Supreme Court Says Warrantless Blood Test Illegal, but not Warrantless Breath Tests

Monday, June 27th, 2016

In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23rd, that decision was announced.

In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.

In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.

The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.

Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.

The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.

Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

So what does this mean for California?

Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.

This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.

Chisel, chip, and off falls our 4th Amendment right against unreasonable searches and seizures.

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Kansas Supreme Court Rules Chemical Test Refusal Not Criminal

Monday, February 29th, 2016

This past Friday the Kansas Supreme Court ruled that it is unconstitutional to criminalize a chemical test refusal following a DUI arrest in that state.

Prior to the ruling, refusing a chemical test could land a person a misdemeanor or a felony charge depending on how many times they had refused in the past.

The Kansas Supreme Court ruling comes on the heels of the United States Supreme Court’s announcement that they’ll decide the same issue for a Minnesota law which also made it a crime to refuse a chemical test after a DUI arrest. Let’s hope that the United States Supreme Court takes a page from the Kansas Supreme Court’s ruling when the time comes.

The Kansas Supreme Court’s 6-1 decision found that chemical tests are essentially searches and, as such, it was unconstitutional to punish someone for exercising their constitutional right to refuse that search without a warrant.

“Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” the court held.

A common argument in favor of implied consent laws articulated in numerous previous court decisions was that a state’s compelling interest in combating drunk driving outweighed the “relatively minor” infringement on our 4th amendment right to be free from unreasonable searches and seizures. The Kansas Supreme Court, however, held exactly the opposite.

I agree. If the 4th Amendment doesn’t protect searches of our bodies, what does it protect?

Not surprisingly, Mothers Against Drunk Driving disagrees. “Obviously MADD’s position is that driving is a privilege and not a right,” said Christopher Mann, former police officer and member of the national board of directors for MADD. “We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year.”

I too agree that we need to keep our roads safe from drunk drivers, but not at the expense of our constitutional rights.

California too has an implied consent law requiring that drivers who have been lawfully arrested on suspicion of driving under the influence submit to a chemical test. Although California does not make it a separate criminal offense to refuse a chemical test like Kansas or Minnesota, it does allow prosecutors to allege a “refusal enhancement” to the criminal DUI charge.

If a person is found to have refused a chemical test in California, they face a one-year license suspension through the DMV, additional jail time, a longer DUI program, a MADD Victim Impact Panel lecture, and/or a hospital and morgue program.

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Can you Turn Away from a Sobriety Checkpoint?

Monday, February 2nd, 2015

Sobriety checkpoints have been held to be an exception to the rule that law enforcement officers need probable cause to stop and, even if brief, detain a motorist in order for the detention to be constitutional.

Normally, police obtain that probable cause through witnessing a traffic violation, witnessing driving which would indicate drunk driving, or receiving an anonymous tip that a person may be driving drunk. Only then can law enforcement stop and detain a person.

Although officers at sobriety checkpoints do not have the probable cause usually required to stop a motorist, both the United States Supreme Court and the California Supreme Court have held that checkpoints are constitutional.

In 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.

Three years before the decision in Michigan Department of State Police v. Sitz, the California Supreme Court in 1987 decided the case of Ingersoll v. Palmer and set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

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.

Without this last consideration, motorists would not know that there was an upcoming checkpoint to turn away from. However, because checkpoints are highly visible, motorists have the ability to turn away before reaching the checkpoint.

But is it legal?
 

There are no laws that require you to drive through a checkpoint. Therefore it is perfectly legal to turn away from a checkpoint. But if you do turn away from a checkpoint, be sure that you do not break any traffic laws in the process like, say, an illegal U-turn.

Remember that an officer needs probable cause to stop and detain a motorist. By committing a traffic violation in their presence, they’ll have the probable cause to stop a motorist, not for suspicion of driving under the influence, but for the violation itself. However, once the officer has the motorist pulled over for whatever violation, you can bet that the officer  will “observe the objective symptoms of intoxication” whether they’re present or not.

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$100 for Reporting a Drunk Driver

Monday, December 22nd, 2014

It goes without saying that there are more drunk drivers on the road during the holiday season. Some counties like those in Southern California are increasing patrols and DUI checkpoints. Palm Beach County, however, is offering a $100 reward for reporting a drunk driver as part of its holiday DUI crackdown.

“It gives law enforcement additional eyes on the road,” said the spokeswoman for the Safety Council of the Palm Beaches, Donna Bryan. “Everyone should have an interest in getting impaired drivers off the roads because it could be someone who hits your loved one.”

Palm Beach’s Mobile Eyes program has been operating since 2001 and has reportedly led to hundreds of DUI arrests. But recently, the program was promoted as a way to earn a little extra holiday cash this season.

To most this seems like a win-win situation. Drunk drivers are taken off the road and the person responsible for the arrest earns themselves $100 for the holidays.

So what’s the problem with rewards for reporting drunk drivers?

I’m sure Palm Beach County officials report exactly how many actual drunk drivers are arrested as a result of the program. But I highly doubt they report how many innocent people were stopped and investigated for a possible DUI as a result of the program.

Although well-intentioned, the program encourages people to call 911 on drivers who may or may not be driving drunk simply because there is the possibility of receiving $100. And, what’s more, these people have absolutely no personal knowledge that the driver is actually drunk.

Unfortunately, people are not reporting drunk driving. They’re reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving excursion is flawless. This necessarily means that everyone on the road is a target of Mobile Eyes and anyone can be arrested on suspicion of DUI simply because someone else could make $100 for reporting a mistake.

Ok, so someone calls 911 to report a possible drunk driver. Does the tip give law enforcement the right to stop a driver when the officers, themselves, saw nothing to indicate that the driver is driving drunk?

According to the United States Supreme Court, the answer is yes.

In the case of Navarette v. California, the United States Supreme Court held that an anonymous tip gives law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.

In his dissent, Justice Scalia voiced the same concerns I expressed above:

“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

After the Navarette decision, not only is it acceptable to assist law enforcement in violating the Constitution, now in Palm Beach County, we’re actually rewarding people for doing so.

 

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Turning Away from a California DUI Checkpoint

Monday, July 7th, 2014

With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.

The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.

The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are akin to agricultural checkpoints and airport screenings.  The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:

1.) The location of the checkpoint should be made at the supervisory level.

2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.

3.) The checkpoint must be safe with proper lighting and signs.

4.) The checkpoint must be visible to oncoming motorists.

5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.

6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.

7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.

8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint.  In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.

In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. Most checkpoints have officers waiting in idle patrol cars ready to chase after motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.

But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.

Merely avoiding a checkpoint does not give them that probable cause.

Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.

In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”

So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.

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