Tag Archives: DUI

NFL to Increase DUI Penalties

CC image Wikipedia.orgNFL players who commit an alcohol-related driving offense may soon face a suspension from the league, said a source at Fox Sports.

The league office wants to increase penalties in hopes that it will deter players from getting behind the wheel after a night of drinking. The National Football League Players Association already offers transportation services to any player that needs a ride after a night of drinking, and many teams offer their own type of safe-ride program, but drinking and driving is still a significant problem throughout the league. 10 players have already been booked on alcohol-related driving offenses this year, while 17 players were booked on similar charges in 2012. The most notable arrest was that of Josh Brent, who now faces intoxicated manslaughter charges after he crashed his car while drunk, killing teammate Jerry Brown.

Adolpho Birch, head of the NFL’s drug testing policy, said the league would welcome a new program with the Players Association.

“We would entertain any program collaboration, initiative or partnership that looks like it was feasibly calculated to reduce the number of incidents involving players, club employees and league employee who drive while impaired,” said Birch. “That’s a given.”

The league wants to implement a mandatory suspension for anyone who commits an alcohol-related driving offense, and many players are in favor of tougher penalties. A source for the Players Association said “players have been open to discussion and already discussed increasing discipline on DUIs.”

Although players might face more discipline in the wake of an alcohol-related driving incident, both the league and the Players Association want to develop a better program to educate players so they decide not to drink and drive for reasons other than a possible suspension.

“From our end, we look at three or four different areas where we provide education, awareness and resources. We also look at deterrents,” Birch said. “We need all to be as effective as they can to reduce the incidents as much as possible.

First Things First

Before the league and the NFLPA sit down to hammer out a new clause in the personal conduct policy, they first want to address another issue that has made major noise across other sports – the use of performance enhancing drugs, specifically Human Growth Hormone.

The league currently tests for some PEDs, and there have been over 50 suspensions related to PED use since 2010, but the league currently does not test for HGH. Many athletes and league officials believe HGH use is rampant in the NFL, but nobody has an exact number since players aren’t tested for its presence.

The league and the NFLPA are currently working towards a testing program for HGH, and the sides are expected to reach an agreement in the near future. Once the dust settles, both groups will undertake the task of curbing drunken driving related incidents.

Related sources: Fox Sports, CBS Sports

Jason Kidd Pleads Guilty to DUI

CC image Wikipedia.orgFormer player and current NBA head coach Jason Kidd pleaded guilty on Tuesday to a charge of misdemeanor drunken driving for his role in a traffic accident that occurred after a night of drinking.

Kidd was placed on interim probation for the violation, and he’ll be required to speak to area high school students about the dangers of drinking and driving. If he successfully completes his community service, the charge will be reduced to a driving while ability impaired violation.

For his actions, Kidd could have received three years of probation, but both sides opted to use the mistake as a chance to educate local teens on the dangers of drinking and driving.

“He’s a role model to kids and other people. And he’s going to have the opportunity to talk to them about the foolish mistake that he made and the fact he took responsibility for his actions,” said Suffolk County District Attorney Thomas Spota. “That is, for me, more important than three years’ probation.”

The Night in Question

On July 15, 2012, Kidd attended a charity event in East Hampton, NY. Kidd was reportedly visibly intoxicated when he got into his Cadillac SUV at the end of the night. He drove 10 miles before crashing his SUV into a telephone pole in the community of Water Mill.

When officers arrived on the scene, they noticed that Kidd was unsteady on his feet, smelled of alcohol and had bloodshot eyes. When asked how many drinks he had that night, Kidd said, “a couple, of drinks, three or four.” He was taken to a local hospital and treated for minor injuries.

Town Court Judge Andrea Schiavoni said the crash could have been much more devastating.

“You could have killed yourself. You could have killed someone else,” said Schiavoni. “I hope you wake up every day happy to be here.”

Others, like the organization Mothers Against Drunk Driving, felt that Kidd’s sentence was too lenient. MADD wanted Kidd to be required to install an Ignition Interlock Device on his vehicle, and they asked for all states to consider stricter IID laws.

“MADD urges every state to demonstrate that they take drunk driving seriously by passing all-offender ignition interlock laws and prosecuting drunk driving to the full extent of the law.”

