SCOTUS Upholds Warrant Requirement for Blood-Draws

In January 9, the US Supreme Court was presented with a straightforward question:   can a law enforcement officer legally obtain a non-consensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment’s warrant requirement based upon the natural dissipation of alcohol in the bloodstream?

The simple answer – NO.  However, we all know that the law is never that simple.

Last month, SCOTUS decided Missouri v. McNeely, holding that the natural metabolization of alcohol in the bloodstream does not present a per se exigency categorically justifying a warrantless, nonconsensual blood test in all drunk-driving cases.

The High Court ruled that exceptions for exigency in this context require a case-by-case analysis, based on the “totality of the circumstances” to determine if the government could have obtained a warrant “within a reasonable amount of time.”  Also, a legitimate inquiry is whether securing a warrant “produce unacceptable delay” in light of the exigency of the dissipating alcohol levels in the arrestee’s blood.

So what does all this mean for the driving public?  And how does a police officer know when they need a warrant to conduct a blood draw following a drunk driving arrest? 

Here is some guidance offered by the McNeely Court:

[I]n a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer, . . there would be no plausible justification for an exception to the warrant requirement.

Hence, the Court disagreed with the State of Missouri’s argument that an exigency necessarily exists in any alcohol-related blood test given because that blood-alcohol content rapidly diminishes with time.  SCOTUS agreed, however, that significantly delaying a blood test to obtain a warrant would, "negatively affect the probative value of the results." 

Therefore, it is safe to say that when obtaining a warrant is impractical, the blood testing may well merit an exigency exception, and a blood sample secured without a warrant will be admissible evidence in the drunk driving case.   

Here are the take-aways from this case:

§  No automatic exigency due to the natural dissipation of alcohol in the blood-stream;

§  Police still must obtain warrants prior to seizing biological samples; and

§  Bona fide exigent circumstances will justify warrantless blood draws.

In sum, McNeely’s impact on Michigan law, where warrants for blood draws are the norm, is minimal.  Nonetheless, some believe that the holding in Missouri v. McNeely can be used as a sword to attack the implied consent laws –where even refusing to provide a biological sample to police as a driver is a separate offense.  Implied consent laws have been adopted by all 50 States. 

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Michigan Senate Votes to Keep BAC at .08 For Drunk Driving Law

The Michigan Senate unanimously approved a bill that will keep the legal limit of blood alcohol for drivers at .08.  Recently, there had been some debate to raise the legal limit from .08 to .10, where it had been prior to the turn-of-the-century drunk driving reforms.

The Senate bill is expected to be signed by Governor Snyder, keeping Michigan in line with the other 49 states, all of which have .08 BAC levels relative to drunk driving.

According to testimony at the Senate hearings on the bill, the Michigan State Police produced evidence that Michigan will also continue receiving a federal highway grant worth approximately $50 million by keeping the BAC right where it is.

Here at the electronic criminal attorney blog, we have to admit that we agree with the Michigan Senate on this one.  Best to err on the side of caution and safety where our public roads are concerned.

For those of us that have a relatively high tolerance for alcohol, just plan to have that night cap at home, when your car is parked safely in the garage.

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Expungement Bill Would Expand Second Chance

Here in Michigan, we have long had an "expungement" statute; technically known as an application to set aside conviction.  Until recently, the applicant could have been convicted of only one criminal count on one single occasion.

In mid-2011, the expungement statute was expanded to render a convicted individual still eligible if convicted of more than one crime, provided the following conditions were satisfied:

• A person who is otherwise eligible to file an application under this section is not rendered ineligible by virtue of being convicted of not more than 2 minor offenses in addition to the offense for which the person files an application.

• A so-called "minor offense" means a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00, and that is committed by a person who is not more than 21 years of age. [These are rare to the extent that many misdemeanors have a maximum 93-day jail sentence.]

Now, State Representative Stacy Irwin Oakes (D Saginaw) has introduced House Bill 4186 that would  enhance a convicted person's eligibility for expungement.  If the bill passes, a person convicted of a felony, that also no more than two misdemeanors, would nevertheless remain eligible to have the felony expunged under certain circumstances.  In the alternative, persons with no felony convictions would be eligible to have two misdemeanors expunged.

