Warrant required for evidence

[tranquility]

What is the name of your state (only U.S. law)? U.S.

For the syllabus, see:
http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

The Supreme Court held there is no per se exigency on gathering blood evidence in a suspected DUI case merely because alcohol dissipates over time. Police must get a warrant if the driver does not consent to the taking of blood, or, some other exigency must be claimed for there not to be a 4th amendment violation. Many states, including CA, have allowed the forced taking of blood due to the exigency exemption as long as the force was not such so as to shock the conscience.

 

[justalayman]

Yeah!!!! Score one for the citizens. While it is a victory, it is a small one though as a warrant would not likely be difficult to obtain. PC is not difficult to claim when a cop is facing a person they claim is intoxicated.



So, does that mean that a law imposing punishment for refusing is no longer enforceable? For some reason I have a funny feeling it doesn't.


I just wish they would remove the exigency argument for allowing car searches though. That is the one I really have an issue with as it is so often abused and where requiring the obtaining of a warrant would tend to reduce the abuses. Once the vehicle is seized by the police, there is no exigency because the cops control the movement of the vehicle. Using an exigency argument there would be just as applicable to anything that is movable: a suitcase, a phone, a person, anything not so large somebody couldn't just pick it up and carry it away.

 

[CdwJava]

No, this could be a boon for DUI drivers and a risk to the rest of us.

In CA the Penal Code currently prohibits search warrants for misdemeanors other than theft. So, we cannot even seek such a warrant. However, I heard today that there is already movement in Sacramento to modify the section to permit such blood draw warrants.

The next problem is the logistical one. Since three hours from contact to blood draw is the legally accepted standard to charge the BAC with the operation of the vehicle here, the odds of a search warrant being written, reviewed, and then signed before that clock has run is slim. In my county we can rarely get a hold of a judge after hours, and only one of them lives in my city - the others live at least 45 minutes away and they do not have faxes at home. If the local judge is not on call, then you add an hour and a half to the travel and signing time. Put on top of this the hour (or more) to prepare the search warrant and have it reviewed (some agencies require DA or at least supervisory review), and the three hour mark is awful close. We are seeking to put into place a telephonic system, but we still have the problem of the statute which prohibits this and the lack of availability of on call judges. It also requires that you have multiple officers available as at least one must remain with the suspect while the other runs off to write a warrant. And then, do you detain at the scene while waiting for the warrant? Go to the hospital and wait in anticipation at the ER? Or go to the jail and wait for the results there? And, then you have to add driving time from the suspect's location to the medical facility for the blood draw! Or, in those counties where they have a nurse respond to the agency or the jail for the draw, do you call them while you are seeking the warrant, or do you wait until it is signed? And in jurisdictions where you have only one officer on duty these warrants will be physically impossible absent a telephonic system ... and will the inability of an officer to obtain a search warrant due to lack of contact with a judge or no telephonic warrants qualify as an exigency? This is going to result in some very dire consequences to the prosecutions of DUI drivers.

Since most repeat offenders tend to already have a suspended license, it is little consequence for them to receive another suspension for a refusal. Therefore, if they refuse FSTs and refuse a chemical test if arrested, they can pretty much get away scot free unless the observations are quite compelling to convince a jury beyond a reasonable doubt.

Establishing probable cause for a blood draw in a DUI case is not the problem - hence the reason it has been permitted as there had been both probable cause AND an exigency consisting of the metabolizing blood. What this ruling appears to do is remove the automatic exigency that had previously existed and compels us to try and seek a warrant ... which, at least in CA as of right now, cannot be done. This is a win for DUI drivers, not the public or even privacy rights.

 

[Mass_Shyster]

Since most repeat offenders tend to already have a suspended license, it is little consequence for them to receive another suspension for a refusal. Therefore, if they refuse FSTs and refuse a chemical test if arrested, they can pretty much get away scot free unless the observations are quite compelling to convince a jury beyond a reasonable doubt.

This holding has no impact on Massachusetts.

If Massachusetts, the police cannot draw blood or do a BT without consent. The Declaration of Rights (Massachusetts Constitution) prohibits it.

Article XII. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself.

The penalty for refusing a BT is worse than the penalty for DUI. Loss of license for 6 months first offense, 3 years second offense. No hardship license available for a suspension due to refusal. Penalties for driving with a license suspended for DUI or refusal are worse than DUI penalties and include mandatory jail time.

 

[CdwJava]

This holding has no impact on Massachusetts.

If Massachusetts, the police cannot draw blood or do a BT without consent. The Declaration of Rights (Massachusetts Constitution) prohibits it.

