Articles Posted in Criminal Defense

When I last wrote I discussed whether a warrant was needed for a breath test. I argued that a warrant was needed based on previous Supreme Court cases. I was happy that one judge agreed with me.

Well, a couple of weeks ago the Supreme Court decided North Dakota v. Birchfeld. They held that a breath test was a search, but that a warrant wasn’t needed. The Court basically said a breath test is not particularly intrusive. They concluded it can be done when someone is arrested as a search incident to that arrest. Again, one judge – Justice Sotomayor – agreed with me, that a warrant should be required.

The Court reaffirmed that a warrant is needed for a blood test. They also held that a state cannot make it a crime to refuse a blood test without a warrant because that would penalize people for asserting Fourth Amendment rights when the person insisted on a warrant. Although urine tests were not at issue, they will probably be treated the same way as blood tests, and a warrant will be required. I still think these rules should apply to breath tests, too.

In 2013 the Supreme Court held in Missouri v. McNeely, 133 S.Ct. 1552 (2013), that a blood draw is a search requiring a warrant or a warrant exception. Since then I’ve been arguing that the same logic applies to a breath test. I based this argument on Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) that held a breath test is a search. Skinner did not address the warrant issue because of special circumstances associated with regulation of the railway industry. Up until now I’ve had little success. Judges are reluctant to change decades of practice, even if that practice was unconstitutional. Last week I finally won a round in this fight.

In last week’s case my client was given field tests and then asked to voluntarily come down and take a breath test. He asked the natural question, “What if I don’t want to?” The officer told him that he would be arrested and taken to jail if he didn’t agree to take the test. If he agreed to take the test the officer promised to bring him home and not to jail, regardless of the test result. I moved to suppress the breath test for a lack of a warrant or warrant exception.

In a motion alleging a warrantless search, the state has the burden of proving there was a valid warrant exception. Recognized warrant exceptions are search incident to arrest, consent, exigent circumstances and a few others. The Supreme Court, in Arizona v. Gant, 129 S.Ct. 1710 (2009), limited the search incident to arrest exception to the extent that it cannot apply to breath or blood tests. Exigent circumstances are situations where it is extremely impractical for the officer to obtain a warrant in time to conduct a meaningful search, or some sort of emergency. In my case the state did not argue exigent circumstances. It is unlikely that any such argument would have been successful. Instead they focused on consent.

The Maine Association of Criminal Defense Lawyers is putting on a seminar to train lawyers to defend DUI cases.  It will be held at the Hilton Garden Inn, Freeport, Maine, on August 22, 2014.  (In Maine that is OUI – Operating Under the Influence.)  I have the honor to be one of the instructors.  I am teaching Field Sobriety Testing.  Other speakers are Jan Semenoff, Matt Nichols, John Webb and Ed Folsom.

Jan Semenoff is coming from Saskatoon, Saskatchewan.  He was a police officer for the City of Saskatoon Police Department where he was specially trained in breath testing.  During his service with the SPD, and after retiring from that department, he was a factory trained breath test technician on many models of breath testing device.  He has published papers on breath testing and other subjects related to alcohol the science of alcohol measurement.  He is recognized as one of North America’s leading experts on the subject of breath testing.  On a personal note,  Jan trained me on the Intoxilyzer 8000, the machine used by police in Maine.  Jan will spend two hours training Maine lawyers about the 8000.

I went to law school with Matt Nichols.  That was a long time ago.  Matt is one of the very top OUI trial lawyers in Maine.  He is perhaps the most innovative OUI defense lawyer I know.  Not surprisingly, Matt will teach Creative OUI Defenses.  His approaches to exposing the attempts of the Intoxilyzer 8000 manufacturers to hide information about the machine make for some of the best and most entertaining cross-examination.  After the witness says “i don’t know” for the fifteenth or twentieth time, jurors start to catch on that the machine may not be as good as the State of Maine and the manufacturer claim.

The United States has the sorry distinction of locking up a higher percentage of its citizens than any other country.  It is not that Americans break the law more than people in other countries.  We don’t. The problem lies with the idea that putting people in prison is the cure for every act we believe to be criminal.  The idea that being “tough on crime” by locking up people will make crime go away is ingrained in our politicians’ minds.  That solution to crime utterly failed to win the war on drugs.  The only thing it got us is a huge prison population at the cost of billions of dollars each year to catch, prosecute and warehouse Americans.  The vast majority of these prisoners are non-violent offenders who pose little danger to the community.

Two sets of drug laws (federal sentencing laws) contributed the most to this problem of imprisoning too many of our non-violent fellow citizens.  The first was a set of mandatory minimum drug laws based on drug quantity.  The second was the Federal Sentencing Guidelines.

Congress passed laws creating mandatory minimum sentences for drug crimes based on drug quantity.  Before 2011 a person who sold 500 grams or more of cocaine powder faced a mandatory minimum sentence of 5 years in prison.  Five kilograms resulted in a 10 year mandatory minimum.  And these drug amounts were not based on the amount of drugs the person had at any one time.  The Guidelines added up the amount of drugs sold over time.  A one time sale of 500 grams of coke or the sale of two grams each week for a year both resulted in a 5-year minimum sentence.  Twenty years of these sentences did nothing to reduce the traffic in drugs.  Worse, these laws were both arbitrary and racially discriminatory.

In DUI cases police routinely order people to take breath tests. For years no one gave much thought to whether such orders are legal. The 2013 case of Missouri v. McNeely may be changing that situation.

In McNeely the Supreme Court held that a warrant was required before a blood test could be taken against a person’s will. The argument went that sticking a needle into someone’s arm and taking their blood to analyze it invades a person’s privacy. Protecting personal privacy from government intrusion is the purpose of the Fourth Amendment. That amendment says that individuals are protected from government intrusion “in their persons, houses, papers and effects” from unreasonable searches.

As a general rule a search is unreasonable unless the police first obtain a warrant for that search.  The warrant must be based upon probable cause to believe the search will turn up evidence of criminal activity. A warrant is in order from a judge or magistrate that says there is enough evidence to believe a search will produce evidence of a crime, and therefore a search is allowed. When police search without a warrant it is presumed to be an unreasonable search unless it fits into a recognized exception to the warrant requirement.

A little more than a year ago the United States Supreme Court decided a case that is having a significant effect on DUI cases around the country. In April, 2013, the Court decided the case of Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). This post, and several posts to come, will look at McNeely and discuss its effect on DUI cases. This post will provide a background to that discussion.

Police in the state of Missouri stopped Mr. McNeely because he was driving erratically. After field sobriety tests he was arrested for DUI. The officer took him to the station for a breath test. Mr. McNeely refused that test. The officer then took him to the hospital where he was given a blood test, despite his refusals. The officer did not obtain a warrant for the blood test. Mr. McNeely’s blood test result was over the legal limit.

Mr. McNeely’s lawyer filed a motion to suppress the blood test result. He argued in that motion that the police were required to get a warrant to draw Mr. McNeely’s blood, before they drew his blood. Because they did not obtain a warrant that blood draw violated the Fourth Amendment to the United States Constitution. Mr. McNeely’s lawyer asked the court to exclude the test because of that constitutional violation.

Much to my surprise the Maine Legislature voted overwhelmingly to reject extending the lookback for OUI’s from ten years to fifteen.  In my last post I agreed with the prosecutors that a better idea was to make it a felony for anyone who gets an OUI, and who previously had an OUI conviction.  Extending the lookback would not affect many problem drinkers.  Treating prior DUI felons as felons for the next DUI limits the extended lookback to people who have demonstrated themselves to be a danger to others.

I suspect our representatives also looked at the added cost of jailing people and decided it was a bad bargain.  The state budget is a mess and there is little money for jailing more people.

The State of Maine is debating whether to increase the look back time for DUI convictions. The look back is the amount of time that must pass after a DUI before the next one is considered a first offense. The present look back in Maine is 10 years. That means if you get a DUI today, and you had one within the last 10 years, this one counts as a second offense.

The legislature is considering whether to extend the look back to 15 years. The justification offered by the legislator who submitted the bill is that people who have DUI’s should be treated very harshly if there is ever a subsequent offense. He did not offer any information to suggest that there was a problem by limiting the look back to 10 years. It seems he pulled the number out of a hat.

Another approach, one urged by the District Attorneys, is that the normal look back for misdemeanor DUI’s should remain in 10 years. But anyone convicted of a felony DUI (DUI with serious bodily injury or death, or a third or subsequent offense DUI) should have every subsequent DUI treated as a felony.

Many people I talk to think a DUI is something any lawyer can handle.  As an experienced DUI specialist lawyer I can tell you that is not true.  I have many hours of specialized training that most lawyers do not have.  The following case is a good example of why a specialist is needed.

The case is State v. Soucy, 2012 ME 16. Mr. Soucy was speeding and was upset after a fight with his girlfriend.  He was stopped by police and given field sobriety tests.  He had balance troubles on the balance tests and the HGN test showed jerking of his eyes.  He was arrested and blew a 0.00 on the Intoxilyzer.  The cop asked him if he took medications and he told him he took oxycodone and hydrocodone.  Mr. Soucy told police he wasn’t impaired by drugs, just tired and sick with the flu.  They called in a Drug Recognition Technician to perform a DRE test.

A DRE test is a battery of tests and examinations.  The technician examines the subjects eyes, blood pressure, muscle tone, balance, temperature and and other things.  (There is a lot of doubt in the scientific world about the reliability of these tests, but that is for another blog.)  The test showed pinprick pupils, HGN, rigid muscles and bad balance.

Many people do not realize that a DUI or other misdemeanor conviction in the United States can bar you from entering Canada. Folks who head to Canada on vacation are sometimes turned away at the border because a member the family has a DUI conviction. People on business trips, or hunting and fishing trips face the same problem.

If you have a conviction for DUI, operating after license suspension, leaving the scene of an accident, dangerous driving or many other misdemeanor charges, you are “inadmissible” under Canadian immigration law. If that is your only criminal conviction in your life you are inadmissible for 10 years. After that you are deemed rehabilitated.

If you have two or more convictions you must apply for rehabilitation with the Canadian government. It is a pretty involved process that requires you to submit a lot of documents and a fee. Processing takes up to a year. You cannot apply for rehabilitation until five years after the last action flowing from the second conviction.