A Warrant for a DWI?

It's rare when the US Supreme Court makes a bright line legal test for anything and they continued this with the holding in Missouri v.Mcneely. However, they certainly did not give police a green light to force blood from those arrested for DWI without obtaining a warrant. Instead they used the old standby "totality of the circumstances" test and held that police officers should obtain a warrant if it could be reasonably obtained by a judicial official.

Any criminal defense lawyer in Mecklenburg County is very familiar with totality  of the circumstances test. It is a staple item in Fourth Amendment procedure. Defense attorneys and District Attorney's will now essentially be forced to 'Monday morning quarterback' the police officers decisions not to get a warrant based on the totality of the circumstances of each case.

Ten years ago, I believe prosecutors would be on the winning side of this argument that obtaining a warrant was not feasible. When I was Deputy District Attorney, I remember Narcotic Detectives telling me how they would call  the resident judge at home in the middle of the night to get warrants signed. In a DWI case, the exigency of the alcohol level  dissipating in a person arrested would not justify making a trip across town to get a warrant approved.  That would simply take too much time.

Technology has improved police procedure tremendously. Or, at least it should.

Now in world of preprinted forms, magistrates stationed at jail facility 24 hours a day and general accessibility of everyone, the prosecutor's argument that "it would of taken too much time to get a warrant" argument will be an uphill battle in a courtroom. 

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Russell Brand- Give It Up

Spend a day in District or Superior Criminal Court in Mecklenburg County and you will observe hundreds of  drug and drug related cases. You have actual drug charges- possession of drug paraphernalia, possession of cocaine or possession of marijuana to name a few.  Prescription drug cases are also increasing in the court system. The Department of Justice reported a 400% increase in prescription drug abuse over a five year period. Drugs are everywhere in criminal courts. Drug courts have proved to be a successful alternative.

Addiction is cruel disease. When I started as a Deputy District Attorney, I would handle drug cases on a daily basis. Whether it was the straight drug charge or someone trying to pawn some stolen goods to pay for their drug habit, drugs affected so many cases. It wasn't until I sat in Drug Court for several months did I begin to understand the choking power of addiction on a person. The threat of going to jail does not usually deter an addict. Fear of jail does not cure addiction. Fear can feed addiction. 

Russell Brand is an addict. He recently wrote a piece for his blog called Give It Up that demonstrated the power of addiction. Here is an excerpt: 

I cannot accurately convey to you the efficiency of heroin in neutralizing pain. It transforms a tight, white fist into a gentle, brown wave...
The mentality and behavior of drug addicts and alcoholics is wholly irrational until you understand that they are completely powerless over their addiction and unless they have structured help, they have no help. 

 Brand has every amenity available to him to assist the urge to use. Yet his story demonstrates the demon of addiction he fights daily. He accurately describes how unappealing and burdensome a drug addict is: 

It is difficult to feel sympathy for these people. It is difficult to regard some bawdy drunk and see them as sick and powerless. It is difficult to suffer the selfishness of a drug addict who will lie to you and steal from you and forgive them and offer them help. Can there be any other disease that renders its victims so unappealing?

The purpose of this post is not to advocate rehabilitation over jail.  I have written on that before. The purpose of this post is simply to highlight how powerful addiction is. If it was only as simple as putting a person in jail so they can "dry out." Does an addict really every dry out? I wonder how Russell Brand would answer that questions.

Click here to read Give it UP.

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DWI/DUI- The Details Matter

A criminal defense attorney in Mecklenburg County often  will receive a  phone call from someone recently arrested for DWI/DUI. A common question asked is whether there is any chance the case will just get "thrown out".  The simple answer is no- cases are not thrown out. Rather, a good criminal defense attorney will use their knowledge and skill to chip away at a case and get specific items of evidence excluded or suppressed. Successful evidence blocking can lead to a not guilty or a dramatically lesser sentence.

I  recently had success at suppressing the result of a breath test given by a client arrested for DWI in Mecklenburg County. Although at first glance the client's breath result seemed correct- the officer affirmed he observed the client for 15 minutes prior to the test, the results were within .02 of each other and each sample was given within the statutory time. However, calibration logs I pulled from the North Carolina Department of Health and Human services website showed the machine was not calibrated within the statutory time. My motion to suppress was granted.

I handled another case where my client submitted to a blood test after arrested for DWI. This test was taken at a hospital and the blood was subsequently examined by the Mecklenburg County Crime Lab. The result was significantly over .15. However, I found an issue with the chain of custody. After the appropriate motion was run, this evidence was also suppressed.

Success with DWI/DUI's  in Mecklenburg County require a careful review of the evidence. This evidence is often found in small details that effective criminal defense attorneys take the time to look into.

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Time to Swab?

North Carolina law requires the collection  of a person's DNA upon the arrest of certain offenses, including those arrested for criminal charges in Mecklenburg County. This is upon arrest and not conviction. You can read the North Carolina statute here. 

The Supreme Court heard oral arguments this week surrounding a similar law in Maryland. Click here for a summary of the case. Justice Alito acknowledged the importance of this case:

"I think this is perhaps the most important criminal procedure case that this Court has heard in decades..This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy."

A minimal intrusion on personal privacy isn't necessarily the concern. Unlike the case where a catheter was used to test for marijuana use, having the inside of your mouth swabbed is not much of an intrusion. The intrusion is the government having a person's DNA sample before being convicted of any crime. Justice Scalia  had an interesting point after hearing that Maryland obtained 42 convictions based upon samples taken from people arrested in their state: 

"Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing."

