Missouri DWI – taking blood without a warrant or consent

Missouri Criminal Defense LawyerOUR Cole County prosecutor, Mark Richardson was in the news this week as he briefed law enforcement on the new DWI law that went into effect on August 28, 2010. The story was that the new law opens the door for Missouri police to to take blood from DWI suspects, without a warrant and without consent. The story is here:

Missouri prosecutors: Warrant not needed for blood test in drunken driving cases

Ironically, the legislature almost certainly did not mean to permit warrantless blood draws. In fact, they removed a provision in the new law that expressly allowed the taking of blood without a search warrant. Nevertheless, whenever the legislature tinkers with the laws (and after 190 years of lawmaking, tinkering is about all that is left), we see unintended consequences.

In this case, the legislature removed a few words that (they seemed to think) would allow blood draws with a warrant. Such warrants were already legal, so the only effect of this change was to open the door (inadvertently) to warrantless blood draws.

Under the current Missouri and federal case law, the prosecutors feel that such warrantless blood draws will be upheld as legal. I tend to agree. Richardson said he still advises law officers in his county to seek a warrant until prosecutors find a favorable case to present the issue for the courts to decide.

Eventually, some adventurous prosecutor will get that court decision. Then Cole County prosecutors and police will start using warrantless blood draws. It’s probably smart not to take the lead in doing warrantless blood draws. That is because warrantless blood draws are going to present many problems.

Heatlh care professionals are mostly OK with taking blood under authority of a seach warrant. I should note that search warrants do not force them to do it, but typically–if shown a court order–they will take your blood whether you like it or not. That’s the way it is. So how are warrantless blood draws different?

A warrantless blood draw is done without any court order and against the will of the patient. It’s just a cop asking hospital staff to do it. They have no assurance that his judgment is correct (with all due respect for his 18 weeks of law enforcement training)

Another thing that bothers health care providers is that they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But it’s OK because it is done with expressed–or at least implied–consent of the patient. They are trying to help a patient.

The trouble with taking blood for evidence is that nobody suggests they are treating or helping a patient. He is not a patient. He is a suspect and he is not being given medical treatment. He does not consent.

With all these questions, our hospitals will be worrying about lawsuits. They also have to wonder who will pay for an emergency room nurse’s time when they are called to court to testify.

Plan B

Missouri law enforcement will need a “plan B” when Missouri hospitals get fed up and tell them they don’t need the liability and expense of warrantless blood draws.

Plan B in Cole County will look something like this:

The County will have to hire a phlebotomist to draw blood at night and testify on weekdays. It will not be cheap.

Or they have to have police officers trained as medical professionals.

They must also assume that suspects who refuse to consent to a blood draw may not hold still for one. The courts will not admit the lab results of a warrantless blood draw if it harms the suspect.

It will be necessary to install some kind of special chair in the new jail to immobilize suspects who won’t cooperate.

I understand there are a couple nice ones in the gas chamber of the old penitentiary. No one seems to be using them right now

* * *

On second thought, the game is probably not worth the candle. Perhaps the legislature will just go back and fix the mistake.



Come back with a warrant

Should every vice be a crime?

Saint ThomasNow human law is framed for a number of human beings, the majority of whom are not perfect in virtue.

Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain;

and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained:

thus human law prohibits murder, theft and such like.”

St. Thomas Aquinas,

Treatise on Law in the Summa Theologica


Come back with a warrant

Criminal barbering – scourge or public service?

Missouri Criminal Defense AttorneyNews this week of raids in Florida in an effort to stamp out illegal, criminal haircuts in that state. Here is the story of the round-up and arrest:

This crackdown called to mind my own childhood, where every month, my brothers and I were taken to the private home of a middle-aged lady named Mrs. McAfoos. To see her on the street, you would never imagine that she was a career criminal, a black market barber. You see, she was not licensed, but she was fast and cheap.

On Saturday, the mothers in our neighborhood would pack up their sons to drive over to Mrs. McAfoos’ house. Each of us was frequently warned: “Remember never to tell anyone that she cuts your hair. She can get into trouble.” We never told; and every Saturday Mrs. McAfoos would cut 10 heads an hour, all day long, at fifty cents a head. Great money. No overhead. I doubt that any father in my neighborhood was earning $5/hour in 1964.

Barbering without a license has long been a crime. Today it can get you 15 days in jail. I suspect such criminals still are among us here in Missouri. I also suspect that their customers are happy for the service. Licensed barbers–like all professionals whose monopoly business is protected by the state–may feel differently about the services of black market barbers.

The state doesn’t like them much either. Here is a list of fees that black market barbers do not pay: BARBER FEES

Most people do not appreciate how many occupations are criminal activities unless the practitioner has the time and money to meet state licensing requirements. Click here for the LIST OF OCCUPATIONS.

Naturally, people are concerned about the public welfare and safety. But the costs of such government regulation is seldom a concern: the cost to people who have the skills, but not the education or the money required; and the cost to people who want good, inexpensive services. How can we explain higher rates of electrocution in places with more regulation of electricians? Easily, once we consider that fewer people can afford the higher cost and decide to do-it-themselves.

Should it really be a crime to give a haircut unless your papers are in order? Must we trust the government to say who is a qualified Interior Designer? Does a license guarantee the quality of your Private Investigator.

Regulations can be also be dangerous to a public who thinks that just because a tattoo artist (or doctor or lawyer, for that matter) is licensed by the government, they will do a good job. This a ridiculous assumption. You can get more reliable quality assurance by reading product reviews at Amazon.com.

Anyway. Thanks Mrs. McAfoos for good, fast, cheap haircuts. You were a criminal and I was an accomplice, but the statute of limitations has probably run out by now.

Come back with a warrant