Related source: ESPN, TMZ

Racism in Arizona: An Interview with the Attorney representing the Sober Man who was Charged with a DUI

CC image Wikipedia.orgLast week, we featured a story on our blog about Jessie Thornton, an Arizona man who was arrested and charged with DUI despite blowing a .000 on the breathalyzer test. Friday we spoke with Marc J. Victor, the attorney who is representing Jessie in his case against the city of Surprise, Arizona. Mr. Victor was gracious enough to provide us with some interesting notes about the case.  Check out the transcript of the interview below.

1. I took a look at the various incident reports and police statements, but I couldn’t find how Jessie preformed on the physical field sobriety tests. Did Jessie pass the physical test, or did the test give the police cause to bring him downtown? 

“Well it depends on who you ask. If you ask the police, he didn’t pass. Jessie told them about his knee and toes, and his upcoming surgery, but they still decided to detain him. If you ask the drug recognition expert who examined Jessie at the station, he’ll tell you Jessie passed all of his tests. The DRE said he showed no signs of impairment.”

2. Mr. Thornton has had a few run-in’s with the Surprise Police Department in the past. Do you think he is personally being targeted?

“The past incidents do nothing but corroborate our case against the city. Jessie was charged with harassment by the SPD, but that was later dismissed. There was another time when he was cited for not having his license. His wallet was in his gym bag in the back of his vehicle but the officer would not let him retrieve it. Another time he was stopped and asked to provide his insurance information. He had just gotten an updated card and accidently handed the cop his expired card. He told the cop he knew it was current. He then found his current card and tried to give it to the officer, but he said it was too late, he had already started writing the ticket.”

3.  Do you think this was a case of racial profiling?

“It certainly looks like it, but that’s what we’re working to find out. We’re trying to find out if others have been subjected to similar incidents with the Surprise Police Department.”

 4.  The demographics of Arizona show that the state is 57% white, but in Surprise it’s 86% white. Have you heard of or dealt with any other cases involving the SPD that had similar racial implications? 

“There has been a lot of racially charged cases involving the Hispanic community and immigration laws. Judge Snow recently ruled that some police departments were illegally stopping people they thought were undocumented immigrants.”

Mr. Victor was referring to the recent ruling against Maricopa County Sheriff Joe Arapio and his department. The Maricopa County Sheriff’s Department was sued over alleged racial profiling against Hispanics. Judge Snow found that Arapio and his department violated the rights of Hispanics through illegal detentions and racial profiling. The department has been forbidden from using race as a reason to stop a car and detain its passengers in order to verify citizenship unless there is “reasonable belief” that a crime has been committed.

5.  How is the case proceeding against the city? What stage are you at?

“We have filed a notice of claim, and we intend to file the lawsuit by the end of the year.”

In addition to speaking with Appelman Law Firm, Mr. Victor directed us to an interview he did on the Double Wide Radio Network with Jessie.  It’s an enthralling interview that allows Jessie to share his side of the story. Check it out.

We’ll certainly be following the case as it plays out, and we wish the best for Jessie and Marc. We’d also like to thank Marc Victor and his firm at Attorney for Freedom for speaking with us about the incident.

Former NBA Player Blaylock Charged With Vehicular Homicide

CC image Wikipedia.orgFormer NBA All-Star and Atlanta Hawk Mookie Blaylock has been charged with vehicular homicide after the SUV he was driving crossed the center line and killed a woman in a head-on crash.

According to the police report, Blaylock was driving his Cadillac Escalade on May 31 when he lost control of the vehicle. His SUV crossed the center line and collided head-on with a minivan carrying 43-year old Monica Murphy. Murphy later passed away at the hospital.

Blaylock’s driving record is littered with violations, which eventually led to the suspension of his license. In addition to the vehicular homicide charge, Blaylock has been charged with driving with a suspended license and failure to maintain his lane.

Determining the Cause

Officials are still trying to determine what caused Blaylock to lose control of the vehicle. Blaylock said he suffered a blackout while behind the wheel, but authorities wanted to conduct a blood test to see Blaylock had anything illegal in his system.

Although no alcohol or drugs were found in his system, authorities had good reason to suspect Blaylock may have been driving under the influence. A quick search of his driving record reveals that he has been cited for DUI on seven different occasions.

