The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches.  The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Starting with the Supreme Court’s decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law.  Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment.  The exclusionary rule exists to deter officers from breaking the law.

I have been reflecting on Memorial Day and paying tribute to the men and women who gave the ultimate sacrifice in defense of our liberty.

We are very fortunate to live in a place where an accused is presumed innocent, and has a right to notice, counsel, proof beyond a reasonable doubt, against compelled self incrimination and against unreasonable search and seizure. We also have constitutional rights to equal protection, due process, and freedom of speech and religion, and against government establishment of religion.

Each generation has a responsibility to fight to keep the rights and ideals enshrined in our Constitution alive. As lawyers, we have a special responsibility to give meaning to these rights that define us as a nation of laws and liberties, and we fight in court every day to ensure that the government promotes our rights, and does not encroach on them. We know from experience that many of our citizens take these rights for granted and don’t agree with them unless or until they face charges. As many of us know all too well, many of our prosecutors and judges give only lip service to our rights and achieving justice in many cases requires hard work by us, and is not always successful.

The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado.  Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D.Janine Arvizu, NCDD Regent Joe St. LouisPatricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.

The science portion was followed by three days of lectures and breakouts on trial techniques  taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte.   The TLC website says:

Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment.   Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test.  The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine.  In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test.  As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

If you have been following the news lately you have heard that Maryland has joined the states that require interlocks in all DUI cases, even for first offenders blowing under 0.15.  For example, see Md. lawmaker: Slain officer Noah Leotta ‘is still on the job’ in the Washington Post.  However a close examination of the record reveals over 50 changes to the original version of Noah’s law contained in the Conference Committee Report.

A key provision in contention would have required a first offender with a test result of 0.08 or higher but less than 0.15 to get an ignition interlock for 90 days.   The House had rejected that provision.  However, that provision was contained in the third reading of the Senate Bill 945.  (The House and Senate had both already stricken a provision requiring defendants charged with DUI or DWI but only convicted of reckless or negligent driving to get an ignition interlock).  In the end, the House and Senate Conference Committee compromised.  They increased the length of the suspension to 6 months, but reinstated a provision that allows alleged offenders to request a hearing to get a permit that allows driving for employment, alcohol education, education or medical purposes for the licensee or family members, without obtaining an ignition interlock in the car.  So while a 6 month interlock is an option, it is not a requirement in the new law.  The new law, which takes effect on October 1, 2016 (assuming the Governor signs it), also requires ignition interlock for defendants convicted of drunk driving (for 6 months, one year, or 18 months).  But in Maryland most of them are second offenders, since most first offenders found guilty end up with probation before judgment (PBJ) – not a conviction.

If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.

Every breath test in Maryland is subject to suppression.  Every administrative suspension based on a failed breath test should be thrown out.  The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test.  The question is – can the State put someone in jail for refusing to consent to a search of their body?  Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search?  And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test?  The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test.  If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law.  In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).  These cases will be argued in the Supreme Court on April 20, 2016.

The Maryland House of Delegates took the courageous step of passing Noah’s Law, HB 1342, with substantial amendments.  The amendments make the bill a much more rational and humane way of encouraging sober driving while not unnecessarily punishing social drinkers or putting them out of work.

The law deals with test failures and refusals before court and the effect of convictions after court.

Under current law a person who submits to a test and has a reading of 0.08 or more and less than 0.15 faces a 45-day suspension for a first offense and 90-day suspension for a second or subsequent offense.  On a first offense or a second or subsequent offense more than five years after the first the suspensions may be modified by an administrative law judge to allow restricted driving for purposes of work, school, alcohol education or treatment, or medical treatment for the licensee or family members.  Noah’s Law changes this to increase the suspension periods from 45 to 90 days and 90 to 180 days.  The proposed law also eliminates the work etc. permit provision and requires these offenders to get an ignition interlock for the period of suspension.  The House amendments restore the work etc. permit but leave the increased length of suspensions in place.

The anti-DUI lobby in Maryland has put together a massive effort to pass HB 1342/SB 942 called the Drunk Driving Reduction Act of 2016 – Noah’s Law, in memory of Montgomery County police officer Noah Leotta, who was killed by a suspected drunk driver last December.  The bill proposes a number of changes to Maryland law.

  • MVA penalties for a test result of 0.08 or more but less than 0.15 would be increased from a suspension of 45 days on a first offense and 90 days on a second or subsequent offense would be increased to 90 and 180 days respectively. Critically, instead of first offenders being able to drive with a permit restricted for work, education, alcohol education, or medical purposes, all of these drivers would be required to install an ignition interlock for this period of time.
  • MVA penalties for a test result of 0.15 or more would be increased from a suspension of 90 days on a first offense and 180 days on a second or subsequent offense would be increased to 180 and 270 days respectively.  Instead of ignition interlock being optional for these offenders, it would now be mandatory.

The Supreme Court today granted certiorari in three cases Birchfield v. North Dakota (14-1468); Bernard v. Minnesota (14-1470); and Beylund v. North Dakota (14-1506).  These cases raise the question left open after the Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013): can a state make the refusal to submit to a breath or blood test for alcohol a crime, punishable by imprisonment?

Police are presumptively required to obtain a warrant before obtaining a blood test for alcohol.  Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The Supreme Court will now decide whether a warrant is required for a breath test, whether the refusal to consent to a breath or blood test can be made a crime, and whether advice that refusal is a crime carrying a possible jail sentence renders any consent to submit to a breath or blood test coerced and involuntary.  However, relevant authority and review of Supreme Court cases compels an answer of yes – a warrant is required for a breath test, no – a refusal to consent to a breath test cannot be made illegal without violating the Fourth Amendment, and yes, advising a suspect that refusal is a crime punishable by imprisonment renders any consent given coerced and involuntary.

Warrantless searches are presumptively unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).  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.  In United States v. Reid, 929 F.2d 990 (4th Cir. 1991), the Fourth Circuit held that a warrant was not required to conduct a breath test during a DUI investigation because a breath test was a permissible search incident to an arrest and was conducted under exigent circumstances.  However, Reid was overruled by McNeely, to the extent that it relied on exigent circumstances. United States v. Brooks, No. CRIM. PWG-14-0053, 2014 WL 2042028, at *5 (D. Md. May 16, 2014).  The search incident rationale of Reid is also no longer valid due to the Supreme Court decisions in Arizona v. Gant, 129 S.Ct. 1710 (2009) and Riley v. California, 134 S.Ct. 2473 (2014).  The final possible applicable exception to the warrant requirement is consent.  However, where, the “consent” is obtained by a threat of incarceration, the consent is coerced and is not voluntary.  State v. Won, 2015 WL 7574360, — P.3d — (Haw. 2015).