Defending
the DWI blood & urine case.
By
Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division
As a criminal defense attorney,
the US Supreme Court McNeely case will help you defend your clients.
The US Supreme Court now requires
warrant before taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013) decided
April 17. I argue this decision also applies to urine cases where consent was
not obtained in writing.
The US Supreme Court discussed how Respondent McNeely
was stopped by a Missouri police officer for speeding and crossing the
centerline. After declining to take a breath test to measure his blood alcohol
concentration (BAC), he was arrested and taken to a nearby hospital for blood
testing. The officer never attempted to secure a search warrant. McNeely
refused to consent to the blood test, but the officer directed a lab technician
to take a sample. McNeely’s BAC tested well above the legal limit, and he was
charged with driving while intoxicated (DWI). He moved to suppress the blood
test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court
agreed, concluding that the exigency exception to the warrant requirement did
not apply because, apart from the fact that McNeely’s blood alcohol was
dissipating, no circumstances suggested that the officer faced an emergency.
The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld
a DWI suspect’s warrantless blood test where the officer “might reasonably have
believed that he was confronted with an emergency, in which the delay necessary
to obtain a warrant, under the circumstances, threatened ‘the destruction of
evidence,’ ” id., at 770. This case, the state court found, involved a
routine DWI investigation where no factors other than the natural dissipation
of blood alcohol suggested that there was an emergency, and, thus, the
nonconsensual warrantless test violated McNeely’s right to be free from
unreasonable searches of his person.
Held: The
judgment is affirmed. 358 S. W. 3d
65, affirmed.
Justice Sotomayor delivered the opinion of the Court
with respect to Parts I, II–A, II–B, and IV, concluding 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.
(a) The
principle that a warrantless search of the person is reasonable only if it
falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the
search involved a compelled physical intrusion beneath McNeely’s skin and into
his veins to obtain a blood sample to use as evidence in a criminal
investigation. One recognized exception “applies when ‘ “the exigencies of
the situation” make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable.’ ” Kentucky v. King, 563
U. S. ___, ___. This Court looks to the totality of circumstances in
determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in
Schmerber, the Court found a warrantless blood test reasonable after
considering all of the facts and circumstances of that case and carefully
basing its holding on those specific facts, including that alcohol levels
decline after drinking stops and that testing was delayed while officers
transported the injured suspect to the hospital and investigated the accident
scene.
(b) The
State nonetheless seeks a per se rule, contending that exigent
circumstances necessarily exist when an officer has probable cause to believe a
person has been driving under the influence of alcohol because BAC evidence is
inherently evanescent. Though a person’s blood alcohol level declines until the
alcohol is eliminated, it does not follow that the Court should depart from
careful case-by-case assessment of exigency. When officers in drunk-driving
investigations can reasonably obtain a warrant before having a blood sample
drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See
McDonald v. United States, 335 U. S. 451. Circumstances may make
obtaining a warrant impractical such that the alcohol’s dissipation will
support an exigency, but that is a reason to decide each case on its facts, as
in Schmerber, not to accept the “considerable overgeneralization” that a
per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different
in critical respects from other destruction-of-evidence cases. Unlike a
situation where, e.g., a suspect has control over easily disposable evidence,
see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally
dissipates in a gradual and relatively predictable manner. Moreover, because an
officer must typically take a DWI suspect to a medical facility and obtain a
trained medical professional’s assistance before having a blood test conducted,
some delay between the time of the arrest or accident and time of the test is
inevitable regardless of whether a warrant is obtained. The State’s rule also
fails to account for advances in the 47 years since Schmerber was decided that
allow for the more expeditious processing of warrant applications, particularly
in contexts like drunk-driving investigations where the evidence supporting
probable cause is simple. The natural dissipation of alcohol in the blood may
support an exigency finding in a specific case, as it did in Schmerber, but it
does not do so categorically.
(c) Because
the State sought a per se rule here, it did not argue that there were exigent
circumstances in this particular case. The arguments and the record thus do not
provide the Court with an adequate framework for a detailed discussion of all
the relevant factors that can be taken into account in determining the
reasonableness of acting without a warrant. It suffices to say that the
metabolization of alcohol in the bloodstream and the ensuing loss of evidence
are among the factors that must be considered in deciding whether a warrant is
required.