Blaylock was admitted to the hospital in critical condition following the crash, but he has since made a recovery. Medical personnel are assisting authorities in determining if Blaylock suffered a medical emergency that caused him to pass out behind the wheel.

From One Cell to Another

Blaylock was released into police custody after he was medically cleared. He was taken to the Clayton County jail, but later posted the $250,000 bond to secure his release. Despite posting bail, Blaylock was not free to go as he pleased. He was immediately taken into custody and brought to the Spalding County jail. It turns out Blaylock was a wanted man before he was involved in the accident that killed Murphy.

Blaylock had a warrant out for his arrest in Spalding County, where he was wanted for failure to appear in court for drug possession and DUI charges.

A Look at the Law

Although the charge could be upgraded if authorities discover new evidence that shows Blaylock was under the influence of an illegal substance, the former point guard was only charged with second-degree vehicular homicide. According to Georgia law, second-degree vehicular homicide is considered a misdemeanor, “that upon conviction will result in a sentence of up to one year or a fine of up to $1,000 (or both).” This charge is much less serious than a charge for first-degree vehicular homicide, which is categorized as a felony.  It carries a possible sentence of 3-15 years in prison and a much higher monetary fine. A person will automatically receive a first-degree charge if alcohol or drugs are found in their system.

Related sources: Yahoo, CBS, Allan M. Trapp Attorney at Law

Memorial Day Weekend Leads to Traffic Accidents, DUIs in Minnesota

At least four people were killed and roughly 360 individuals were arrested for DWI over the Memorial Day holiday in Minnesota, according to preliminary data provided by the Minnesota Department of Public Safety (DPS) Office of Traffic Safety.

CC image Wikipedia.org

The total number of traffic fatalities matched the four fatalities over the same weekend a year ago.  Minnesota has seen a wide range of traffic deaths over Memorial Day weekend dating back to 2008.  There were no deaths on the roads during the holiday weekend in 2011, while there were 13 reported causalities in 2009.  Of the 28 traffic related deaths during Memorial Day weekend since 2008, 14 have been drunk driving related.

The four fatal crashes took place in Douglas County, LeSueur County, Hennepin County, and Morrison County.  The victims ranged in age from 19 to 81.

DUI’s Down From St. Patrick’s Day

Although more than 350 people were arrested for driving under the influence during the holiday weekend, the total is less than the 400 reported arrests over St. Patrick’s Day weekend this year.

It may not be surprising that more people decided to celebrate the Irish holiday by getting behind the wheel after having a few too many drinks, but there was plenty of law enforcement on the roads this weekend, as Memorial Day fell during the annual Click it or Ticket campaign.

The campaign, which began on May 20 and runs through June 2, has already netted 4,316 seat belt violations.  Law enforcement officials have increased their daily patrols, and they are keeping a closer eye on drivers and their passengers to ensure everyone is buckled up.

We talked about the importance of wearing your seatbelt when you’re in a car during a blog post last week, but it’s extremely important considering the Office of Traffic Safety has released updated fatal crash statistics for 2013.  So far, 112 people have been killed on Minnesota roads this year.  That is 13 more than last year, when 99 traffic fatalities were reported after the Memorial Day weekend.

Related sources: Minnesota DPS, HometownSource.com

Horses, Tractors and Lawnmowers: More Weird DUI Stories

CC image Wikipedia.orgLast time we rounded up some weird DUI stories from around the web, we talked about a man who blamed his erratic driving on swerving to avoid an elephant, and another driver that was found dancing naked in the street.

Today we look at three more individuals who took a strange route to a DUI charge.

Drunk on a Horse

A Montana woman was recently charged with her fourth DUI after trying to ride her horse around her neighborhood while intoxicated.

Dawnalee Ellis-Peterson, 43, was charged with felony DUI and misdemeanor counts of driving without insurance or a valid license after she went on a joyride late last month.

According to the police report, officers approached Ellis-Peterson after they saw her riding her horse in a local neighborhood.  Officers realized she was extremely intoxicated, and they helped direct her back to her home.  Ellis-Peterson initially cooperated with officers, but minutes after returning to her house she called the police department to complain, saying that she “should be able to ride her horse without getting pulled over.”

The department sent an officer to Ellis-Peterson’s home to check on her. When she answered the door she was completely naked, and told the officer “I’m just drunk, leave me alone.”