The penalty for refusing a BT is worse than the penalty for DUI. Loss of license for 6 months first offense, 3 years second offense. No hardship license available for a suspension due to refusal. Penalties for driving with a license suspended for DUI or refusal are worse than DUI penalties and include mandatory jail time.

That would be outstanding if we had something similar here. Unfortunately, it is rare that a suspended license offender suffers anything more than fines he does not have to pay and a suspension. I know people on their fourth and fifth suspensions who owe $thousands in fines and fees for prior offenses who shrug these cites off. And they buy junker cars that they do not care if they get towed.

So, in my state, this ruling could be a boon for DUI drivers as it may effectively keep them from being prosecuted in many cases.

 

[Mass_Shyster]

So, in my state, this ruling could be a boon for DUI drivers as it may effectively keep them from being prosecuted in many cases.

It doesn't sound like prosecution is much of a deterrent. So in the end, the state will save money by not prosecuting people, and the drunks will keep on driving anyway.

 

[CdwJava]

It doesn't sound like prosecution is much of a deterrent. So in the end, the state will save money by not prosecuting people, and the drunks will keep on driving anyway.

Prosecution for misdemeanor DUI can put people in jail ... misdemeanor prosecutions here for suspended licenses are rare and generally take place only after multiple arrests, and only if the DA's office has the staffing. My county only prosecutes misdemeanors if they are DV related or we hand walk the case to the DA on our knees, and then it usually takes several months for a filing to occur as they have too few prosecutors to purse misdemeanors.

Fortunately, most DUI drivers consent to the FSTs so we will tend to have at least those observations. Unfortunately, some DAs offices want to have a chemical test before they will go to trial and will not tend to rely solely on officer testimony. Of course, this varies by county. But, a driver that declines the FSTs and the test may well walk.

 

[justalayman]

But don't blame the law for deficiencies in California's system. I know you better than this but it almost sounds like you are trying to justify illegal tactics by the state because otherwise the state is not capable of being effective otherwise. California will simply have to figure out how to perform effectively within the law.

 

[CdwJava]

But don't blame the law for deficiencies in California's system. I know you better than this but it almost sounds like you are trying to justify illegal tactics by the state because otherwise the state is not capable of being effective otherwise. California will simply have to figure out how to perform effectively within the law.

Uh ... the "tactics" were NOT "illegal." The status of the law until two days ago was that compelled draws were perfectly lawful. Hardly "illegal." And, I know a great many legal scholars - including four Supreme Court Justices - that disagree with the USSC's take on this subject.

A side effect of this will be the inability to compel blood draws on defendants who are under the influence of controlled substances as well. So, we could also find that drug influence prosecutions will drop ... which, may not be bad in some cases, because if charged for other offenses the defense won't be able to raise drugs as a reason for the defendant's actions (not that drugs legally remove culpability anyway, but it sometimes plays to the sympathy of a jury). But, in CA being under the influence of drugs is essentially a non-criminal offense anyway. so I doubt we will see too great an impact from this except in those cases where it involves DUI on drugs.

This will effect not only criminal prosecution, but mental health commits as well! Because, at least out here, almost all mental health facilities will refuse a commitment until there is a blood test. Now, that tended to be an issue for mental health, but we would often be asked to assist to help protect the medical staff when the procedure was done but now there might be some question as to whether we could be involved in any way shape or form. As such, we might be left with no choice but to arrest mentally ill patients and place them in jail - NOT where they truly need to be ... the law of unintended consequences.

And, regardless of one's take on the decision the fact remains that the people that benefit from this decision are the criminals. Most likely the repeat DUI offenders as they are the ones who will see the greatest benefit ... at least in my state. The impact in your state might be different.

 

[justalayman]

CdwJava;3163090]Uh ... the "tactics" were NOT "illegal." The status of the law until two days ago was that compelled draws were perfectly lawful. Hardly "illegal." And, I know a great many legal scholars - including four Supreme Court Justices - that disagree with the USSC's take on this subject.

Um, let's see. Since when are SCOTUS decisions not able to be imposed retroactively, at least to active cases? While ex post facto laws are illegal, going the other way isn't. Just because it was determined two days ago it is un-Constitutional doesn't mean it was Constitutionally legal 3 days ago.

And, regardless of one's take on the decision the fact remains that the people that benefit from this decision are the criminals.

while the criminals may benefit, I believe all of society will benefit from the decision as it aligns, with what I believe, the Constitution was created for. It protects the rights of the citizens. To me, there have been too many decisions allowing the Constitution to be seen as irrelevant. I'm glad to see one enforcing the thing for a change.

