Blood Draws May Require a Warrant in Some Suspected Drunk Driving Cases

By: Brent Scott

If you are of the opinion that our government is already too invasive (think PRISM – the clandestine mass electronic surveillance data mining program launched by the NSA back in 2007), you may not want to read any further.  Did you know that by merely obtaining a driver’s license you are also consenting to a blood test? 

Michigan’s implied consent law provides that a person operating a motor vehicle is considered to imply his consent to have chemical tests of his blood, breath, or urine to determine the amount of alcohol or a controlled substance if the person is suspected of operating while intoxicated.

Now, courtesy of a recent SCOTUS decision, the pendulum may be swinging in the other direction.  In a 5-4 decision, authored by Judge Sonya Sotomayor, the Supreme Court agreed with Tyler McNeely’s defense counsel that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment.  

A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.  However, as our SCOTUS likes to do, it opened the door for an "exigent circumstances" exception in some drunk-driving situations where a warrant would not be required.

Specifically, in McNeely, the Defendant was stopped for speeding.  McNeely was asked to submit to an alcohol breath and blood test, both of which he refused.  When the hospital staff took a blood sample without the arrested driver’s consent, the result was that McNeely's blood-alcohol levels were above the legal limit; he was charged with driving while intoxicated. 

McNeely’s defense lawyer moved to suppress the test arguing the blood draw constituted a search and the officer needed to obtain a warrant.  After all, the officer testified at the suppression hearing that he had time to obtain a warrant, but simply chose not to.   

So where does this leave us?  It appears that prosecutors are barred from arguing that implied consent searches are “per se” valid and constitutional because a blood draw is a "search".

Justice Sotomayor’s decision states:

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant…. "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.

However, as the loony Lee Corso likes to say, “not so fast my friend.”  The Court also reiterated that police are not required to get a warrant if there is some true exigency:

 We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect…” and …"exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.

Well that certainly clears it up for me…   

From a practical standpoint, it is tough to tell how the McNeely ruling will play out on the highways and byways of America.  On one hand, metabolism does not automatically create an exigency thus, a warrant is called for.  On the other hand, since a warrant takes time that creates a delay where alcohol will be metabolized and eliminated from the suspect’s blood stream, minute by minute by minute. 

While time seems to be the key element in the evidence preservation equation, the High Court did not elaborate on what the exigent circumstances might be to trigger an application of the exception.

Perhaps law enforcement will be able to streamline the warrant process in drunk driving cases – I’m sure the district court judges will love being woken up at 2:00 a.m. to make probable cause determinations. 

Bottom line: the explicit recognition that some chemical tests require a warrant is certainly a good thing for defense attorneys and for the rights of the accused.  As always, it takes good lawyering to figure out how to best use the McNeely case. 

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Entrapment of a Drunk Vehicle Passenger

By: Timothy P. Flynn

This would have made a great appeal had the accused not pled to a lesser charge.  A district judge from Brighton accepted a plea from a woman who moved from the passenger seat to the drivers seat of her drunk boyfriend's truck at the command of a police officer who happened upon the scene of a local restaurant.

District Judge Theresa M. Brennan ruled that it is not entrapment when a police officer requests [demands] an obviously drunken passenger to move a vehicle, then arrests her for drunk driving after she backed right into his patrol car.  The woman was convicted via plea of the lesser offense of impaired driving; she allegedly had a BAC of .17, making her eligible for a "super drunk" charge.

Prior to the woman's plea, her attorney argued for dismissal of the drunk driving charge based on an entrapment defense.  Entrapment is when an otherwise law abiding citizen is induced to commit a criminal act.

The defense lawyer asserted that the woman was placed in a position of either resisting an officer or operating a vehicle with an illegal blood alcohol level; she chose to obey the officer's command.  Not taking the bait, Judge Brennan ruled that the woman made a "bad decision", and that the Brighton police officer was just, "doing his job."

Now that the woman has pled, her right to appeal could have been compromised depending on the procedure that played-out in the case.  The now-convicted woman is scheduled to be sentenced sometime next month.

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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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The United States' Crime Clock

I would not trade living in an open Democratic society for anything.  Ours is a government of laws where personal liberties are ingrained into the societal fabric as rights.

Freedom comes at a price, however.  One component of our Democratic society is the constant tension and interplay between our freedoms and the enforcement of our laws.

One of the costs we all pay at the national, state and local levels is the cost of enforcing our criminal laws.  Some of us pay directly as crime victims; the rest of us pay indirectly in maintaining the much-needed law enforcement apparatus and court system.

Still others among us jack-up the costs of freedom by committing crimes.  On a national level, the modern crime rate is truly shocking.

Here is a  look at the crime rate in the United States according to U. S. Department of Justice:

Homicide.  One person is murdered in the US every 31 minutes.

