McNeely Continued - Warrantless Breath Tests Violate the Fourth Amendment

March 25, 2014

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.

Continue reading "McNeely Continued - Warrantless Breath Tests Violate the Fourth Amendment" »

Cops Gearing Up For St. Paddy's Day - Beware!!!

March 11, 2014

Monday, March 17 is St. Patrick's Day and the police will be ready so beware. A Prince George's County Police press release stated:

PGPD to Conduct St. Patrick's Day Sobriety Checkpoint.

Last year, nearly 550 drivers were arrested for DUI across Maryland on the St. Patrick's Day weekend. We're committed every day to protecting our citizens against those who choose to drink and drive but especially on what has proven to be a dangerous holiday on the roads.

The Special Operations Division will conduct a sobriety checkpoint next Monday, March 17, 2014, from 6:00 pm to 12:00 am. The Maryland State Police will join our officers in stopping drivers in the 7900 block of Annapolis Road in Lanham.

The PGPD wants to ensure revelers rely on more than luck to make it home safely on St. Patrick's Day. If you're planning an evening of celebration, please plan ahead. Choose a designated driver, commit to calling a cab or try SoberRide. The program will run on St. Patrick's Day from 4:00 pm - 4:00 am. It offers free cab rides. The number is 1-800-200-TAXI.

For more information, contact the Prince George's County Police Department's Media Relations Division at (301) 772-4710.

Continue reading "Cops Gearing Up For St. Paddy's Day - Beware!!!" »

To Plead Or Not To Plead (Guilty)? - That Is The Question

February 8, 2014

In Maryland courts, hundreds of DUI (driving under the influence) and DWI (driving while impaired) cases are heard every day. The vast majority of cases are resolved by the defendant pleading guilty on the terms offered by the prosecutor whether the defendant has a lawyer or not. However, in state court, judges are prohibited from punishing a defendant who elects to plead not guilty. It is unusual in Maryland for a prosecutor to offer a defendant a result that is better than what would happen anyway if the case went to trial and the defendant lost. So why not roll the dice? The defendant has nothing to lose.

An example of this occurred yesterday in a District Court trial of mine. My client had a number of prior offenses, and although the most recent was over 20 years ago, he did have some exposure to jail. With some judges he was facing a lot of jail time. His breath test was very high. The prosecutor offered him a plea to driving under the influence of alcohol and she would recommend that he be sent to jail. This was the same thing he would get after a trial if we lost, which I fully expected! However, trials sometimes yield surprises.

The officer testified that he received a call for an accident and proceeded to the location. When he arrived he spotted a Dodge truck that looked like the description he received and pulled his car in front of it so it could not leave the parking lot it was in. The officer could not remember whether the truck was in motion or stopped. I objected because the State had never informed us what the original description was. Under Maryland discovery rules, the State is required to provide all information relevant to any searches and seizures. I was moving to suppress all the evidence seized as the result of an illegal stop. The judge took a break to consider the objection.

When the judge came back, he granted my motion, but not for the reason I argued. He said that he was granting the motion beoause the officer did not indicate who was at fault in the accident and that he had not testified that he had been told that the defendant was uncooperative and had failed to exchange information. So he had no evidence that the officer was in possession of any information indicating the defendant had committed any crime during the accident or after it, and granted the motion to suppress, followed by a motion for a judgment of acquittal. Not guilty.

Continue reading "To Plead Or Not To Plead (Guilty)? - That Is The Question" »

Oral argument in Navarette v. California - or - can police stop a car for a crime that can't be prosecuted?

January 22, 2014

The U.S. Supreme Court held oral argument yesterday in the case of Navarette v. California. This case presents the important issue of when police can stop a car based on an anonymous tip without corroborating the details provided by the caller. An anonymous caller informed police that Navarette's vehicle was driving recklessly and almost ran them off the road. The caller provided a description of the vehicle. Police spotted the vehicle 19 miles down the road and followed for another 5 miles without seeing any bad driving. Ultimately, the vehicle was stopped and police found marijuana. Under the Fourth Amendment exclusionary rule, if the stop was illegal, the marijuana must be suppressed. That means the trial court couldn't consider it and Navarette would get off.

During the argument the justices peppered the lawyers with hypotheticals designed to flesh about where and what lines the Court should draw. What if it was a report of a bomb? An atom bomb? A gun? The Court had held in a gun case, Florida v. J.L., an anonymous report of a juvenile in a plaid shirt carrying a gun was insufficient.

The general rule is that police may stop a person if they have an articulable reasonable suspicion to believe the person was, is, or is about to commit a crime. But a very important factor may have been overlooked by the justices and the lawyer arguing the case.

MR. KLEVEN: Right. If they can't see any erratic driving still going on, then where is it going to go? They're not going to prosecute for the recklessdriving that allegedly took place 19 miles away and they have followed that car for an additional -­ JUSTICE SCALIA: They could if the guy admitted it, you know. MR. KLEVEN: Other than that, Your Honor -­ JUSTICE SCALIA: They could play Mutt and Jeff with him and he -- oh, yeah, I did, yes.

The fallacy here is that if the caller is anonymous, even if the defendant admits the conduct, he cannot be prosecuted for it. The corpus delicti rule in criminal law requires that there must be corroboration of the corpus delicti to prosecute a defendant. "Corpus delicti" is a Latin phrase that very loosely translated means the body of the crime. A person cannot be convicted of a crime based solely on a statement admitting guilt. There must be some independent evidence that in fact a crime was committed. In the case of an anonymous report of a past crime such as a minor traffic violation, without any witness to come forward and testify under oath that he observed the defendant commit a crime, the defendant can't be prosecuted for it.

So why allow the stop?

Continue reading "Oral argument in Navarette v. California - or - can police stop a car for a crime that can't be prosecuted?" »

Maryland Court of Appeals Hears Oral Argument in MVA v. Deering

January 11, 2014

This past Thursday the Maryland Court of Appeals held oral argument in Motor Vehicle Administration v. Deering. John K. Phoebus of Salisbury, Maryland argued on behalf of Ms. Deering that Deering's license should not have been suspended when the police officer would not let her call her lawyer before deciding whether to take or refuse a breath test. She elected to submit to the breath test and failed. The rule of Sites v. State, decided in 1984, is that when a person arrested for DUI asks to call a lawyer, they must be allowed an opportunity to do so that does not interfere with the State's ability to obtain a breath test. The rule was clearly violated in Deering's case, but the MVA argued that the violation cannot be raised as a defense at the administrative hearing, only in court.

An amicus brief filed by Leonard R. Stamm on behalf of the National College of DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys' Association (MCDAA) came up during oral argument. Chief Judge Mary Ellen Barbera noted that one of the claims in the brief was that if the Court ruled in the MVA's favor it would be changing the status quo. The brief stated that the Sites defense has been allowed at MVA hearings for 30 years. The brief also stated that it was only relatively recently that a growing number of judges have started to disallow the defense, as a result of the Court's decision in Najafi v. Motor Vehicle Administration. Najafi had stated in dicta (meaning a statement by the Court that is not necessary to resolve the case and therefore not binding on lower tribunals) that the denial of counsel defense could not be raised at the MVA license suspension hearing. However, Chief Judge Barbera noted that there was no data cited to support this statement and wanted to know from counsel whether they agreed with it. Counsel for the MVA, Leight Collins, did not dispute the statement and acknowledged that there is no data base from which data could be culled to support or opposed the statement. Rather, there are paper records of the hearings. So there is no data that could have been provided.

The amicus brief was also quoted in the Daily Record.

"The manner in which the officer reads the form can...detract from its ability to be understood," attorney Leonard R. Stamm wrote in the friend-of-the-court brief. "Additionally, most suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized." Stamm is with Goldstein & Stamm P.A. in Greenbelt.

A number of judges asked whether officers were required to advise suspects of their right to call a lawyer. The Court had rejected a similar claim years earlier in McAvoy v. State.

Continue reading "Maryland Court of Appeals Hears Oral Argument in MVA v. Deering" »

Handling an out of state conviction for DUI or DWI for a Maryland licensee

December 17, 2013

When a person gets convicted of a drunk driving (DUI or DWI) charge in a state other than Maryland, that state usually sends a notice of the conviction to the Maryland Motor Vehicle Administration (MVA). The MVA is then authorized to take action against the person's driver's license under a number of provisions.

Artilce IV of the Driver License Compact, allows Maryland to take action against the person's driver's license as follows:

Effect of Conviction

(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this Compact, as it would if such conduct had occurred in the home state, in the case of convictions for:
(1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle;
(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;
(3) Any felony in the commission of which a motor vehicle is used;
(4) Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.
(b) As to any other convictions, reported pursuant to Article III, the licensing authority in the home state shall record the conviction on the individual's driving record, but may not assess points for the conviction.

Md. Code Ann., Transp. § 16-703.

If a person receives 12 points within a two year period, and DUI carries 12 points, the MVA may revoke the person's driver's license. In addition, the driver may have his or her license revoked or suspended under Md. Code Ann., Transp. § 16-206(a)(1)(v) which provides that a driver may be revoked or suspended if the person "[h]as committed an offense in another state that, if committed in this State, would be grounds for suspension or revocation."