The idea behind Oakes' proposed legislation is that many people in our state, that made a mistake earlier in their lives, continue to be significantly burdened in the job market to the extent that employers simply do not hire anyone with a blemish on their record.

A state house fiscal agency that has analyzed this bill finds that up to 30% of adult citizens in the U.S. have some type of criminal record.  Among employers, statistics have consistently indicated that 66% have indicated they would not knowingly hire someone with a past criminal conviction.

Along these lines, 60% of all colleges consider the criminal history of their applicants in their admissions decision.  Thus, it is crucial from both an education and employment perspective to keep your record clean and clear.

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Small Pot Transfers Between Patients Immune Under Medical Marijuana Act

In a significant decision further deepening Michigan's medical marijuana jurisprudence, the Michigan Court of Appeals, in the case of People v Tony Green, held that non-compensated marijuana transfers from one registered medical marijuana patient to another are immune from prosecution under section 4 of the Medical Marijuana Act (MMMA).

This case is significant for two reasons.  First, the MMMA does not provide for a pot distribution scheme allowing care providers to sell their wares; the Act is quite vague on the subject of transfer and distribution of pot.  In reading the Act, it appears that the only way to legally transfer marijuana from care provider to patient [and now, thanks to this decision, from patient to patient] is the old-fashioned "hippy" way of bartering and gifting; you cannot do cash transactions.

Second, the Tony Green case is significant because it is a published decision, making it binding on trial courts throughout Michigan.

The undisputed facts of the case have Tony Green making a small, uncompensated marijuana transfer to another patient.  The amount of marijuana involved was less than the 2.5 ounce limit set forth in the MMMA, and the person Green was giving the marijuana to was also a certified patient under the Act.  [Technically, the person Green gave the pot to had not yet received his registration card but had submitted his application more than 20-days prior to receiving the medical marijuana donation from Green.]

The Court of Appeals held that such a non-compensated transfer between two marijuana patients is a "medical use" of marijuana expressly authorized by the MMMA.  Thus, such transfers are immune from prosecution.

Folks, you don't need us here at the Law Blogger to tell you that such "hippy" transfers are not the norm in the medical marijuana industry.  Pot farmers are not growing, er, medical marijuana as a hobby; they are growing pot to make money.

On this note, the Michigan Supreme Court heard oral argument last fall on a case presenting the issue of whether the MMMA provides immunity for cash sales of marijuana.  So, we shall have our answer soon.

Stay tuned...

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Marijuana Remains Controlled Substance Per Federal Appeals Court

In 2011, Americans for Safe Access, a pot-lobby group, took the DEA to federal court in Washington, D.C. to test the classification of marijuana as a controlled substance.  Last week, the United States Court of Appeals for the D.C. Circuit ruled that the DEA's decision to classify pot as a controlled substance  -a dangerous drug with no accepted medical use-  was not an arbitrary or capricious decision by the DEA.

So, for now, pot retains its controlled substance classification, and the federal pot laws prohibiting possession and distribution will continue to conflict with the growing number of state laws providing immunity for the medical use of marijuana.  The classification is particularly troubling for the pot-lobby, as it lumps marijuana into a group of other drugs like ecstasy, LSD and heroin that have a high potential for abuse, and no currently accepted medical use.

In their case, Americans for Safe Access pointed to hundreds of peer-reviewed medical studies in support of its argument to reclassify marijuana.  Circuit Judge Harry T. Edwards, however, was not convinced.  The pot lobby has vowed further appeal to the SCOTUS or, in the alternative, to bring another case once some more definitive pot studies have been completed.

As the D.C. Circuit issued its decision in the case, President Obama made public remarks that, as far as he was concerned, DEA agents had bigger fish to fry than the pursuit of recreational marijuana users.  While we here at the electronic criminal lawyer agree that federal agents should have higher priorities than investigating pot-heads, we have to wonder: are there medicinal attributes to pot, or not?

