the Question!

by Goldstein & Stamm, P.A.

Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

July 1, 2011

Williams v. Illinois – Bullcoming on the defensive

by Goldstein & Stamm, P.A.

Last week I wrote about the decision of the Supreme Court in Bullcoming v. New Mexico. Everyone who participated (I helped to author the amicus brief filed by the National Association of Criminal Defense Lawyers – NACDL) was thrilled. The Supreme Court held that a surrogate chemist could not testify to a blood alcohol reading when he did not supervise or observe the chemist performing the analysis without violating the Sixth Amendment’s Confrontation Clause. This outcome was in doubt due to the replacement of two of the five justices in the majority in Melendez-Diaz v. Massachusetts, Justices Stevens and Souter. They were replaced by Justices Sotomayor and Kagan. Melendez-Diaz held that the chemist had to actually come to court and that a report would not suffice for confrontation purposes.

Melendez-Diaz was a 5-4 decision. The opinion, written by Justice Scalia, was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenters were Justices Kennedy, Breyer, Roberts and Alito. After Melendez-Diaz was decided, on June 25, 2009, the dissenters did not waste any time trying to get it overruled, perhaps to see if they could garner the vote of the justice who would replace Justice Souter, Justice Sotomayor. On the same day as the decision in Melendez-Diaz, the Supreme Court granted certiorari in Briscoe v. Virginia. Unfortunately for the dissenters, Briscoe, which challenged Virginia’s permutation of a notice and demand statute, and required the defense to call the opposing witness in its case, turned out to be a dud. On January 25, 2010, the Supreme Court followed Melendez-Diaz and issue a per curiam reversal in Briscoe. Justice Sotomayor had clearly sided with the Melendez-Diaz majority.

June 24, 2011

Victory in Bullcoming v. New Mexico!

by Goldstein & Stamm, P.A.

Yesterday, the United States Supreme Court announced its decision in Bullcoming v. New Mexico, reversing the New Mexico Supreme Court’s decision allowing the state to introduce a blood alcohol result through the testimony of a chemist who did not conduct the test. The case was argued and won by Jeffrey Fisher of Stanford Law School. I was privileged to have participated, along with Justin McShane, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Smith in writing an amicus brief on the winning side for the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the New Mexico Criminal Defense Lawyers Association. Our brief can be characterized as a kind of “Gas Chromatography for Dummies,” so that non-scientists could understand the complexity of the process, and why it is necessary to be able to question the actual chemist in order to be able to discover potential mistakes in the process or false statements. Footnote 1 of the court’s opinion shows that the five member majority got the message.

Bullcoming should not have any effect on state court proceedings in Maryland. Maryland has what is called a “notice and demand” statute that allows the prosecution to file a notice of a chemist’s report and phlebotomist’s testimony and requires the defense to file a demand for the presence of the chemist or analyst and of the qualified medical person who withdrew the blood. In state court, most lawyers routinely file such demands in blood test cases and unless the chemist comes to court the State cannot use the test result. By requiring the actual chemist and phlebotomist to come to court for the State to use a blood test result, Bullcoming changes nothing in Maryland state court because in almost all cases the actual chemist and phlebotomist is already required to come to court. However, in federal court, there is no comparable notice and demand statute and the government usually tries to introduce the blood test through a lab supervisor.
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June 17, 2011

Federal DUIs in Maryland

by Goldstein & Stamm, P.A.

There are two kinds of federal DUIs depending upon where the arrest was made.

If the arrest was made on property under the jurisdiction of the National Park Service, such as the Baltimore-Washington Parkway, Suitland Parkway, Canal Road, or elsewhere, the charges are made under the Code of Federal Regulations. The maximum penalties are 6 months and/or a $5,000 fine. There is no right to refuse the breath or blood test, and people who refuse a breath test are normally taken to a hospital where blood is withdrawn. Refusal is also a crime, carrying the same potential penalty. Trials are usually before a United States Magistrate judge and there is no right to a jury trial. There is no PBJ or probation before judgment available, so if the judge finds the person guilty it results in a conviction. However, no points appear on the MVA driving record. There is also usually no suspension of driving privileges before or after court, at least on a first offense. Convictions may be appealed, but there is no new trial on appeal as there is in state court.

The second kind of federal DUI occurs on property not under the jurisdiction of the National Park Service such as Andrews Air Force Base, Ft. Meade, the National Institutes of Health, and other locations. Here a federal law called the Assimilative Crimes Act applies. Under the Assimilative Crimes Act, if there is no federal criminal law on conduct made criminal under the law of the state in which the federal property is located, the state’s criminal laws apply. Since there is no federal DUI law, Maryland DUI laws apply on federal property located in Maryland which is not under the jurisdiction of the National Park Service. Under this scheme, the state crimes and penalties of DUI and DWI apply, but federal procedures are used in federal court. Defendants do have a right to a jury trial. Breath test failures and refusals are referred to the MVA as in state cases, but whether the MVA can legally suspend the drivers license for a violation on these federal properties is debatable. Since the penalties are the same as in state court, a defendant can get a PBJ on a first offense. If there is a conviction (no PBJ), points do appear on the driving record and the MVA will seek a suspension or revocation of the drivers license.