Justice Sotomayor, joined by
Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that
other arguments advanced by the State and amici in support of a per se
rule are unpersuasive. Their concern that a case-by-case approach to exigency
will not provide adequate guidance to law enforcement officers may make the
desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of
an overly broad categorical approach in this context. A fact-intensive,
totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g.,
Illinois v. Wardlow, 528 U. S. 119–125. They also contend that
the privacy interest implicated here is minimal. But motorists’ diminished
expectation of privacy does not diminish their privacy interest in preventing a
government agent from piercing their skin. And though a blood test conducted in
a medical setting by trained personnel is less intrusive than other bodily
invasions, this Court has never retreated from its recognition that any
compelled intrusion into the human body implicates significant,
constitutionally protected privacy interests. Finally, the government’s general
interest in combating drunk driving does not justify departing from the warrant
requirement without showing exigent circumstances that make securing a warrant
impractical in a particular case.
Automobiles are areas of privacy
protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J.
Super. 352, 356 (App. Div. 1979).
New Jersey Courts have held that Article 1, Paragraph 7 of the New
Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J.
490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App.
Div. 1985). The burden is on the State
to prove an exception to the warrant requirement showing the need for the
search. State v. Welsh,
84 N.J. 348, at 352.
Understandable, professional curiosity is not sufficient justification
for an intrusion on a constitutionally protected automobile. State v. Patino, 83
N.J. 1 (1980).
The United States Supreme Court has
declared that random stops for license and registration checks violate the
Fourth Amendment prohibition against unreasonable searches. Delaware v. Prouse, 440
U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980).
If there was no indication that motor vehicle laws were violated or that
any other laws were violated, police officers will have violated the
constitutional rights of defendant by
ordering him to exit the vehicle so the
police on the scene could conduct warrantless searches. To help prepare
for the Suppression motion, your Clients
may wish to take photos of stop/accident location. Clients may also wish to prepare a diagram of
the stop/ accident location.
The
following is a portion of my Discovery demand in DWI blood and urine cases.
This and 150 other forms are contained in the ABA Criminal Law Forms
book. Details to purchase are at the end of the discovery demand form. Many of
the ideas are used in the discovery demand written by John Menzel Esq. of NJ which
were included in our seminar handbook “Handling Drug, DWI and Serious Municipal
Court Cases”. Feel free to revise the below discovery demand to meet the
requirements of your state:
“My client is charged with
DWI- which has Consequences of Magnitude.
It has
been brought to my attention that the Lab conducting testing may not have been properly
certified. We also require proof of 2013 certification for the lab.
Items required by defense and expert:
1 all gas chromatograph results and notes
pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986).
2. All results and notes.
3. The operator's manual for all instruments
used to test the substances, pursuant to State v Green 417 NJ Super. 190
(App. Div. 2010) and State v Ford
240 N.J. Super. 44 (App. Div. 1990).
Defense requests all operating procedures, instruction manuals, test
protocols, maintenance logs of the gas chromatograph or equipment used,
performance evaluations, and test result printouts.
4. resume and personnel file of scientist
5. all the 911 and police calls for date
of violation.
6.
copies of the 15 prior DRE reports by any DRE,
7. all DRE reports since this arrest
8. All video for police vehicles or other
police vehicles involved.
9. names and addresses of any persons
whom the prosecuting attorney knows to have relevant evidence or information
including a designation by prosecuting attorney [or you] as to
which of those persons prosecuting attorney [or you] may call as witnesses; and there dates of
birth
DRE
and Field Sobriety testing:
1. training materials for DRUG RECOGNITION
EXPERT/ DRE kept by Police department
2 Many departments
rely on the NHTSA Manuals dealing DRUG RECOGNITION EXPERT/ DRE. If your
department relies on these manuals, please advise in writing the website link
to the specific manual relied on by Police department
3. Documents, which set forth any formal
connection between the Police and the International Association of Chiefs of
Police for DRE or Drug Recognition EXPERT
4 Written
communications from the International Association of Chiefs of Police to Police
department regarding Drug Recognition EXPERT between 1/1/2010 to present
5. Documents,
which set forth Standards for an officer in Police department to become a DRUG
RECOGNITION EXPERT/ DRE.
6. Documents which
set forth procedures for officers in Police department to achieve certification
or recognition as a for DRUG RECOGNITION EXPERT/ DRE.
7. The most recent
training manual for DRUG RECOGNITION EXPERT/ DRE by your department
Regarding
field sobriety testing:
8.
training materials for each any "test"
usually given to individuals under suspicion of DWI including manuals, lesson
plans, texts, tests, and article reprints kept by Police department.
