Can an Unconscious Driver Give Consent to have a Blood Alcohol Test?

Friday, March 8th, 2019

The Founding Fathers drafted the Constitution, specifically the first 10 Amendments, mindful that the government could and may at some point in our country’s future subvert our individual rights, such as the right to be free of unreasonable governmental searches and seizures. Specifically, the Fourth Amendment prohibits the government from “unreasonable searches and seizures.” Simply put, if a person has a reasonable expectation of privacy in a particular place, the government cannot search it unless, amongst other things, it has a warrant to do so or if it obtains voluntary consent to the search.

That was then. Mitchell v. Wisconsin is now.

The United States Supreme Court is currently deciding a case that will determine if police can withdraw blood from an unconscious suspected drunk driver without their express consent.

In May of 2013, Gerald Mitchell was arrested on suspicion of driving under the influence of alcohol. While en route to the police station, Mitchell became lethargic and the officers instead took him to a hospital. There, the officers attempted to read Mitchell his rights as well as a statutorily mandated form regarding Wisconsin’s implied consent law. Mitchell, however, was already too close to unconsciousness to understand, if not unconscious already. That didn’t stop the officers. They ordered hospital workers to withdraw blood from Mitchell without his express consent. The blood test revealed a blood alcohol content of 0.22 percent, almost double the legal limit.

Implied consent laws, which exist in every state, declare that every driver, through merely having a government-issued driver’s license and using state-owned roadways, has impliedly agreed to take a blood-alcohol test if arrested on suspicion of driving under the influence.

Mitchell was charged with a DUI (or OWI – operating while intoxicated – as it’s called in Wisconsin). He moved to suppress the results arguing that the officers did not have a warrant and that he did he did not give his express consent. Prosecutors argued that neither a warrant nor express consent were required because of the implied consent law. The trial court sided with the prosecutors and Mitchell was convicted.

Mitchell appealed and the court of appeals certified the case to the Supreme Court of Wisconsin on the issue of “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law…violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the certification and upheld Mitchell’s conviction. Earlier this year, however, the United States Supreme Court decided to take on the case.

It couldn’t come at better time either. State court stances on the issue have been all over the place.

Some states have struck down laws that allow prosecution of someone who refuses a blood alcohol test in violation of the implied consent law. Some states have held that warrantless, consentless searches are unconstitutional and, therefore, the evidence obtained by the search is inadmissible against the driver at a DUI trial. Others, like Wisconsin, have held that the Constitution and the Fourth Amendment don’t matter as long as implied consent laws allow law enforcement to search DUI suspects carte blanche.

Let’s take this step by step. The officers in Mitchell’s case do not need a warrant if Mitchell does not have a reasonable expectation of privacy in the place that law enforcement is searching. We’re not talking about Mitchell’s garage. We’re not talking about his car. We’re not even talking about his home. We’re talking about the thing that we as humans consider to be the most private; our body. I’ll even take it a step further and say that we’re talking about a search of the contents of someone’s blood. You damn well better believe that we have a reasonable expectation of privacy in our bodies and our blood.

Since Mitchell had a reasonable expectation of privacy, the Constitution requires that the officers either get a warrant or get Mitchell’s consent. They did not have a warrant nor did Mitchell give consent because he was, for all intents and purposes, unconscious. Yet, they searched and found what they were looking for.

Wisconsin’s Supreme Court, in allowing Mitchell’s blood and blood alcohol content to be used against him in a criminal case, has essentially said that unconscious drivers can give consent, and have already done so.

How? Because the state legislature has subjectively and in contradiction to the Constitution of the United States created a law that gives the government the right to search without a warrant or consent.

The Founding Fathers were right to be wary of the government, clearly. Let’s just hope that the United States Supreme Court decides Mitchell’s issue bearing in mind what the Founding Fathers had intended and what they wrote in the Constitution.

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North Dakota Bill Outlawing DUI Checkpoint Passes House

Thursday, February 21st, 2019

Just take a look at last week’s post. According to statistics obtained by Insurify, an auto insurance comparison website, North Dakota was ranked as the worst state when it came to drunk drivers. 5.73% of people who responded to a questionnaire from Insurify indicated that they had a history of DUI. 24.7% of people reported drinking excessively. What’s more, nearly half of all fatal traffic collisions in the state involved alcohol.

Now, to some, this can be interpreted to suggest that North Dakota might need additional DUI enforcement and preventative measures such as DUI checkpoints. However, to others, like the North Dakota House of Representatives, the numbers are an indication that DUI checkpoints, as currently deployed, are not working in that state and maybe, just maybe, state funds should be allocated elsewhere.

North Dakota House Bill 1442, which would prohibit the use of DUI checkpoints in the state, was passed by a whopping majority of 79-14. It’s now headed to the state Senate for consideration.

While the Highway Patrol is not taking a stance on the issue, Fargo Police Chief David Todd and Cass County Sheriff Jesse Jahner oppose the legislation arguing that DUI checkpoints are tools necessary for law enforcement to stop and prevent drunk driving.

The bill’s primary sponsor, Rep. Rick Becker, however, claims that the argument that DUI checkpoints are an effective tool in combating DUI’s is “cliched” and have been “proven inadequate.” There’s something to be said about Beckner’s argument.

Between January 2017 and December 2018, the Highway Patrol conducted 16 DUI checkpoints in North Dakota, which only resulted in 17 DUI arrests. Only 17. This is a drop in the bucket compared to the 1,135 DUI arrests made in 2017 and the 1,158 DUI arrests made in 2018 by the Highway Patrol.

The ACLU of North Dakota issued the following statement regarding House Bill 1445:

“The ACLU of North Dakota supports House Bill 1442. Our constitutional right under the Fourth Amendment to live free of ‘unreasonable searches and seizures’ is one of our most cherished – and most threatened. While traditional Fourth Amendment violations continue, new areas of concern crop us every day. We need to ensure that the Fourth Amendment, written over 200 years ago to protect our ‘persons, houses, papers, and effects’ from intrusive searches, evolves to protect today’s equivalents.”

The ACLU is alluding to the fact that the courts have in the past allowed law enforcement a freebie in stopping motorists (which under the law is a “detention”) without the normally-required probable cause and/or warrant when it comes to DUI checkpoints. The courts have continued to justify this exception to the constitution by claiming that the admitted invasion of privacy of the driver by law enforcement is outweighed by law enforcement’s interest is preventing drunk driving.

Matt Agorist, columnist for freedomoutpost.com, writing on this very topic said it best: “To those who would say, ‘if you are not doing anything wrong, you should have nothing to hide,” and support these checkpoints, you are the problem. Families do not draw the curtains in their homes at night because they are doing something wrong. One does not lock the bathroom door in public because they are doing something wrong. It is about maintaining, asserting, and protecting your rights – without being forced to lose your privacy.”

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Should Waze be Allowed to Post DUI Checkpoint Locations?

Monday, February 11th, 2019

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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Oregon State Crime Lab Backlog May Affect DUI Cases

Thursday, January 24th, 2019

The Oregon State Police crime lab is behind on its testing, way behind, and it’s affecting DUI cases in the state.

The chemical tests for motorists accused of driving under the influence has a backlog of about 14 months. While that is bad, it’s better than some departments within the lab such as property crimes, where they no longer process DNA for property crimes such as theft to allow more focus on other cases, such as sexual assault. This is problematic since the statute of limitations (the time period for which a prosecutor can file a criminal case) on a case might, and in many cases will run, without having the evidence tested.

Oregon’s Linn County District Attorney’s office handled more than 500 DUI cases in 2018. Alcohol related cases can use breathalyzers as evidence without the need for a crime lab. However, not all of the DUI cases that the DA’s office handles are alcohol related. About half of the DUI cases in Linn County involve other drugs where levels are determined by urine tests. The current backlog of 14 months is still within the standard statute of limitations of two years, so cases can still likely be filed. In its current state and with crime never ceasing, the crime lab is undoubtedly overworked, understaffed, and limited with what they can do. Therefore, the statute of limitations for some of those DUI’s may too come and go, which is unfair to both the prosecutors as well as the accused.

Although representatives of the District Attorney’s office were unaware of any cases directly being impacted by the turnaround time of the lab, Benton County District Attorney John Haroldson said, “The turnaround time for the lab is impacting our office because we’re having to wait for extended periods of time. But it’s critical for me to note that the [Oregon State police] crime lab, no matter how well they do their job, they have a finite capacity. and when that finite capacity is exceeded, the impact for us is the delay on having the lab work done.”

However, Haroldson also went on to say that, although a statute of limitation may not have run, suspects should not have to wait that long to be formally charged.

“Part of seeking justice is doing all we can to make sure that our systems are fair to everyone, including the accused. Long delays do not represent the best work that we can do if we were properly funded,” said Haroldson.

It was also noted that the testing delays can also lead to increased risks to the public as motorists who were suspected of driving under the influence will not have their licenses suspended until the charges have at least been filed. One county had at least four drivers who were arrested twice for DUI during 2018 and whose cases were yet to be settled as their lab results were still pending months later.

With Oregon’s legalization of recreational marijuana in 2015, the number of requests for toxicology tests have only continued to increase. As Oregon’s population also continues to rise, it can be anticipated that the growth in demand for the lab’s services will also continue to rise. Although science and technology have evolved to make some of the processes go much smoother and faster, toxicology result turnaround times still take much longer than our TV crime solvers make us believe. What’s more, costs are still too high to effectively rely on outsourcing as part of the solution.

Amanda Dalton, a lobbyist on behalf of the Oregon District Attorney Association, says that the association is hoping to change the backlog situation through current legislation.

“We believe delayed testing is a crisis as it relates to DUI prosecution and overall community safety and that [the Oregon State Police] is doing all they can with the resources they currently have,” said Dalton.

Although the Oregon District Attorneys Association realizes that the legislation currently proposed will not solve the problem, they maintain hope that it will, at a minimum, start the conversation that will eventually lead to the appropriate funding to fix the issues.

 

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Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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