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

Change would let Missouri police hold suspects twice as long without charges.

When a police officer arrests a person for any criminal offense–whether a misdemeanor or felony–the suspect can be held in jail for 24 hours while police and prosecutors decide whether the person will be charged with a crime. At the end of the 24 hours, the prosecutor must either file a charge or the person must be released.

State Sen. Jack Goodman is considering filing a bill that would increase the 24-hour detention time to 48 hours. Click for  Story: Bill would give prosecutors extra 24 hours to file charges

When I was a prosecutor someone was always trying to get this time expanded. A few years ago the time limit for holding uncharged suspects was increased from 20 hours to 24 hours. Four more hours. Not a real big deal, but it meant having to do less math, so I was for it.

The trouble is that many persons that are arrested get released at the end of 24 hours because there is no case against them or the prosecutor just wants to take a week or two to consider the evidence. This change would mean that a lot of people–who may never be convicted of anything–will be spending most of the weekend in jail.

As far as helping the police and prosecutors, this new law would better allow them to enjoy their evenings and weekends. Sometimes an officer makes an arrest near the end of his shift and he might have to stay late to put together the paperwork for the prosecutor.  If we double the time uncharged suspects could be held, the reports could be completed at a far more leisurely pace.

The truth is that this bill is unnecessary. Twenty-four hours is plenty of time to put together criminal charges without anyone working up a sweat. If police don’t have enough evidence to file charges, they ought not be arresting anyone. That is how it works and it works fine.

While this change not essential, it would help police, prosecutors and judges protect their times of rest and relaxation. I like my free time as much as the next guy, but it’s unfair to the prisoner who sits–unconvicted & uncharged–waiting for someone to read his case and decide whether charges will be filed.


Grand jury is a double-edged sword

Jefferson City Criminal Defense LawyerHow does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.

A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.

Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.

The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.

Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.

Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales  last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.

The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

 

New law makes sex offenders hunker down for Halloween

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

  • avoid all Halloween-related contact with children
  • remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
  • post a sign stating, “No candy or treats at this residence”, and
  • leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.


Missouri Prosecutors join Obama “truth squad”

Who is the most dangerous when they abuse power?  Police? Prosecutors? Judges?

Police work under many rules. If they do not follow the rules they eventually get caught. They can be dangerous to some individuals, but unless the judge and prosecutor join them, the potential for abuse is limited in both time and scope.

Judges are probably the least dangerous cog in the machine. They cannot bring charges against anyone. They can only affect cases that are brought before them. If the prosecutor doesn’t like the way they do business, he can kick them off the case. If the judge does something wrong in the case, a conviction can be reviewed and overturned by an appeals court.

prosecutorNow to the prosecutor.  When it comes to charging criminals with a crime he operates with few restraints and with absolute immunity. His power extends to every person who enters his jurisdiction.  He can charge anyone with any state crime if just one person is willing to make a statement that the accused probably did something that could be considered a crime. This is all it takes to put the accused behind bars, where they may–or may not–get out on bond.

Months may pass before the accused gets to see the evidence against him at his preliminary hearing. And if the charge is baseless, a judge will finally dismiss the charge. By now, the poor guy has probably lost his job, maybe his house, but hopefully not his family.

But it can still go on. If the prosecutor wants to play out the bad hand, he can bring the accused person’s enemy before a grand jury to get an indictment (instead of having a judge decide at a preliminary hearing).

There is a saying that if the government wanted to, it could indict a ham sandwich. That doesn’t mean grand juries are stupid, just that that they see and hear only what the prosecutor wants them to see and hear. They seldom indict (or refuse to indict) unless that is what the prosecutor wants.

So the prosecutor can get the accused indicted on baseless charges and the accused sits in jail for many more months. When the trial date arrives he can either dismiss the charge at the last minute or–what the heck–let an assistant prosecutor try and lose the case. They need the practice anyway.

This is why a prosecutor can be so dangerous. It’s the reason why good prosecutors are very careful about their power. And why people should be beware the prosecutor who is partisan, or even casual, about their duties. There is nothing casual about it.

Now we have the disturbing news story over the weeend that two of Missouri’s top prosecutors have joined the Barack Obama “truth squad.” St. Louis City and County prosecutors Jennifer Joyce and Bob McCullough (and others) have pledged to react swiftly to unfair attacks on Obama and to what they consider ethical violations by Obama opponents. I’m not trying offend to Democrats here, because I’d be no more surprised, and just as offended, if it were the McCain “truth squad”.

Watch the video and see what you think. Technically, they haven’t crossed any legal line. It’s kind of like offending the King: once you know what he wants, only a fool does otherwise.



Needless to say, such intimidation tactics–harmless in the mouths of bloggers–cannot be ignored when threatened by prosecutors. I consider such political involvement by prosecutors inexcusable conduct in a job that has no business involving itself in partisan politics. It’s bad enough that prosecutors must be elected in partisan contests.

I notice that the governor issued a press release condemning the “police-state tactics” of these officials.  Even so, if you are in the east end of the state, don’t look for the  governor to save you if a prosecutor decides you may have been unfair in a way that they consider criminal. The real purpose, of course, is not to prosecute opponents, but simply to shut them up.


Plea bargains are often misunderstood

Jefferson City criminal defense lawyerSometimes we read opinions in the media or online–and knowing just what we have been told–we may tend to accept the viewpoints expressed. The great exception, however, is when we happen to have inside information on the story. Suddenly we understand how limited the public perception can be. We see how the criticism does not conform to the reality. Now, if WE see the defects when we DO know the score, shouldn’t that engender some skepticism (and humility) in those cases when we do not?

The news this week was that Eric Feltner (former chief of staff for Lt. Gov. Peter Kinder) pled guilty to the misdemeanor of “displaying sexually explicit materials.” He had originally been charged with two misdemeanor counts of attempting to provide pornography to a minor.

The court–following the plea agreement between the defendant and the prosecutor–sentenced Feltner to 60 days Jail, suspended the sentence and put him on 2 years probation on the condition that Feltner complete 100 hours community service, and that Feltner not use the internet except for business purposes. Feltner must now register as a sex offender in the county where he lives (for at least the next ten years).

Internet blogs and comments are steaming with uninformed rants, such as in this article from the political blog FiredupMissouri: Cole Co. Prosecutor Mark Richardson Continues to Coddle Republican Sex Offenders

FiredUp’s partisan attack on the prosecution declared the result “sickening,” demonstrating FiredUp’s superficial understanding of the criminal justice system. The blogger, who uses the moniker “Howard Beale,” complained that Richardson delayed a year before the filing of charges. Beale had earlier complained that felony charges–not misdemeanor–should have been filed. And he complained that the sentence was too lenient.  Such criticism, coming from an outsider, seems unfair.

A few points:

  • Taking a year to file the charge: If such a delay suggests anything, it’s that this case was not strong to begin with. It sounds like the prosecutor worked it for a year–and with the statute of limitations about to run out–he filed the best case he had. This is totally standard operating procedure.
  • Not filing felony charges: How anyone could level this charge without reading all the reports is, to me, a mystery. A complete total mystery.
  • The sentence was too lenient: Everybody’s an expert on this? Right? That depends on the evidence. This misdemeanor charge is not minor-related. The initial accusations were, but the law that Feltner admitted violating makes no reference to any victim (of any age). If the evidence was weak, the prosecutor may have believed this plea bargain was the best result he could get, considering the possibility of a not guilty verdict.

If he thought the accused was a future danger, he may have believed it more important to get this fellow into the record books. Two considerations may have been in play:

  1. Feltner must now register as a sex offender. His neighbors will be able to track him.
  2. Although this was a misdemeanor, any second offense will be a felonyClick here to read the statute.

The prosecutor (like his critics) may not have been satisfied with this result, but decided that half a loaf was better than none. I don’t know myself, but without more, I’d give him the benefit of the doubt.

Come back with a warrant

Jury Nullification – The power to do what is right. Part 3

Jefferson City Criminal lawyerWe have seen that juries can render a “not guilty” verdict even where the evidence clearly shows the defendant did what he is accused of doing. Missouri cases have seldom spoken of this issue. Thirty years ago, the Missouri Supreme Court acknowledged jury nullification: “While courts recognize that jury nullification may occur from time to time, the practice is not encouraged.” State v. Hunter (Mo. banc 1979).

This, however, misses the point. No one suggests that juries should be encouraged to render verdicts inconsistent with the law. The question is whether they should be informed of this power and instructed in its use. Such independent juries have been the leading edge of political change.

Before the American civil war, it was the refusal of northern juries to enforce the Fugitive Slave Act of 1850 that moved the nation toward war and the abolition of slavery. Later, refusal of juries to enforce Prohibition led to the 21st Amendment. Whenever the government gets out of step with the people, the citizens have the power to fight back from the safety of the jury box.

Still, the courts are uncomfortable with the idea. Some will acknowledge that acquittal by jury nullification can be beneficial in certain situations, but they pretend to be terrified by the prospect of the jury going the other way. What if the jury doesn’t like the defendant and convicts him when he didn’t actually break the law? There are a couple reasons why this would not be a problem in actual practice:

  1. The courts would only instruct the jury about their right to judge the law (as well as facts) if the defendant requested that instruction. That way it would not be used by the state to falsely convict a defendant; and
  2. Unlike an acquittal (which can neither be reversed, nor the case re-tried) an illegal conviction could be set aside by the trial judge, and if not by the judge, then by the court of appeals.

With such protections in place, jury nullification is not the double-edged sword as some would suggest. It could only be used to acquit when a jury believed that the law–as given by the court–would cause an unjust, unfair result.

Another problem with the current system is that it sometimes creates an intolerable dilemma for jurors who must decide between following orders and following their conscience. Some argue that a juror—in taking his oath—commits perjury when he later delivers a “not guilty” verdict in spite of proof beyond a reasonable doubt. This is untrue for two reasons:

  • First of all, the jurors’ oath says nothing about following the court’s instructions. The oath states that the juror will “truly try the issues in this case and render a true verdict according to the law and the evidence.” The juror would probably believe this to be the equivalent of promising: “I’ll do the best I can.”
  • Second, even if the oath clearly demanded that the jurors follow the court’s instructions to the letter, any reasonable juror would assume that the law (as given by the court) will be fair, and would be applied in a fair way.

No juror imagines that his government would put him in a position where his oath cannot be fulfilled in good conscience. If the juror intended to follow the law at the time he took his oath—and later discovered that he could not—there can be no perjury.

The idea of an independent jury goes back before the Magna Carta. When government crosses the line, it is a great thing that twelve fellow citizens can step in and tell the state it has gone too far. If it happens just once, it saves just one person. If it happens over and over, even bigger things happen.

For more information on the importance of informed, independent juries:

Verdicts Of Conscience: Nullification And The Modern Jury Trial

Fully Informed Jury Association

“Whizzinator” makes passing drug test a felony

IconicA companion statute to Missouri’s forgery statute is section 570.100: “Possession of a forging instrumentality” which makes it a crime to possess anything for the purpose of committing forgery. Like forgery itself, possession of a forging instrumentality is a class C felony.There was once a search warrant issued to search a residence and during the search the police turned up a gadget called the “Whizzinator” in the suspect’s dresser drawer.

The “Whizzinator” is worn inside the trousers and is constructed so as to be able to deliver a drug-free urine sample at body temperature. It’s claim to fame, however, is that The “Whizzinator” can fill a specimen jar under the watchful eye of a probation officer without the deception being discovered.

TestThe Whizzinator comes in a rainbow of colors: White, Tan, Brown, Black and Latino. I’m not kidding.

You just load up with certified, drug-free, re-hydrated, simulated urine, activate the included heater pack and strap this baby on.

You are ready for the drug test.

So Back to the story . . . This fellow who had his house searched was already was on probation and required to take regular drug tests. He made the mistake keeping the Whizzinator at home, in the original package which—of course—had his name and address on the outside. That was all it took. He was charged with the possession of a forging instrumentality.

Possession was not an issue, so his attorney attempted to defend her client by asserting that he did not intend to use it for a forgery; i.e that the Whizzinator had other uses. This seemed unlikely, but after scouring the Whizzinator website, she found an obscure testimonial left by one satisfied customer:

I used the Whizzinator at work and it saved my job, and then later that night, I used it on my wife and it saved my marriage.”

That was good for a laugh, but not much else. And being quite guilty of other, unrelated charges, and on his way back to prison, the poor guy pled guilty for concurrent time. Too bad. It would have been an interesting trial.