9.
Many departments rely on the NHTSA Manuals
dealing with field sobriety. If your department relies on these manuals, please
advise in writing the website link to the specific manual relied on by Police
department
10.
Documents, which set forth Police department’s
policy on accommodating person’s with physical disabilities who are requested
by police to perform the field sobriety, test of walk and turn
11.
Documents, which set forth Police department’s
policy on accommodating person’s with physical disabilities who are requested
by police to perform the field sobriety, test of finger to nose.
12.
Documents which set forth Police department’s
policy on accommodating person’s with physical disabilities who are requested
by police to perform other field sobriety tests, such as the one legged stand.
13.
Documents, which set forth procedures for
officers in Police department to achieve certification or recognition as a DRE.
14.
The most recent training manual for Field
Sobriety Testing by Police department
15.
The NHTSA Manuals dealing with field sobriety in
Police department.
16.
Documents from NHTSA dealing with field sobriety
tests in Police department
17.
Documents from NJ Division of Highway Traffic
Safety dealing with field sobriety tests in Police department.
18.
11.Documents used by Police department involving
HGN testing
The following
Scientific
and medical tests—Blood and Urine Documents are requested by the experts
a. Documents on each and every analysis, standard, and
control run in the series of runs involving analysis of the blood, including:
(i) N.J.S.A. 2C:35-19a
state forensic laboratory designation;
(ii) documents
generated for laboratory proficiency testing;
(iii) N.J.S.A.
2C:35-19b laboratory employee certificate;
(iv) N.J.S.A. 2C:35-19c
notice of intent to proffer, if any;
(v)
each and every analysis, standard, and control run in the series of runs
involving analysis of the blood, including color tests, chromatographic
results, gas chromatography ["GC"] printouts, mass spectrometer
["MS"] printouts, printouts from any other analytical device ["AD"];
(vi) chemist's notes;
(vii) GC/MS/AD service
records, if any;
(viii) GC/MS/AD calibration curves, mass
spectra and library spectra used to identify each such sample, if any;
(ix) quality control
manual;
(x) testing procedures;
and
(xi) custody documents
for the samples tested.
b. Production of the unused blood for analysis or a statement
why the blood cannot be produced.
c. Production of the swab used to cleanse the area where any
puncture of the skin took place, and an exemplar thereof.
d. Production of blood kit for inspection, and an exemplar
thereof.
e. N.J.S.A. 2A:62A-10 request by law enforcement officer.
f. N.J.S.A. 2A:62A-11 withdrawal certificate.
g. Documents showing Defendant's consent to seizure.
4. Scientific and medical tests--Controlled Substances:
a. Documents on each and every analysis, standard, and control
run in the series of runs involving analysis of the CDS samples, including:
(i) N.J.S.A. 2C:35-19a
state forensic laboratory designation;
(ii) documents
generated for laboratory proficiency testing;
(iii) N.J.S.A.
2C:35-19b laboratory employee certificate;
(iv) N.J.S.A. 2C:35-19c
notice of intent to proffer, if any;
(v)
each and every analysis, standard, and control run in the series of runs
involving analysis of the CDS samples, including color tests, chromatographic
results, gas chromatography ["GC"] printouts, mass spectrometer
["MS"] printouts, printouts from any other analytical device
["AD"];
(vi)
chemist's notes;
(vii) GC/MS/AD service
records, if any;
(viii) GC/MS/AD calibration curves, mass
spectra and library spectra used to identify each such sample, if any;
(ix) quality control
manual;
(x) testing procedures;
and
(xi) custody documents
for the samples tested.
b. Production of the substances and/or chemicals for
analysis or a statement why they cannot be produced.
c. Documents showing Defendant's consent to seizure.
-
Search warrants applied for and all discovery
under Rule 7:5-1b
-
Search warrants obtained
Demand is made that the Prosecutor and
Police provide us with discovery pursuant to Rule 3:13-3, Rule 7:7-7(b) and Brady
v Maryland, 373 U.S. 83 (1963).
Included is demand for dispatcher time records and all CAD REPORTS/
COMPUTER ASSISTED DISPATCH REPORTS.
Please preserve any video and
advise if there is a video of the stop or arrest. If so, fax us the cost for
the video and who the check is payable to.
Please forward to me all documents
which you have in your possession or which are in the possession of any law
enforcement agency or the complainant pertaining to my client. Demand is made
for a speedy trial.
If the Prosecutor has any questions I would be
glad to speak with them.”
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