The Administrative Law Judges (ALJs) who decide these cases have an enormous amount of discretion in deciding what sanction to impose. The ALJ can impose a sanction ranging from revocation to a reprimand (warning) and everything in between. This can include a restricted license for a month or two allowing only driving related to work, education, alcohol education, and medical purposes for the driver and family members. The ALJ may also impose a restriction requiring the driver to enroll in and successfully complete the Maryland Ignition Interlock System Program. Typically the driver presents mitigation evidence in the form of certificates of completion from alcohol education and treatment classes, and letters from an employer verifying a need for work related driving.

Continue reading "Handling an out of state conviction for DUI or DWI for a Maryland licensee" »

Amicus brief filed in MVA v. Deering

December 16, 2013

The National College for DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys' Association (MCDAA) filed an amicus brief late last month authored by attorney Leonard R. Stamm in Motor Vehicle Administration (MVA) v. Deering.

Deering was arrested for DUI and requested to take a breath test. Before submitting she asked to call her lawyer. However, the police department had a policy of not allowing arrestees to call their lawyers before submitting to a breath test. The policy directly contradicts the Court of Appeals' holding in Sites v. State that a person accused of drunk driving has a right to contact a lawyer so long as the phone call does not interfere with the State's ability to conduct the test. Deering submitted to the test and blew a 0.16 At her license suspension hearing for a test of 0.15 or greater her attorney asked the Administrative Law Judge (ALJ) to take "no action" due to the failure to allow her to call her lawyer. The ALJ denied the motion, but was reversed by the circuit court on appeal. The MVA asked the Court of Appeals to hear the case and they agreed to.

The issue in the case is whether denial of counsel can be raised as a defense at an administrative license suspension hearing. The amicus brief raises 6 points.

1. The considerations governing the choice of submitting to or refusing an alcohol test are much more complex now than when Sites was decided in 1984, the consequences of a wrong choice more severe, and the need for counsel greater.
2. The due process right to contact counsel was recognized by this court in Sites primarily due to a potential loss of the ability to earn a livelihood, and the MVA hearing is the only forum where loss of employment or inability to obtain employment can meaningfully be addressed
3. Addressing due process concerns, the legislature amended § 16-205.1(f) to include a requirement that the officer "fully advise" the driver of the administrative sanctions for failing and for refusing the test

Continue reading "Amicus brief filed in MVA v. Deering" »

Forensic chemist gets 3-5 years in prison for falsifying test results

November 28, 2013

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 (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.

Continue reading "Forensic chemist gets 3-5 years in prison for falsifying test results" »

U.S. District Court in Maryland Grants McNeely Suppression Motion

October 15, 2013

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.

Continue reading "U.S. District Court in Maryland Grants McNeely Suppression Motion" »

New Laws Take Effect Today

October 1, 2013

Electronic signs all over Maryland are telling drivers about the new laws that kicked in today. What exactly is going on? Two offenses that were previously denominated as secondary actions have been changed to primary actions.

As the 90 day legislative report states:

Senate Bill 339/House Bill 753 (both passed) authorize primary enforcement of the prohibitions against the use of (1) a wireless communication device by a minor operating a motor vehicle; (2) a handheld telephone by an adult driver while operating a motor vehicle with a provisional license or learner's permit; (3) a handheld telephone by an operator of a school vehicle that is carrying passengers and in motion; and (4) the fully licensed driver's hands to use a handheld telephone, while the vehicle is in motion, except as specified. The bills repeal the provisions of law that limited enforcement to a secondary action when a driver is detained for another violation.

What this means is that previously a police officer could not stop a vehicle if he or she observed the listed violations. A person could only be charged under one of these provisions if the person was first stopped for a different violation. This law now allows officers to stop a vehicle based on observation of one of these violations alone.

Continue reading "New Laws Take Effect Today" »

Be Careful Before Paying Traffic Tickets in Maryland!

May 27, 2013

Last year, the Maryland legislature changed the law that required the court to send trial notices to all persons receiving traffic tickets. Now a person receiving a payable (minor) traffic violation and no jailable (non-payable - must appear) companion tickets must either pay the ticket or request a trial within 30 days. If this is not done the driver's license is suspended until they pay it.

The ticket says:

IF ANY OF YOUR VIOLATIONS ARE MARKED "MUST APPEAR": You will automatically be mailed a notice of your trial date by the Court. Failure to appear will result in a warrant for your arrest.