Despite all her actions, Ellis-Peterson still hadn’t received any tickets up to this point. A half-hour after the officer left her residence, a neighbor phoned police to report that they had seen Ellis-Peterson getting in her car.  She was quickly located by officers and cited for DUI.

It’s uncertain what type of car she was driving, but if we had to guess, our money would be on a Ford Bronco or a Mustang.

John Deere Drunk

A 26-year-old in New York was arrested last week after he was caught operating his riding lawn mower while under the influence of alcohol and drugs.

Scott McKenzie took his lawn mower out for a joy ride down Main Street when he was spotted by Oakfield police officers.  After a short interrogation, officers determined McKenzie was operating a vehicle while impaired by drugs and alcohol.  They also cited him for possession of marijuana and failure to display a slow-moving vehicle emblem.

When questioned about the incident, McKenzie did not deny the charges.  He admitted he was driving with marijuana in his system, and he added that he was only riding on the shoulder, but he was still hit with a slew of tickets.

McKenzie went on to say that he’s been the butt of plenty of jokes lately.

“Everybody at the store is laughing at me, and let me tell you what I told one of my friends for real, that, look, I got a DWI for riding my lawn mower at 11:30 at night, and she laughed at me and laughed at me and, let me tell you what, it’s not right, it’s not right.”

DUI on a Tractor

A Georgia man found himself in trouble with the law after the tractor he was driving collided with a vehicle when he was trying to cross the highway.

To make matters worse, Michael Coules, 65, was drinking a beer while operating the oversized farm equipment.

Neither Coules nor the driver of the other vehicle suffered major injuries.  Authorities said Coules remained on the tractor seat after being hit by the other car, “even after [the tractor] was ripped into three pieces.”

The accident shut down the highway for nearly two hours while authorities cleaned up the site.  Coules was arrested and taken to the local county jail for his role in the accident.

Related sources: Billings Gazette, Huffington Post, Savannah Now

McNeely DWI part 2 – Constitutional Rights

Drunk DrivingIn part 2 of their series on the implications of Missouri v. McNeely, which has the potential to affect DUI laws across the nation, Criminal Defense attorneys Stacy Kaye and Geoffrey R. Saltzstein discuss the role of the Constitution plays in deciphering the ruling.  If you want to learn more about the decision in Missouri v. McNeely, check out their first post on the subject.

The best place to start our discussion of the issues surrounding this whole McNeely frenzy is identifying the fundamental constitutional protections that all of us enjoy, as enshrined in the Bill of Rights, and how these rights are implicated by a DWI arrest.  Which of these rights are implicated throughout a DWI arrest, and how the courts have decided the rights are or are not protected in these situations, will give us a good foundation to navigate exactly what McNeely means for DWI law in Minnesota.

The first ten amendments to the United States Constitution, known as the Bill or Rights, were designed to protect individual liberties and freedoms from governmental intrusion.  Keep in mind that the tyrannical rule of Great Britain was fresh in the minds of the authors of the Constitution, and that during the debates over adopting the Constitution, the fear of tyranny from one’s own government was a very real concern.  To alleviate the fears of governmental abuses of power that many of the framers of the Constitution harbored, the Bill of Rights, designed to limit the power of the government to intrude on the rights of its citizens, was ratified shortly after the Constitution itself.

Government intrusion is generally either in the form of actions by government agents – most often law enforcement; or by political action through the legislative branch – Congress, and the executive branch – the President.  Both branches are elected offices designed to advance the will of the people at a given time, and the founders were quite rightly fearful of vesting too much power in any source, knowing full well how majorities have a tendency to get swept up in political fervor at the expense of minority rights.  Therefore, the Constitution structured the United States government with the goal of balancing and separating authority into three separate branches – legislative, executive and judicial – to provide a system of checks and balances.  The judicial branch, i.e. the courts, is supposed to be immune to political pressure, and was therefore assigned the task of safeguarding individual rights from the whims of the public, out of the concern that majorities, if unchecked, would adopt legislation that while popular, would undermine the rights of others.