Most likely the repeat DUI offenders as they are the ones who will see the greatest benefit ... at least in my state. The impact in your state might be different.

then as I said before, your state has to figure out how to work within what is now the law. Most of the issues you cited and why you believe the law is detrimental to the enforcement of law are not based in the law at all. They are functional deficiencies in the system in your state. When is that ever an excuse to ignore or circumvent Constitutional law?. They have to repair those deficiencies. If they cannot due to financial constraints, don't blame the law, blame the system.

 

[CdwJava]

Um, let's see. Since when are SCOTUS decisions not able to be imposed retroactively, at least to active cases?

That does not make the acts ILLEGAL, only might serve as good cause to suppress such tests later. Saying law enforcement, prosecutors, and the courts were committing ILLEGAL acts for decades would be akin to saying that they should be prosecuted or sued ex post facto ... which they can't.

While ex post facto laws are illegal, going the other way isn't. Just because it was determined two days ago it is un-Constitutional doesn't mean it was Constitutionally legal 3 days ago.

Sure it does. At least so far as it implies criminal or civil culpability on the part of the agents that were engaged in the activity that was - until two days ago - the accepted legal standard. Or, are we to hold law enforcement and prosecutors liable TODAY for acts that might be determined to be outside the protections of the Constitution tomorrow? How am I to possibly know that an act performed in compliance with good, solid, statutory and case law today might make me a criminal five years from now? Should I be prosecuted or held liable for following the law today? If I can be held liable for a ruling that has not yet come to be, why would ANYONE want to be engaged in the criminal justice system since we could not possibly know what the standing of the law might be tomorrow?

Not two weeks ago I took a compelled blood draw from a DUI driver that refused FSTs. fought with me when I arrested him, and refused to consent with a blood draw. He refused his consent and I had blood drawn anyway. He did not fight, but it was still a "forced" blood draw. Now, given this ruling, should I be criminally prosecuted for battery and sued under 1983 for a violation of civil rights because I compelled blood using acceptable medical practices and under the guise of well-established state and federal law?

It would make no sense to hold people accountable for a standard of the law that has not yet come into being.

Let's say they make the maximum highway speed limit 45 MPH tomorrow and removed the SOL for all offenses ... should you be prosecuted for all the years you were going at least 55? Imagine the money the state could make!

while the criminals may benefit, I believe all of society will benefit from the decision as it aligns, with what I believe, the Constitution was created for.

The exigency still exists as the evidence is dissipating, and through the practical application of the search warrant process the evidence will disappear. The benefit that might come out of this is that it might spur states to create a streamlined and near-instant warrant process. We already have a process for email warrants in some counties, and telephonic warrants are somewhat commonplace in some places - but not many ... yet. That will almost certainly change in the next few months (at significant taxpayer expense, I imagine).

The down side to that is that warrants may become things that receive less scrutiny at the front end and more at the back end (at court) as the process may become one designed to emphasize speed and convenience rather than content. As it is right now most search warrants have to be reviewed by a supervisor, a prosecutor, and then signed by a judge after he or she reviews it. You may say that is the fault of the system and not the Constitution, but this process is in place precisely to protect the rights of the people. Rulings such as this potentially tip the balance from checks and balances to expediency. These checks and balances serve a purpose, but with this ruling, those checks and balances will - by necessity - be forced to be streamlined ... perhaps at the detriment of the civil liberties of all.

Again, the law of unintended consequences.

 

[justalayman]

there is a difference between acting contrary to a law (illegal activity) and acting withing a law that was considered to be legal upon its' enacting and later deemed to be Unconstitutional (illegal) The latter is the issue here. The activity is and was illegal as determined by the SCOTUS decision. It is not a prosecutable offense due to a couple reasons: ex post facto laws are not able to be prosecuted and, it is not an offense which is deemed criminally illegal and as such, able to be prosecuted in a criminal court. At most it would be a civil claims issue but obviously due to the order of events and the status of the practice prior to the SCOTUS decision, not one able to be prosecuted even civilly. That does not alter the fact that the practice has been deemed to be illegal and as such, was illegal previously since the decision is based on a document that was in effect at the establishment of the country.

It would make no sense to hold people accountable for a standard of the law that has not yet come into being.

there is the problem. It has nothing to do with a law that is yet to come. It has to do with an existing law that has been deemed illegal (as in not legally enforceable, not a criminal act). This is not the creation of a new law but the invalidating of a law in place.

The benefit that might come out of this is that it might spur states to create a streamlined and near-instant warrant process. We already have a process for email warrants in some counties, and telephonic warrants are somewhat commonplace in some places - but not many ... yet. That will almost certainly change in the next few months (at significant taxpayer expense, I imagine).

Now you are getting my point. I am not against the enforcement of the laws as the laws in danger here are valid and beneficial to all. What I have a problem with is what has existed as a short cut or means to side step the Constitution; nothing more. So, fix the deficiencies in the system that this decision impacts. Don't say the decision is wrong because the system in place is not designed to function within the new ruling. Don't change the support of our rights because the system cannot function when our rights are considered. Change the system so it is effective when are rights are considered. If we do anything less, we are throwing out our democracy and creating a de facto government where the citizens have no rights.

 

[CdwJava]

Then you are not arguing that prior acts were illegal, only that the act has now been ruled unconstitutional and that future commissions may be actionable as a result, but will almost certainly result in a suppression of the evidence if contrary to the ruling. When you say that the act was ILLEGAL that seems to imply a criminal or tortuous act.

As for the process, the process in place now is designed to slow things down, to make sure the Ts were crossed and Is were dotted. This was largely by intent. Telephonic and even email warrants have existed for some time but have not been widely utilized because there tended to be little real or widespread need for them in most places. In most instances a scene could be frozen and suspects and other parties detained almost indefinitely while a warrant was obtained. Yes, it can be manpower intensive and time consuming, but the evidence was not generally disappearing with each passing second. By forcing a streamlining of the process, it is likely that the checks and balances currently built into the front end of the system will gradually disappear. As manpower and budgets shrink, time and staffing become paramount. If there is a quick process for telephonic warrants for blood searches, then why would an agency not also seek to use it for other acts such as a search of a residence, a strip search, etc.? This process could gradually become the norm. And while that many sound good, it may also result in oversight issues and abuse of process as the safeguards that currently exist might disappear or be greatly diminished. Currently few search warrants get dismissed for insufficiency. If we cut out the review process of the supervisor and the prosecutor, and go straight to a streamlined phone call in most every case, it is very likely that problems and even egregious acts will occur.

And, as for CA, this ruling will - for the time being - nearly cripple certain prosecutions until the legislature crafts new legislation to allow for drug and alcohol search warrants in the blood. Will it have a huge impact? I don't know. I suppose it all depends on how fast the drug and DUI crowd hears the word that if they just shut up, don't cooperate, and refuse everything that they will be able to go right on endangering the public with impunity. It is THAT possibility which scares me the most.

Now, if the legislature wants to create serious penalties for unlicensed drivers and criminalize failure to submit to a blood or breath test after an arrest, great! But, this is CA where we have narrowly dodged two bills in recent years that would have effectively de-criminalized drug possession (made them all low grade misdemeanors from felonies). The collective wisdom in Sacramento is that given the current legislative makeup this is likely to return, and will be passed by a veto-proof majority in the next year or two. I hope they are wrong. But, that crowd is not all that likely to pass anything that smacks of being pro-prosecution or law enforcement.

 

[betachains]

Sotomayer's opinion was joined by 4 justices, but 3 others also affirmed, so the decision was actually 8-1; i.e., not even close.

As for the practical implications in CA (where I live), I expect a few months of confusion, then arrest/conviction patterns will return to what they are now. How many forced blood draws are done now for misdemeanor DUI'S? What percentage of search warrants are refused by judges? I suspect both numbers to be low.

Also, half the states already forbid most warrantless blood draws. Somehow, they still get the job done.

 

[justalayman]

CdwJava;3163127]Then you are not arguing that prior acts were illegal, only that the act has now been ruled unconstitutional and that future commissions may be actionable as a result, but will almost certainly result in a suppression of the evidence if contrary to the ruling. When you say that the act was ILLEGAL that seems to imply a criminal or tortuous act.

Not sure how to make myself clearer. Sometimes I fail in that regard. I'll have to leave that lay for now.

Yes, it can be manpower intensive and time consuming, but the evidence was not generally disappearing with each passing second. By forcing a streamlining of the process, it is likely that the checks and balances currently built into the front end of the system will gradually disappear. As manpower and budgets shrink, time and staffing become paramount.

again, this is describing the deficiencies in the system. That does not allow one to circumvent the rights of the citizens simply because the system cannot enforce the laws due to such deficiencies. The system must adapt so as to be able to enforce the laws without violating the rights of the citizens.

If there is a quick process for telephonic warrants for blood searches, then why would an agency not also seek to use it for other acts such as a search of a residence, a strip search, etc.? This process could gradually become the norm. And while that many sound good, it may also result in oversight issues and abuse of process as the safeguards that currently exist might disappear or be greatly diminished. Currently few search warrants get dismissed for insufficiency. If we cut out the review process of the supervisor and the prosecutor, and go straight to a streamlined phone call in most every case, it is very likely that problems and even egregious acts will occur.

and hopefully, if the issuing of warrants is not proper as deemed by the Constitution, that process too will be invalidated and hopefully lead to a proper process that does respect the rights of the citizens. As we all know, this is a process and not one of static rules. Got to learn to duck and weave through the valid roadblocks.