Then further down on the form it says:

IF ANY OF YOUR VIOLATIONS ARE MARKED "PAYABLE FINE": You must comply with one of the following within 30 days after receipt of the citation. Provide any change of address if applicable. OPTION #1 - PAYMENT: Pay the full amount of the fine for each violation within 30 days at any District Court of Maryland, by mail, or by credit card (fees apply) using the IVR system or the Court Website. If paying by mail, make check or money order payable to District Court of MD and include citation number(s) on front of check or money order. On the option form below, check "Pay Fine Amount" for each violation being paid and mail the form with your payment to the address shown for the District Court of MD. An additional $10 service fee will be imposed for each dishonored check. OPTION #2 - REQUEST A WAIVER HEARING REGARDING SENTENCING AND DISPOSITION INSTEAD OF A TRIAL: On the option form below, check "Request Waiver Hearing" for each violation where hearing is requested, sign and date at bottom and mail the form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time. OPTION #3 - REQUEST TRIAL: On the option form below, check "Request Trial" for each violation where Trial is requested, sign, date at bottom and mail the form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time.

The problem occurs when the person (or their parent!) pays the citation without knowing the consequences. First of all, if any of the tickets is a must appear, then it should absolutely not be paid because a trial date will be scheduled for all the tickets together. The notice on the citation is not clear about this! Even if none of the tickets is a must appear, no ticket should be paid before the person knows everything that will happen at the MVA. And in most cases, people receiving tickets do better by going to court anyway.

Continue reading "Be Careful Before Paying Traffic Tickets in Maryland!" »

Stamm Given Fred Bennett Zealous Advocacy Award

May 3, 2013

On May 1, 2013, Leonard Stamm was given the first annual Fred Bennett Zealous Advocacy Award by the Maryland Criminal Defense Attorney's Association (MCDAA). This award will be given annually to the member of MCDAA who best exemplifies the qualities that Fred Warren Bennett possessed which made him a courageous litigator and tireless advocate for criminally accused individuals.

Fred Warren Bennett was the former Federal Defender for Maryland (1980-1992), the Prince George=s County Public Defender (1978-1980), and a full-time Law Professor at Catholic University (1992-1997) before entering private practice in 1998. Among his many high profile clients were accused spies Ronald Pelton and John Walker and several men he represented after they had received death sentences. Fred was an expert on evidence, federal trial practice, and capital defense litigation. He won numerous awards, authored over 30 law related articles and lectured at many Maryland and national criminal defense seminars and was a mentor to a host of prominent Maryland criminal defense lawyers. Fred was incredibly forthright, a character, an incredibly zealous advocate, and a true legend in the Maryland criminal defense bar. Fred Bennett unexpectedly passed away on July 1, 2007.

Continue reading "Stamm Given Fred Bennett Zealous Advocacy Award" »

Supreme Court rules search warrant presumptively required before obtaining non-consensual blood draw - Missouri v. McNeely win!

April 17, 2013

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.

Continue reading "Supreme Court rules search warrant presumptively required before obtaining non-consensual blood draw - Missouri v. McNeely win!" »

National College for DUI Defense holds Winter Session in Scottsdale, Arizona

January 21, 2013

This past Thursday and Friday the National College for DUI Defense held its annual winter session in Scottsdale, Arizona. On Thursday, the seminar featured presentations by Robert Hirshhorn on Voir Dire Gems in DWI Cases, Leonard R. Stamm on The Top 20 Guidelines for Bench Trials, Mimi Coffey on Cross Examination (SFSTs) of the Arresting Officer, Virginia Landry on Cross Examination of the Arresting Officer (nonSFSTs), Josh Lee on Blood Testing - G.C. Theory and Issue Spotting, Phil Price on Breath Testing the Twelve Step Approach, Jess Paul on Retrograde Extrapolation, and Ron Moore on Drug Toxicology Strategies & Issues. On Friday, attendees heard from Doug Murphy with a voir dire demonstration, Ava George Stewart with a demonstration of Cross-Examination of the Arresting Officer (SFSTs), Bruce Edge with a demonstration of Cross-Examination of the Arresting Officer (nonSFSTs), Tim Huey with a demonstration of Cross-Examination of the Toxicologist on Retrograde Extrapolation, Michael Hawkins with a demonstration of Cross-Examination of the Breath Test Technician, and Jim Nesci and Joe St. Louis with a demonstration of Cross-Examination of the Blood Test Technician.

Continue reading "National College for DUI Defense holds Winter Session in Scottsdale, Arizona" »

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

January 9, 2013

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.

Continue reading "Missouri v. McNeely argued today in the U.S. Supreme Court" »