The Growth of Individual Freedoms

The preference for individual freedom over government intrusion in criminal investigations and prosecutions is known in modern times as Blackstone’s Ratio.  Written in 1765 by the famous English legal scholar William Blackstone, the principle that it is “Better that ten guilty persons escape that that one innocent suffer,” actually dates back to the ancient Greeks and the Bible.  Evidence appears in the writings of ancient Greek and Roman philosophers, specifically Aristotle is said to have written that, “It is a serious matter to decide in the case of a slave that he is free; but it is much more serious to condemn a free man as a slave.” (Problems – though Aristotle’s authorship of Problems has been disputed). The idea also appears in the Bible’s opening pages, when The Lord told Abraham that “He would not destroy [the righteous] for ten’s sake” (Genesis 18:23-32).

The notion weaves its way through time, appearing in early English law and during the Salem Witch Trials of 1692, when Increase Mather, an early rabble-rouser in the American Colonies, wrote while decrying the injustice of the prosecutions that, “One would much rather that twenty guilty persons should escape, than the Innocent Person should be Condemned.” (Salem Story: Reading the Witch Trials of 1692).  Most importantly to American Constitutional history, though, Benjamin Franklin claimed in a letter to a colleague that the maxim, “has been long and generally approved; never, that I know, controverted.” (Benjamin Franklin to Benjamin Vaughan). Furthermore, John Adams invoked the principle when defending British Soldiers from charges stemming from the Boston Massacre, arguing that, “there never was a system of laws in the world, in which this rule did not prevail.” (Trial of British Soldiers)

Blackstone’s Ratio is the basis for what is known in American law as the Exclusionary Rule, which is intended to deter government misconduct by preventing the state from using evidence that it obtained through a violation of a person’s Constitutional rights to prosecute that individual.  The basis for this rule, again, is that while society does not like to see offenders go unpunished, it is a far greater evil to allow the government to violate our rights at will.

Protecting Our Rights

Chemical testing for blood-alcohol, which is used as the basis for arresting, detaining, prosecuting, convicting and sentencing offenders, implicates a number of fundamental rights granted by the Bill of Rights.  Most notably, chemical tests implicate the right against unlawful searches and seizures – the 4th Amendment, the right against self-incrimination – the 5th Amendment, and the right to due process – the 5th and 14th Amendments.

The framers of the Constitution believed that individuals had an inherent right to be free from unwarranted searches and seizures.  As a general rule, police cannot arrest or detain a person, or search their person, their belongings or their homes, without the explicit approval of a Judge signing off on a warrant.  It should be noted that although law enforcement and judges are often thought of as working together, law enforcement is actually an arm of the executive branch, whereby judges obviously belong to the judicial branch, and are thus charged against protecting individual rights against intrusions by the other branches of government.  Judges are therefore given the important role of being the first line of defense in the protection of the Bill of Rights in that they are charged with neutrally reviewing law enforcement requests for search warrants and arrest warrants to ensure that probable cause exists to justify the requested intrusion.

In addition, the framers of the Constitution firmly believed that a person should not be compelled by the government to provide incriminating evidence, as formalized in the Fifth Amendment.  Self-incrimination can take many different forms; the police may attempt to question a person who is their custody, but before doing so they must inform that person that they have Constitutional protections, one being the right against self-incrimination, or more popularly known as a person’s Miranda rights (a reference to the landmark United States Supreme Court case, Arizona v. Miranda.)

Self-incrimination can also be found in courtroom testimony; witnesses and defendants are protected against providing evidence against themselves when answering questions that may tend prove their own guilt.  A person is allowed to invoke their right against self-incrimination, or “plead the Fifth [Amendment],” which guarantees that person will be required to answer any incriminating questions and that the state cannot comment on that person’s silence to a jury.  Self-incrimination can also take more subtle forms, as when suspects are compelled to provide evidence other than verbal testimony that can be used against them. For instance, DWI suspects are asked to submit to field-sobriety tests, a battery of physical or mental tests that will provide evidence of impairment, evidence that is intended to be used in prosecuting that suspect.

Necessity of Due Process

The framers of the Constitution also believed that due process, and fundamental fairness, were essential elements of a just, free society and legal system.  Criminal penalties for impaired driving are significant, including incarceration, fines, and the stigma of having a permanent criminal record. Impaired drivers are also subject to severe civil penalties, including the loss of their driving privileges, which for many affects their livelihood and ability to attend to the needs of themselves and their families, and can also include the forfeiture of their license plates and vehicles. Given the high stakes of being charged with, and potentially adjudicated guilty of, an impaired driving offense, courts have recognized that certain due process protections must apply to both the criminal and civil sides of an impaired driving case.

Over the next several weeks, Stacy and I will delve deeper into the specific aspects of each of the Constitutional rights implicated, where the Courts have drawn lines in the sand – or not; and talk about how the ruling in Missouri v. McNeely has affected the laws concerning these fundamental protections.

Related Sources:  http://www2.law.ucla.edu/volokh/guilty.htm

Weekend DWI Patrols Result in Over 150 Arrests in Minnesota

Over 150 drivers across the state of Minnesota were arrested for drunk driving on Friday night in connection with the state’s largest-ever DWI patrol.

Authorities decided to conduct the patrols on the eve of opening fishing weekend, an unofficial holiday for many across the state.  According to the Minnesota Department of Public Safety’s Office of Traffic Safety, over 150 squads from 70 different agencies across the state were involved in the crackdown.

Officers said about half of the roughly 150 arrests came in the Twin Cities metro area.

Friday’s DWI enforcement drew added attention because of the role social media played advertising the increased patrols.  The Minnesota State Patrol used social media to inform the public about the increased police presence in hopes of deterring would-be drunk drivers.

In addition to tweeting out pictures of the squad cars as they left the station, the Department of Public Safety tweeted out information about DWI arrests using the hashtag #May10DWI.

Previous reports had stated that authorities would tweeted out the names of those individuals arrested for driving under the influence, but they appeared to back off that statement, as they only tweeted out the age, sex, and location of a handful of perpetrators who were arrested.

However, the Twitter account @Mpls_DWI_Arrests tweeted out the names of some of the individuals arrested, also using the hashtag #May10DWI.  State Patrol Lt. Eric Roeske said that account was in no way affiliated with the Minnesota State Patrol or the Department of Public Safety’s Office of Traffic Safety.  The account which tweeted out the names has since been deleted from the Twittersphere.

The Office of Traffic Safety did not say if they planned to have another large DWI patrol in the future, but they do plan on concentrating their efforts to prevent drunk driving in the 13 counties that report the most DWIs.  That includes many of the Twin Cities metro counties, including Hennepin and Ramsey.

Related source:  TwinCities.com

Minnesota Police to Tweet Names of Those Arrested for DUI

CC image Wikipedia.orgNormally, getting mentioned on Twitter or in a friend’s Facebook status is a good thing, but you definitely don’t want to see your name in a tweet by the Minnesota State Patrol this weekend.

This Friday, 150 squads will hit some of the most-traveled Minnesota roads in the largest one-night DUI crackdowns in Twin Cities history.  If the authorities find that a person is driving over the legal limit, they’ll relay the information to the Department of Public Safety, who will publish the person’s name on Twitter along with the hashtag #May10DWI.

 

 

This is the first time state authorities have decided to use social media as a way of “shaming” those who are charged with DUI.

The Minnesota State Patrol decided to target this weekend because Saturday is the season opening day for fishing across the state.  With plenty of sunshine in the forecast, authorities expect increased traffic on the roads, and they hope their presence will help some fishermen make smart decisions regarding their alcohol consumption.

Nearly 30,000 people are arrested for DUI in Minnesota each year, and drunk driving accounts for one-third of the traffic fatalities in the state.

Related source:  My Fox 9

U.S. Supreme Court calls Minnesota’s DWI Laws into Question

The following post was written by Criminal Defense Attorneys Stacy Kaye and Geoff Saltzstein. After countless hours of research and decades of legal opinions, Stacy Kaye, the firm’s constitutional law expert, has begun writing the myriad of legal briefs and motions that will be the basis of the Appelman Law Firm’s challenge to Minnesota’s DWI laws; and Geoff Saltzstein has filtered the arguments into digestible material for our readers to gain a better understanding of the issues presented, and the looming questions our courts have yet to answer.

Below, Stacy and Geoff discuss the implications of Missouri v. McNeely, and foreshadow upcoming blog posts that will build off this historic ruling.

On April 17th, 2013, the United States Supreme Court delivered an opinion, Missouri v. McNeely, which called into question nearly every aspect of Minnesota’s DWI law.  Not only does the ruling in McNeely raise doubts about the constitutionality of our DWI law in its entirety, Supreme Court Justice Sonia Sotomayor explicitly overturned what has become the constitutional basis for Minnesota’s DWI law.

Up until now, the legality of our DWI law has been based on the natural metabolism of blood-alcohol in a suspect’s body causing the forensic evidence of DWI, your blood-alcohol concentration (BAC), to be diminished as time passes. This allowed law enforcement to take samples of your blood, breath or urine without a warrant, as required in the Bill of Rights of the United States Constitution.

McNeely’s Argument

Missouri v. McNeely involved a DWI suspect, Tyler McNeely, who was stopped by a Missouri police officer for speeding and crossing the centerline.  After declining to take a breath test to measure his BAC, he was arrested and taken to a nearby hospital for blood testing.  The officer never attempted to obtain a search warrant, and McNeely refused to consent to the blood test.  The officer then directed a lab technician to take a blood sample, which revealed a BAC well above Missouri’s legal limit.  McNeely was ultimately charged with DWI, and asked the court to suppress the evidence of the blood test, arguing that there was no consent, and certainly no warrant, as required by the 4th Amendment of the Constitution.

Issues of warrantless blood tests have been argued, and rejected, regularly throughout the country; but in a decision by the U.S. Supreme Court in 1966, Schmerber v. California – which has been routinely misinterpreted – most notably by the State of Minnesota – the court ruled that the metabolism and natural dissipation of alcohol levels in the bloodstream created a situation where law enforcement did not need to get a warrant because the evidence was being lost with every minute that passed.  The ruling was deliberately limited to the circumstances specific to that case; and with advances in technology such as email, fax, and even video conferencing, the ability for law enforcement to obtain warrants has become infinitely more convenient, a fact that has been overlooked by nearly every state court in the country.

After almost 50 years, the Missouri courts finally decided that enough was enough.  The Supreme Court of Missouri ruled that, other than the natural dissipation of blood alcohol, there was no reason that the officer could not get a warrant, and he therefore violated McNeely’s constitutional right against warrantless searches, meaning the evidence of McNeely’s BAC could not be used against him, and that the body’s natural metabolism of alcohol can no longer be used as the sole-factor for a warrantless search.

Sotomayor Defends McNeely’s Rights

CC imageThe State of Missouri appealed to the United States Supreme Court, and Justice Sonia Sotomayor delivered the high court’s ruling, agreeing with the Missouri courts throughout her 15-page opinion, saying specifically that, “In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute [a situation] in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552 (2013).

In discussing the history of the law, Sotomayor pointed to a handful of egregious examples of state law with particularity, Minnesota being near the top of that list, and admonished the reasoning courts have used to justify warrantless blood tests.  These warrantless searches for evidence have not only become routine in DWI stops across the country, they’ve become part of the Minnesota DWI law by making refusal to submit to the blood-alcohol tests a crime in and of itself.

What’s Next?

The best place to start the discussion is the fundamental Constitutional rights that are implicated, violated routinely, and why they exist in the first place.  We’ll then move into the 4th Amendment right to privacy, and more specifically, the requirement that law enforcement obtain a warrant for any search.  Next, we will discuss what is known as the Frost Doctrine, or the “unconstitutional conditions doctrine,” meaning that the government cannot condition a privilege – driving, in this case – on the waiver of constitutional right – the warrant requirement for searches and seizures.  Then we’ll take you under the hood of the DWI process a little, and discuss the implications of the Due Process Clause in the 5th and 14th Amendments of the Constitution.  You’ll also get a glimpse into the crime of Refusal to Submit to Chemical Testing, a gross misdemeanor that you will be charged with, and convicted of, if you don’t “consent” to the chemical testing process.  Finally, we’ll wrap up the discussion, for the time being, with some of the more ancillary issues that will be raised, and any new developments in the Court of Appeals, or in the DWI law itself.

Even a cursory reading of Missouri v. McNeely raises questions about the constitutionality of Minnesota’s DWI laws.  But a closer study of the decisions and rulings that form the constitutional foundations of our DWI laws, and the effect that McNeely has on those foundations, reveals the potential effects of the ruling to be widespread and dramatic.  In the coming weeks Stacy Kaye and Geoff Saltzstein will discuss the various issues in greater detail, what the impact of McNeely will be in the near future and what the legacy of McNeely may hold for the future of Minnesota’s DWI laws. Stay tuned. Film at 11.