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Reddit Founder Commits Suicide While Under Indictment

Reddit co-founder Aaron Swartz

He has been labeled a "hacktivist".   He's been called the Cyber-Robin Hood.  But despite his astounding digital success at an early age, code programmer Aaron Swartz (26) apparently took his own life in his NYC apartment on Friday morning.

Some say that the little-watched criminal prosecution against the co-founder of Reddit.com, that was creeping toward trial in the United States District Court in Boston, may have precipitated the suicide. Statements from his family, on the other hand, acknowledged that Swartz long-suffered from bouts with depression.

The essence of the wire fraud and federal charges had Aaron, a "fellow" at Harvard University, using his access to the JSTOR database [a not-for-profit database of academic and scientific journals], and setting-up a "dummy" account on the MIT campus in Cambridge, to illegally download over 4-million documents which he presumably planned to make available to the public for free.

Mr. Swartz was a proponent of the notion that all information, regardless of source, should be available over the Internet for free.  At the age of 14, he wrote the program that became known as "really simple syndication", or RSS.  More recently, he was the owner of a company that merged to become the content-streaming upstart, Reddit.com.

The two named "victims" in the indictment, JSTOR and MIT, treated the case differently.  For its part, JSTOR communicated to the U.S. Attorney that it did not want to see the case against Swartz prosecuted.  MIT, on the other hand, despite its overall digital philosophy of open data sharing and "hands-off" data policing, did request that Swartz be prosecuted.  That's all the U.S. Attorney needed to hear.

Swartz had acquired a reputation with the feds as a highly-skilled hacker.  Back in  2009, the FBI investigated Swartz, but could not prove that he hacked into, then downloaded over $1 million dollars worth of public court documents from the pay-walled court record system known as PACER.

Perhaps the feds had the need for revenge in recommending the issuance of the two-count indictment against Swartz last year.  The aggressive prosecution of Swartz has now been characterized in hindsight as federal "bullying".  In his blawg Simple Justice, Gotham's Scott Greenfield had this to say about it:

Aaron Swartz was just today's victim of government overreaching and abusive prosecution, largely undistinguishable from the multitudes who came before him. But you don't know about them, as they weren't 14-year-old RSS code writers. So you didn't notice. You didn't care. They didn't exist to you, even as they faced 50 year sentences just like Swartz.

Well, we here at the Law Blogger say, RIP young Aaron Swartz.  And we do hope that information of all stripes continues to be accessible on the Internet and, that most of it is free to the public.

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Appeals Court Creates New Crime to Affirm Conviction

This case, State v Helen, arose out of North Carolina.  The facts, on the surface, were about as favorable as it gets for the prosecutor.

The accused had a tail light out.  [If I had a dime for every defendant I represented who was pulled over for a tail light...]  The officer stopped the motorist; the stop led to a search of his vehicle and, eventually, a drug conviction.

Here is the problem that arose on appeal: in North Carolina, there is a little known wrinkle in their motor vehicle code which provides that, so long as a motorist's other tail light is functioning, having one light out is not a violation.

This case went all the way to the North Carolina Supreme Court.  Now, if I was sitting on that High Court, my vote would be to reverse the conviction.  If the officer lacked probable cause to conduct a traffic stop, then basic Fourth Amendment constitutional law provides that the evidence seized in an illegal stop and search is excluded as the proverbial "fruit of the poisonous tree".

A constitutional "no-brainer", right?  Guess again.  The divided High Court essentially created a new traffic law by holding that, so long as the officer held a reasonable belief that a law had been broken, the search was legal.

But citizens, take note that this "reasonably-held-belief" standard does not work both ways.  If you, the motorist, reasonably believe that you are obeying the traffic laws, [say you are texting in a municipality where you believe no distraction ordinance has been adopted], but in fact, you are violating a provision of the traffic code, then your ignorance of this law is no defense and you can get a ticket.

The "take away" from this case from North Carolina is that ignorance of the law is ok if you are a peace officer, but not if you are an ordinary citizen.

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