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On April 17, 2013, the United States Supreme Court issued its long-awaited decision in the case of Missouri vs. McNeely.  

The DUI case involved the right of police officers to forcefully take a blood sample from a driver without his consent or a search warrant.  The Court ruled that absent any exigent circumstances, such a taking of blood constituted a violation of the 4th Amendment's right to be free from unreasonable searches of the person.  Natural dissipation of alcohol from the system (present in every case) did not constitute such an exigency.  

I am flattered and greatly honored that in his written opinion Chief Justice Roberts cited my book, Drunk Driving Defense (7th edition), as recognized legal authority in the field.
 

DUI BLOG

The North Carolina Court of Appeals Tuesday upheld a Superior Court ruling throwing out three DWI convictions of a Fayetteville, North Carolina woman. The woman says that guilty pleas were entered on her behalf in 2006, but she never agreed to plead guilty and she says that she was not in court when she was convicted of the charges without her consent.

Last January, a Cumberland County judge overturned three prior convictions on a Fayetteville, North Carolina woman’s record that had been entered in 2006. The woman reportedly was charged with driving while impaired on three separate occasions in 2004 and 2006. Court records reportedly indicated that convictions were entered on all three charges in November 2006. When the woman was arrested in 2009 on suspicion of DWI, she was facing a potential felony DWI offense.

The Superior Court judge reportedly found serious flaws in the court records that raised questions about veracity of the court records. The judge considered the evidence presented, the legal arguments and the contents of the court records and overturned the prior convictions.

Prosecutors appealed that decision, arguing that the judge did not have jurisdiction to overturn the prior convictions. The Court of Appeals rejected that argument and upheld the lower court ruling. Prosecutors are considering an appeal to the state Supreme Court. If appealed, the North Carolina high court has discretion to accept or deny review of the appellate ruling.

This blog has recently discussed felony DWI charges under North Carolina law. Lawmakers are considering a proposal to make a third conviction for DWI within a 10 year time period a felony offense under the habitual DWI statute. Currently, a fourth conviction for DWI within 10 years can bring serious prison time as a habitual DWI offense. The Fayetteville woman challenged the prior convictions after being arrested in 2009 for an alleged DWI offense.

Source: Fayetteville Observer, “Appeals court says Cumberland County judge can overturn DWI convictions,” Paul Woolverton, April 3, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

Four days ago I posted about a case, Missouri v. McNeely, that was to be argued to the United States Supreme Court.  See The Slow Death of the 4th Amendment in DUI Cases.  The case involved the forceful use of hypodermic needles on drunk driving suspects.  Following are comments from the Washington Post on the arguments yesterday and the justice's questions which may provide a window into this important issue:

Supreme Court Seems Unlikely to Let Police Order Blood Tests for  Drunk Driving Suspects

Washington, DC – Jan. 9 — The Supreme Court on Wednesday seemed unlikely to allow police to routinely force suspected drunk drivers to give a blood sample without the officers at least trying to obtain a warrant from a judge.

There seemed to be little, if any, support for the proposition that the usual constitutional protections that require a warrant for searches do not apply in drunk-driving arrests. Missouri, backed by the Obama administration, argued that a suspect’s dissipating blood-alcohol content meant that, in effect, evidence was being lost and thus drawing blood should not require consent or a judge’s order.

That argument drew fire almost immediately.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked. The justice, interestingly, is a diabetic who has given herself daily shots of insulin since childhood.

Justice Antonin Scalia immediately signaled that he considers a blood test different from other procedures the government may require.

“Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved . . . in his arm?” Scalia asked John N. Koester Jr., the Missouri prosecutor presenting the case for his state. Koester replied that a breathalyzer requires the suspect’s participation.

For most of the hour-long argument, the justices seemed to be debating among themselves what emergency circumstances — an inability to contact a magistrate late at night, for instance — might allow taking blood from an uncooperative suspect…

Courts nationwide are divided about whether a 1966 Supreme Court ruling created an emergency exception to the warrant requirement for taking blood or whether ”special facts” must be present to make a warrant unnecessary.

Koester and Assistant Solicitor General Nicole A. Saharsky argued that the rapid dissipation of alcohol was enough to relieve law enforcement from the warrant requirement.