 It is an interesting term for the Supreme Court and the Fourth Amendment. Between this case and the Court  hearing whether blood draws can be taken without a warrant, the Fourth Amendment is being challenged  this year.

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Waiting For Missouri

Many are anxiously awaiting the ruling of Missouri v. McNeely- the well known US Supreme Court case that will decide whether police officers can obtain a blood sample from a person arrested for a DWI without getting a warrant.  I have blogged about this case, but the fundamental question is whether a person should be forced to have their blood drawn solely based on a police officer's discretion. Should a police officer be required to go to a judge and obtain a warrant before blood can be drawn? You can read a good summary of the arguments presented to the US Supreme Court here.

Those who are opposed to giving police officers this much discretion make strong arguments; In the Simple Justice Post "And You Think A Needle In Your Arm Is Bad," Scott Greenfield highlights a case where police officers directed hospital staff to insert a catheter in order to obtain a urine sample for a young man who was arrested for suspicion of using Marijuana.

Greenfield also argues that the outcome of Missouri v. McNeely will not prevent a drunk driver from making the decision to drive a vehicle:

Mind you, the justification for someone sticking a needle in an arm is only tenuously connected with saving a life, since it does nothing to stop a drunk driver, but merely advances the collection of evidence of guilt after a stop has been made. The sole benefit is conviction, which arguably will result in a sentence that will have a deterrent effect.  Whether that's so is a matter of religion.

In Places No One Should Ever Go, Greenfield addresses the discretion given to police officers in a different case:

As a society, we give an extraordinary amount of authority to a handful of people and expect them to demonstrate an iota of sound judgment before using force against us.  What we cannot allow, after the fact, is to ask over and over, what the hell were they thinking.  Does it really require much thought for this cop, or his enabling judge, to have them realize that the forcible insertion of a catheter to obtain better evidence is just plain sick?

And naturally, having failed to obtain the evidence of Lockard's drunkenness after execution of this disgusting and disgraceful conduct, they were constrained to charge him with obstruction of justice.  Maybe because he didn't smile as they shoved the catheter into a place where no one should ever go.

Most Supreme Court decisions have very little to do with the case itself. For many, Missouri v. McNeely has nothing to do with drunk driving. The decision in McNeely is only the starting point.
What many are concerned with is the aftermath.


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DWI/DUI- The Race to the Chemical Test

The Charlotte Observer published an article yesterday titled Police: New breath-test process leads to more DWI guilty pleas. The article describes how police officers will now have the ability to conduct a breath test prior to a person being booked into Mecklenburg County Jail for a DWI/DUI. The article concludes that this new procedure could lead to more DWI guilty pleas in Mecklenburg County District Court. However, the article does not address other vital facts that comprise a DWI/DUI.

The current practice requires the police officer to basically book the arrestee into jail prior to asking him/her to submit to a breath test. Currently, as much as one to two hours can pass before a person is asked to submit to a chemical test, specifically a blood or breath test. Why, some ask, is there such a priority to obtain a breath/blood sample?

If you are charged with a DWI/DUI in Mecklenburg County, one of the primary concerns both the prosecutor and the criminal defense attorney share is the result of the breath/blood result. A prosecutor wants that breath or blood result as close to the time of driving as possible; arguably, the closer the test is to the time of driving, the easier it is to prove they were driving over the legal limit.

The law in North Carolina requires the State prove a person drove a vehicle after consuming sufficient alcohol in which they had, at any relevant time after the driving, an alcohol concentration of .08 or more. However, North Carolina does not require, as some states do, the prosecutor to show that the person drove at .08 or more at the time of driving, only that the person drove after having consumed. In States that do require .08 at time of driving, the race to the chemical test is important. However, in Mecklenburg County, how the officer conducts his DWI/DUI investigation can be even more important. The news story at the end of this post demonstrates this point.

Many officers are very quick to rely on breath and blood results. There is a breath test that is performed in the field as the officer is conducting his investigation. However, to the surprise of many, the result of that test is not admissible at trial. Many former clients have stated the police officer told them that they were required to submit to the test in the field. This is not true; the article alludes to this in paragraph 8.

In addition, the law requires the officer have probable cause to arrest a person before they are asked to submit to a blood or breath test. What an officer observes and reports in the field is just as important as the breath result. Law enforcement can have all the technology available to them. A jury will always want to know what the officer saw in the field.

This story was in the news over the weekend. It demonstrates that DWI cases are rarely straightforward. Regardless of the ultimate time between arrest and chemical test, DWI/DUI's are not just about alcohol results. A proper investigation and the credibility of officers involved should never be overlooked.

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But They Said They Did It

60 minutes recently had a valuable segment on false confessions. When a crime occurs, both the prosecutors and the defense attorney want to know whether the suspect made any statements implicating themselves. Even the public wants to know. The public finds comfort in knowing "Oh, they caught the guy." How many times have you heard a news story reporting a crime that ends with "X was arrested and admitted to being involved." Case closed? Crime solved? Not quite..

Many years ago as a new prosecutor at the District Attorney's Office in California, I was approached by a defense attorney and asked to dismiss a case. I remember telling the defense attorney that the defendant confessed to the crime. My comment started a long conversation between myself and a veteran defense attorney about false confessions. I don't remember the outcome of that particular case, but I took a lot away from that conversation, including having an open mind that confessions could be false.

People admit to things they didn't do. They do it for a variety of reasons- youth, immaturity, pressure and often from promises from law enforcement that they will be released from custody. It illustrates the power of law enforcement and the problems with our criminal justice system. No one disagrees that people must be held accountable for what they have done- let's just hold the correct person accountable. Just ask one of the "Central Park Five."


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