Rape.  One person is raped or sexually assaulted every 2.7 minutes.

Assault.  An assault occurs every 7.2 seconds.

Theft.  A person is a victim of theft in the US every 2.3 seconds.

Burglary.  A home is burglarized somewhere in the US every 9.1 seconds.

Domestic Violence.  One woman is victimized by an intimate partner every 1.3 minutes; One man is similarly victimized by an intimate partner every 6.7 minutes.

Child Abuse and Neglect.  One child is reported abused or neglected every 35 seconds.

Elder Abuse.  An elderly person is victimized every 2.7 minutes.

Hate Crimes.  Someone reports a hate crime to the police every 73 minutes.

Drunk Driving.  A driver is killed in an alcohol-related highway accident every 29 minutes.

Identity Theft.  Someone's identity is stolen in the US every 8.7 seconds.

Policing for these crimes; charging the crimes; hiring law enforcement and prosecutors; appointing lawyers; and allocating judicial resources for the prosecution, supervision and, in some cases, incarceration is a gigantic portion of our public budget.

Here in Michigan, the Department of Corrections is among the largest bureaucracies in the state government. We routinely keep legions of our citizens behind bars.

Somehow, we need to figure out, as a free society, how to reduce this population and cut these costs.

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Disparate Sentences for Local NBA Stars

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer. 

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar. 

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

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Michigan's Super Drunk Law After Six Months

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer.  The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail.  One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs.   Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts.  If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense.  Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem. 

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC.  On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer.  If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

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"Super Drunk" Driving Law Takes Effect Today

If your Halloween plans for today include any heavy drinking, think twice before getting behind the wheel.

Persons caught operating a motor vehicle after bing-drinking, or with a high tolerance for alcohol, will face stiffer penalties starting today.  If a driver's blood alcohol (BAC) is measured at more than .17 grams per 100 milliliters, (more than double the legal limit) then the new enhanced penalties will apply.

Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.  The new law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

Once a conviction under this new law is abstracted to the Secretary of State, the driver's license will be suspended for one-year.  After a 45-day "hard suspension" where all driving privileges are suspended, a person can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device has been installed in the vehicle.  Under the old law, the hard suspension was only for 30-days and there was no interlock requirement.

Installing an interlock device will cost you about $50 and up to $100 per month to maintain.

Also, there are new penalties created under the Super Drunk law relative to operating an "interlocked" vehicle with a BAC of more than .025.  If a driver's probation is violated in this fashion, the Secretary of State will double the driver's license restriction by imposing a new 365-day suspension from the date of violation.

Beware if you lend your vehicle to a convicted Super Drunk on probation.  The new law requires impoundment and immobilization of any vehicle driven by a person under interlock restriction that is caught operating a vehicle without the device.  The owner of the vehicle is responsible for impoundment and storage costs.

Only time will tell whether this new law results in safer roadways.  There is no doubt that the tougher drunk driving laws implemented over the past 20-years have reduced (but not eliminated) drunk-driving related injuries and deaths.

One concern from within the trenches is how county prosecutors will use the new law in their charging decisions at district court.  Last year, the Oakland County Prosecutor stopped offering the lesser included offense of impaired driving to those charged with drunk driving.  This blog wonders whether a Super Drunk first offender will be offered a plea under the standard "Operating While Intoxicated" law, thereby avoiding the new interlock costs and restrictions as well as the other enhanced penalties.

If such plea reductions are not tendered under appropriate circumstances, the new law could result in many unnecessary jury trials.

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Driving While Distracted by Cell Phone

Has the time come for drivers to give-up cell phones while operating their vehicles? In Michigan, more municipalities and jurisdictions are saying, "maybe". The cell phone lobby, however, says, "not yet", and continues to block state-wide cell phone bans.

Despite the efficiencies achieved by the now-ubiquitous cell phone, Royal Oak, Southfield and other jurisdictions have considered outlawing this form of "multitasking". Many other Oakland County municipalities have enacted "driving while distracted" provisions which enhance the fines assessed when a cell phone factors into a traffic violation.

Many would say, "it's about time." Even the cell phone lobby may be coming around. A recent Sunday New York Times front-page article describes how the Cellular Telecommunications and Internet Association recently changed its position opposing cell phone bans, to a more "neutral" stance. The Sunday Times article, which summarizes the scientific data compiled about distracted driving, can be found at the following link: http://tinyurl.com/mq6r4x

Although mounting statistics compare cell phone driving to drunk driving, eight states have enacted legislation that prevent municipalities from passing ordinances prohibiting hand-held cell phone use. Other states like California, New York and New Jersey, have banned hand-held devices while driving. Royal Oak and Southfield may be next.

If you have suffered injuries from a driver distracted by a cell phone, or have had a traffic citation enhanced because of it, contact us to discuss your options.