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Tuesday, April 30, 2013

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. 

Mecklenburg County Criminal Attorney Updates Provided By The Law Office of Carilyn Ibsen PLLC
posted by Carilyn Ibsen at

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