“The police are facing a destruction of critical blood-alcohol evidence,” Saharsky told the court. “Every minute counts, and it’s reasonable for the officers to proceed.”

But Justice Ruth Bader Ginsburg said that it is relatively easy and quick for police to get a warrant — a phone call is often enough — and that police could attempt to secure one in the time it takes to drive a suspect to a hospital for the procedure. If 30 minutes passes without an answer, perhaps the officer could proceed, she suggested.

Steven R. Shapiro, legal director of the American Civil Liberties Union, represented McNeely and told the court that Missouri, the states supporting it and the U.S. government are asking for too much.

“The issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent,” Shapiro said.

He has noted that states may revoke a driver’s license for a suspect who refuses to take a test, so there is an incentive to agree. Shapiro said half of the states — Maryland and Virginia as well as the District of Columbia are not among them — prohibit blood draws without warrants…

For a clearer picture of what we're talking about, see my posts Forced Blood Draws by Cops in Back Seat, Suspect Resisting Forced Blood Draw is Tasered, Dies and Catheter Forced Up Penis After DUI Arrest.
 

DUI BLOG

Connor Buchanan, one of several young men accused of involved in a September 2012 anal alcohol ingestion incident at the University of Tennessee, visited court this week to request from a judge that he not loose his drivers license. Buchanan argued that he needs a license to get to school and work, and that he would prefer to enter an alcohol education program instead of loosing his driving privileges.

Though Buchanan asked the judge to sentence him to an alcohol education course instead of loosing his drivers license, he left court with a fine of .50. Furthermore, if he does not have any further legal problems in the next 30 days, the charges will be dropped.

It is only with more significant institutional commitments to alcohol education that we will promote more responsible drinking in the United States. Readers, what do you think of this Tennessee judge’s decision for Mr. Buchanan?

Read the entire article here.

Choose Responsibility Blog

It’s no secret there’s a fair bit wrong with our criminal
justice system.
Manitoba stories

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  

 

DUI BLOG

A North Carolina man who was convicted of driving while impaired sought review in the North Carolina Court of Appeals, arguing that his encounter with police on the night of his arrest unconstitutionally violated his rights. The appellate court recently denied the appeal.

This blog has frequently reported stories of routine traffic stops that are later expended into alleged DWI investigations. Generally, law enforcement needs to have a legal basis to conduct a traffic stop and when the basis of the stop is resolved or dispelled, the legal basis evaporates, unless additional suspicion arises before the original matter is resolved. Cops cannot reasonably detain someone indefinitely without a reason.

That was the issue in the recent appeal-that the arresting officer remained after the original alleged legal basis for the encounter had been resolved. The incident did not involve the usual traffic stop. A state trooper says that a pickup truck, with its lights on stopped along the side of a road had drawn his attention in April 2011. A man was standing next to the stopped truck. The trooper claims that he pulled over to see if the man standing near the truck needed assistance.

After stepping out of the patrol car, the trooper asked if the man needed assistance. The man said no and the trooper continued to question the man. The trooper inquired if the man owned the truck. He did not. It was then that the trooper approached the man sitting in the driver’s seat and asked the second man if everything was okay and if anyone needed assistance.

The trooper received the same answers from the driver as he had received from the man standing outside the truck. Nonetheless, the trooper claims that he smelled alcohol on the breath of the driver. Ultimately the driver was arrested and charged with DWI. The driver sought to have the field sobriety tests and evidence of DWI thrown out, arguing that the officer had no legal basis to continue the encounter after first learning that no one needed assistance-the claimed basis for the encounter.

The Superior Court judge disagreed. The man was ultimately placed on probation for one year, with a 30 day suspended jail sentence. The appellate court says that even though the man outside the truck had said that no one needed assistance, the trooper “still had not definitively determined whether assistance was needed by the two other occupants of the truck.” The court upheld the DWI conviction.

Source: The Herald-Sun, “Court denies DWI appeal,” Beth Velliquette, May 15, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?  

How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

 

Illinois Court Blocks Forced Draw From Motorist


Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.

A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.

Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.

Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.

