Articles Posted in Federal DUIs

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On last Thursday, June 5, 2014, Leonard Stamm went on Al Jazeera America to discuss last year’s Supreme Court decision in Missouri v. McNeely. He was interviewed by reporter John Henry Smith.

JHS: Drivers stopped on suspicion of driving under the influence in Tennessee are sometimes forced to submit to a blood test. The State allows officers to demand a driver give blood if they refused to take a breathalyzer test. Tennessee is not the only place where this is being done. Wyoming and some parts of Atlanta have similar laws on the books. And Georgia is considering allowing it statewide. It’s a controversial practice that critics say is a violation of a person’s right to privacy. Joining us to discuss the legal implications is Leonard Stamm, a criminal defense attorney, and executive committee member with the National College for DUI Defense. He’s in Washington, D.C. this morning. Mr. Stamm, how can law enforcement pull people over suspected of DUI and demand a blood sample. Is that not a violation of a person’s Fourth Amendment right against unreasonable searches and seizures?

LRS: Well last year the Supreme Court decided the case of Missouri versus McNeely, and the Supreme Court held that before police can take blood from somebody that unless there’s some kind of emergency that impedes their ability to get a warrant they have to call a judge and get a warrant before they can stick a needle into and pierce somebody’s skin to get a blood sample.

JHS: Well in Tennessee, if a driver refuses a breathalyzer or a blood test, police officers can get a judge to issue the warrant and force the person to comply. Can a suspect be physically restrained and forced to give blood?

LRS: Well yes they can but it has to be done in a medically appropriate manner. So I think that if the police officer is holding somebody down on the side of the road and poking them with a needle, or has been documented in other news stories, on the floor of the jail or put in a chair and have a hood put over their head, I don’t think courts will approve those kinds of procedures. But if it’s done in a medically appropriate manner – what the Constitution requires, what the Fourth Amendment requires is that before police do it they just can’t poke somebody without getting a judge to approve it first so if a judge approves it, then the second question is, the first question is: is there probable cause for the search. If the judge approves it, there’s going to be a requirement that they perform the test in a medically appropriate manner.
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Just last term the United StatesSupreme Court held in McNeely v. Missouri, that a warrant is presumptively required before obtaining a blood sample from a drunk driving supsect. However this week, in Navarette v. California, the United States Supreme Court, in a 5-4 decision, held that a police officer does not have to confirm an anonymous tip of reckless driving before stopping a vehicle.

A woman who actually identified herself on a 911 call, but was not identified in court, said she had been run off the road by a truck, and provided a description and tag number. An officer located the truck and followed it without observing any other traffic violations. A five member majority found that even though no other violations were observed by the police officer, the officer had articulable reasonable suspicion of drunk driving under the totality of the circumstances. The Court suggested that if the information provided by the caller had been less specific or the offense alleged less serious, that the information would have been insufficient to justify the stop.
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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.
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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 http://www.nytimes.com/2009/02/05/us/05forensics.html (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.

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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.
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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.
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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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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.

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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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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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