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New Supreme Court Ruling May Require Warrants for Blood Draws in DUI Cases in Florida

New Supreme Court Ruling May Require Change to Florida Law

Calling for Warrants for Blood Draws in DUI Cases

A new case decided last month (April 17, 2013) by the Supreme Court of the United States, Missouri v. McNeely, promises to require revisions of current law in the State of Florida and may jeopardize future prosecutions for DUI that rely upon blood alcohol levels based upon analysis of blood draws.

In a previous ruling the Supreme Court, in Schmerber v. California, 384 U.S. 757 (1996), upheld a warrantless blood test of an individual arrested for DUI. The reason being that the officer might reasonably have believed he was confronted with an emergency, and delay of a blood draw threatened destruction of evidence.

The Court in 1966 pointed out that the testimony in the lower court indicated that the percentage of alcohol in an individual’s blood typically decreased by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. They went on to note that since an individual’s alcohol level gradually declines after he stops drinking, a significant delay in testing can negatively affect the probative value of the results. This factor was essential to holding in Schmerber that delay in securing a warrant would threaten the destruction of evidence.

However, in this new ruling, the Court held that the natural metabolization of alcohol in the blood stream does not present a per se exigent circumstance that will justify warrantless blood draws in all drunk driving cases. The Court further held that whether an exigency exists which would allow a warrantless blood draw in a DUI case, is an issue that must be determined on a case by case basis based upon the totality of circumstances.

Given the current state of the ability for police departments to communicate with the judiciary in order to secure warrants, which makes application for same in a short period of time not impracticable, it cannot be said that exigency is presented in all cases which thereby justify warrantless blood tests.

The court noted that in the 47 years since Schmerber was decided there is a more expeditious processing of warrant applications and well over the majority of the states allow police officers to apply for search warrants remotely through using telecommunications and email.

The Court therefore held that in drunk driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case to justify conducting a blood test without a warrant.

Impact on Florida’s Implied Consent Laws

It is difficult to predict all the consequences that this new decision will have on future cases involving motorists driving under the influence. They may be far-reaching; all 50 states have adopted implied consent laws in one form or another, requiring all operators of motor vehicles within their states to consent to blood alcohol content (BAC) testing if they’re arrested or detained on suspicion of a drunk driving offense.

Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings in Florida, for example, and results in an automatic suspension of the driver license for one year. Under Florida’s implied consent law, the following is allowed:

Forceful Withdrawal of Blood: If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.

Unconscious: Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle. (Florida Highway Safety and Motor Vehicles).

That may change with McNeely; in the state of Florida cases involving searches consisting of warrantless blood testing can now be attacked based upon unreasonable search and seizure. For example, people who consented to having their blood drawn could challenge the administration of the test by arguing their consent was not given voluntarily. A good criminal defense lawyer in Florida could challenge its implied consent laws for punishing citizens for exercising their constitutional right to refuse a search not authorized by warrant.

The new ruling suggests that 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.

Sources:

Florida Highway and Safety Motor Vehicles, “Florida DUI and Administrative Suspension Laws.

Harmless Error Blog, “Missouri v. McNeely: Trouble for Implied Consent Laws?”, 22 April 2013.

Missouri v. McNeely, No. 11-1425, 2013 BL 102042 (U.S. Apr. 17, 2013), 17 April 2013.

Online Impersonation, Prank Calls on Steroids?

Last month, two students from Fort Hood County in Texas were arrested on felony charges after they created a fake Facebook account for a fellow student. The two girls attend middle school and were charged based on the rumors, threats and vulgarities that were posted on the fake account, which had a photo of an individual who looked similar to the victim. The profile was active for about a month before it was discovered.

With cyberbullying on the rise, Texas adopted a law in 2009 that makes online impersonation and harassment a felony punishable by up to ten years in prison.  While I don’t condone harassment by any means, this brings to mind the old-school act of making crank calls; only now social media offers a potentially perfect storm for real damages and liability.

At 63 years of age, and considerably past the age where I feel compelled to seek out adventure or thrills (thus minimizing the possibility of stupid behavior – for the most part) and having reached the point in my life where boredom is just another form of recreation, it would be easy to harshly judge teenagers who set up phony Facebook accounts and impersonate others.

Certainly the damage caused by such activity can be harmful, and given the unlimited reach of the Internet, more extensive. However, as I stare at my four-year old grandchild while in the process of playing with my wife’s iPhone “Angry Birds” using her thumbs at a rate approaching the speed of light, it becomes obvious to me that the children of today can exploit social media as easily as we were able to make phony phone calls 50 years ago.

Unquestionably, there are a few more steps involved, perhaps a bit more premeditation, but all-in-all, I tend to believe that in many instances the motivation may be at many times, akin to the driving force that had me at 12 year of age dialing a random number so as to ask a stranger at the other end of the phone “Is your refrigerator running?” and when the response was “Yes” declaring back, “Well don’t you think you oughta go catch it?” Oh well. Times were simpler then. It was a lot harder to hurt people or cause damage. Social media has certainly turned the phony phone call into a weapon of mass destruction.

Source:

Star-Telegram.com, “2 Hood County girls arrested over fake Facebook page,” Alex Branch, 20 July 2012

 

 

Colorado Theater Shooting Shines Light on Age-Old Issue of Legislation Reform

Last week’s horrific Colorado theater shooting is freshly in our minds as we all wonder, what could make someone take such drastic actions?  Quickly blaming gun laws, many people, including those in legislation, are calling for gun legislation reform.  Here’s the question: Do the poor actions of few mean that we should revoke our laws or rights that will affect all of us?

Laws can be promulgated to protect people from wrongdoing, but they are also are made to protect our rights. When tragic incidents happen, people’s first reaction is always to pass laws to ensure that the event never takes place again. Therein lies the problem. When we revoke all of our rights in order to react to danger of a few, we all become less free.  The Colonists wrote the Bill of Rights to protect individuals from their GOVERNMENT!  That’s right – the government.  They know that there was NO tyranny like the mass tyranny that could be inflicted on a people or individual by a powerful central government.

As the old saying goes, “widow and orphan cases make bad law.”

Whether true or not, it is often the case that the first resort to evil and repulsive human behavior is to cry out for a repeal of basic rights.  The law of unintended consequences be dammed!  In that regard I find the quote from “A Man for all seasons” quite instructive:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

More Than Likely Guilty Was Not Enough

criminal-defense-attorney-lawyer-miami-dui-dwi-family-lawI just received several emails from friends and acquaintances who want to know why Casey Anthony was found not guilty and “how could this happen”. Although I have taught criminal procedure and tried numerous murder cases, I am quite sure that my answer won’t satisfy most.

In the first place, I must give the caveat that I did not watch the proceedings from beginning to end nor did I get to review first hand all the exhibits and physical evidence. Obviously, the jury, made up of individuals who care about children was as emotionally ravaged by this case as anybody else. I therefore have to assume that the jury followed the court’s instructions regarding burden of proof and reasonable doubt and felt that although she may be guilty, she had not been proven guilty of first degree murder beyond and to the exclusion of every reasonable doubt.

Hundreds of years ago, our criminal justice system was founded upon the precept that in order to find an individual guilty they must be proven guilty beyond a reasonable doubt. Probable guilt, likely guilt, or being thought to be “more than likely guilty” was not enough. By saddling the State with this very high burden, it was of course, conceivable that in some instances guilty people would go free. But our founding fathers made the conscious decision that individual liberty and justice was so important in a free society and we valued our freedoms so highly, that we would require this higher burden since we would rather see 100 guilty people go free than have 1 innocent person spend a day in jail for a crime he or she did not commit.

criminal-defense-attorney-lawyer-miami-dui-dwi-family-lawIf the crime was that of being a bad mother or despicable human being, or a selfish and self-centered person, the outcome may certainly have been different. However, as she was charged with first degree murder, the State had to prove beyond a reasonable doubt that her mother intentionally killed her. Based upon what I did view on television and in the papers, it was clearly evident that this essential element of the crime could not be proven beyond a reasonable doubt. No matter how hard the State tried to point to Casey’s despicable behavior, after the death.

The truth is, we don’t know how this child died, and although it may have made us feel better seeing the mother punished for her actions, it would not necessarily have been the right verdict. Of course, Casey Anthony will have to live with this for the rest of her life and I for one don’t believe that she has “gotten away” with anything. I am praying for her and her father and mother. I understand why people are upset but I also believe the Caylee is with her Father in Heaven and Casey’s punishment lies ahead of her and is in God’s hands.

In short “nobody really gets away with anything.”

Russell A. Spatz

Counselor and Attorney at Law

http://www.spatzlawfirm.com

rspatz@spatzlawfirm.com

National Drug Control Strategy – 2008

Washington, D.C.— During his weekly radio address, President Bush released the 2008 National Drug Control Strategy. The Strategy outlines progress made in reducing both the supply of and demand for illegal drugs, and highlights challenges that remain.With the release of his first National Drug Control Strategy in 2002, the President set the ambitious goal of cutting drug use among young people by 25 percent over five years. Through a balanced approach that emphasized prevention, education, and treatment, as well as enhanced law enforcement and international cooperation, youth drug use has declined 24 percent since 2001 860,000 fewer young people using drugs today than six years ago. In addition, teen marijuana use is down 25 percent, Ecstasy use has dropped by more than half, and youth use of methamphetamine has plummeted 64 percent.

John Walters, Director of National Drug Control Policy and President Bush’s Drug Czar said, Teen drug abuse is down sharply, and this will provide lasting benefits to our Nation, since we know that most adults who get caught in addiction begin with use as teens. But there are still too many of our friends, our family members, our coworkers and our neighbors who are becoming lost in the maze of addiction. We need to find whatever ways we can to create a turning point in their lives a turning point that leads to recovery.

Bringing attention to the emerging threat of prescription drug abuse, President Bush called for tighter controls on Internet sales of controlled substances. Online pharmacies have increasingly become sources for diversion of prescription drugs, and the President urged Congress to take swift legislative action to put an end to illegal sales of controlled substances on the Internet.

The Ryan Haight Online Pharmacy Consumer Protection Act (S.980), sponsored by Senators Dianne Feinstein (D-CA) and Jeff Sessions (R-AL), would restrict the ability of rogue Internet pharmacies to illegally divert dangerous controlled substance prescription drugs to millions of people even teens without valid prescriptions issued under a legitimate physician’s care. The bill was unanimously approved by the Senate Committee on the Judiciary in September 2007, and awaits consideration by the full Senate.

Prescription drugs provide tremendous benefits to our Nation, said Director Walters, but when misused or abused they can lead to addiction, and worse. We are working with leaders in Congress to modernize our laws to address the problem of rogue online pharmacies’ which skirt around the safeguards of legitimate medical practice and prescriptions. Prescription drug abuse is an area of serious concern, and we are now focusing our Nation’s supply, demand, and prevention policies with the goal of seeing the same reductions that we have achieved for illegal street’ drugs.

http://www.spatzlawfirm.com

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