"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
 

DUI BLOG

A North Carolina state highway trooper reportedly did not appear in court Monday. The court calendar apparently included at least 20 cases involving allegations of driving while impaired where the trooper was the arresting officer. In all, as many as 90 misdemeanor traffic charges were scheduled for hearing and in the absence of the state’s star witness, the Montgomery County judge presiding over the court calendar reportedly dismissed the charges.

It is unclear from news reports at what stage the court cases had reached before the trooper failed to appear in court Monday. The District Attorney’s Office apparently refused to indicate whether or not prosecutors will seek to pursue any of the cases, including the 20 or so cases involving DWI charges. It is equally unclear from the media whether the prosecutor or the judge initiated the dismissals.

The state trooper who had ticketed the defendants who had court appearances Monday is also a Candor town commissioner. He has been under fire after his own arrest on serious allegations that he unlawfully accessed a government computer. Some people apparently are speculating that the town commissioner’s legal difficulties may be one explanation for his failure to appear as a state trooper to support the prosecutor’s misdemeanor cases in criminal court.

It may be possible that many of the 90 dismissed cases, including the DWI charges, could be brought back into court for prosecution. In the meantime, those who had been charged with the variety of crimes may be in legal limbo as prosecutors decide how to proceed.

Greenville DWI defense lawyers understand that many people can be confused by many aspects of the complex rules of court in North Carolina. Often, in misdemeanor cases especially, many people in Pitt County and other areas of North Carolina are tempted to just pay the ticket or plead guilty in court to get the matter behind them.

It is important to discuss an individual case to consider speaking with an experienced criminal defense attorney when facing a charge to better understand what potential defenses may be available and what the consequences may arise as a result of pleading guilty to a crime.

Sources:

WFMY News, “Wayne Holyfield No Show In Court; 90 Traffic Cases ‘Dismissed’,” April 30 2012

WFMY News, “Candor Commissioner Wayne Holyfield Refuses To Resign Despite Community Demands,” April 10, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

The North Carolina Court of Appeals has ruled that law enforcement violated a driver’s constitutional rights when the driver was pulled over for a traffic stop in 2009. Police had claimed they received a report of an alleged break-in or robbery a Dollar General store on Nov. 6, 2009. Police had received descriptions of the two alleged robbers, who reportedly fled from the store on foot.

Roughly four hours later, police say they observed a car in the same area. A police sergeant says he heard a car door slam and observed the vehicle drive off. The officer stopped the car and noticed that the occupants of the vehicle were not the same race as the descriptions of the two alleged robbers. Nonetheless, the officer continued to pursue the traffic stop and the driver was later arrested on suspicion of drunk driving.

The Court of Appeals says the officer claimed he smelled alcohol coming from the vehicle during the traffic stop. The driver reportedly failed a Breathalyzer test and was later convicted of driving while impaired under North Carolina Law.

The officer reportedly testified during a hearing in the trial court of the defendant’s motion to dismiss the DWI charges that, “my thought process at that point was that the vehicle was possibly picking up robbery suspects, and I wanted to investigate the vehicle for that reason.”

However, the officer did not have any information about which way the alleged robbers had fled four hours earlier. The Court of appeals ruled that law enforcement does not have such unfettered discretion to conduct a traffic stop.

The court says the officer’s basis for the traffic stop was unconstitutional. In the opinion, the court writes, “Defendant argues this did not amount to reasonable suspicion because armed robbers would not be hiding in the woods near the scene four hours after the crime then proceed to yell and slam car doors while attempting to remain unnoticed.” The Appeals Court agreed and threw out the evidence of impairment as the fruit of an unlawful traffic stop.

The Court of Appeals ruled, however, that law enforcement cannot “pull over any citizen driving without exhibiting any traffic violations in the vicinity of a break-in or robbery with the most minimal suspicion of involvement in the crime.” The Constitution provides people with guarantees against unreasonable interference from government intrusion.

Greenville DWI defense attorneys know that constitutional guarantees are more than mere technicalities. Constitutional freedoms are among the most important rights that found the basis of our country.

Source: Ashville Citizen-Times, “Appeals court cites illegal stop in dismissing Henderson County DWI conviction,” Clarke Morrison, Jan. 2, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm