DWI: Should I blow? What if they take my blood anyway?

jefferson city dwi lawyerIn the state of Missouri, if a police officer has probable cause to believe a person has been driving while intoxicated, the officer will arrest the suspect and request that they take a breath test to determine their blood alcohol content. If the suspect refuses to take the test, he loses his driver’s licence for one year.

Many lawyers used to advise their clients that if they were asked to take a breath test, they should refuse the test unless it was a first offense DWI where no personal injuries were involved. This was because a first offense DWI conviction will result in a 90 day suspension of a driver’s license, but anything more serious often involves a revocation of a year (or more) as well as heavier criminal punishments. In those more serious cases, it seemed smart to refuse the test and deny the police the proof of one’s blood alcohol level (which could easily make the difference in getting a conviction).

While prosecutors have long had the power to get a search warrant to take a sample of a suspect’s blood and determine his blood alcohol that way, it was seldom done, except in felony cases. For prosecutors it involved getting themselves and a judge out of bed in the middle of the night to draft and sign a search warrant.

Things have changed over the last several years as the legislature, prosecutors and pressure groups like MADD (Mothers Against Drunk Driving) have pushed for tougher prosecution. These days, obtaining search warrants for blood has become routine in any DWI case where the driver refuses to give a breath test. This development has subjected the suspected drunk driver to a triple whammy if he refuses the breath test:

  • First, the police still get their blood alcohol level to use against the defendant in court (courtesy of the search warrant)
  • Second, the state still revokes his driver’s license for a year because he did–after all–refuse the test (not to mention causing a prosecutor and a judge to get out of bed).
  • Third, the prosecutor gets to tell the jury what a jerk the driver was for refusing the test.

 

Considering this result, one must carefully consider before refusing to take a breath test. I tell clients that if they refuse, the cops will take their blood anyway, and then . . . the triple whammy. I suppose there is always the chance that blood sample will be lost, or otherwise screwed up. Or the test result could get misplaced, but I wouldn’t bet money on any of those things happening.

I should mention that the cops must allow a suspect 20 minutes to call a lawyer for advice on whether to blow–if the suspect asks for it. All my lawyer friends and I may–or may not–be up waiting for that 2:00 a.m. phone call. Needless to say, being intoxicated does not enhance one’s ability in making this difficult decision.

In contemplating this situation, I’ve often wondered what I might do if I were confronted with this dicey choice to take or refuse a breath test. If I refuse, they are going wake a prosecutor, then they are going to wake a judge and then the judge is going to sign a search warrant: basically a court order telling the police officer to take a sample of my blood.

emergencyThere are police officers or police technicians in some places who may be qualified to draw blood, but in my neighborhood, the police are going to take me to the local emergency room. They then show the search warrant to the nurse or technician and tell them to take two tubes of my blood. They obey and everyone is happy except me.

What if–just before the nurse sticks me–I say to her:

“Get away from me. I do not give you consent to take my blood. Take a look at the search warrant. Does that paper personally order you to take my blood, violating my rights and your professional ethics? See if your name is on it.

I am not sick; I’m not injured and I’m not your patient. Without my consent what you are doing is simply a criminal assault. If you do this, I will file a criminal complaint and I am going to sue you, this hospital and its Board of Directors for every nickel you’ve got. That warrant may be Officer Friendly’s get-out-of-jail-card, but you don’t have one. I suggest you call a lawyer.”

Or something like that, even if my speech was a bit slurred. I should note that prosecutors have been taught to insert language into a search warrant that directs some unspecified health care professional to execute the warrant. This seems questionable to me, since Missouri  law requires that a search warrant: 1) be directed to a peace officer; and 2) that it “be executed only by a peace officer.”

I don’t know how all that would work out in the courts, but how many health care professionals would willingly put their licenses and their assets on the line without knowing in advance they were 100% safe in doing what some cop assures them is fine. True enough, they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But that’s OK, because it is done with expressed–or at least implied–consent of the patient. In that situation 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. Instead, he is a prisoner and he is not being given medical treatment. He does not consent; and if he physically resists the draw, the nurse may end up harming him.

Until recently, I’ve wondered what would result if a suspect tried to discourage E.R. personnel in this way. My bet was that health professionals would refuse and that law enforcement would try to bully them into obedience. That is, indeed, what is happening:

Doctors refuse to pump suspect’s stomach despite search warrant

In one recent case, a man was suspected of swallowing cocaine, so police got a judge to sign a search warrant to pump the man’s stomach. The doctors advised the authorities that unless the man consented to the invasive procedure, they could kiss off. The cops had no choice but to mount a five-day vigil around the suspect’s backside, which failed to produce any evidence.

Florida nurse arrested for refusing blood draw

needleIf the police did not manhandle the obstinate doctors in that case, things did not go as well for a mere nurse who applied the same professional ethics. When presented with a search warrant to draw a suspect’s blood she refused and the sheriff’s deputy arrested her and took her to jail on obstruction of justice charges. Although the charges were later dismissed, a federal jury refused to award her damages for the incident.

This issue pits police against health care workers who are being forced to act in ways that conflict with their care-giver role. A similar conflict prevents a physician from assisting in the execution of criminals. Ultimately, this ethical conflict–along with the requirement that a peace officer execute all search warrants–could cause the widespread use of some sort of peace officer paramedic, that is, someone with a badge, but unburdened by any medical ethics.

 

jefferson city criminal lawyer

BIG U.S. Supreme Court decision on Search & Seizure

Missouri Criminal Defense LawyerIn 1981 the U.S. Supreme Court decided, in the case of New York v. Belton, that if an occupant of a motor vehicle was arrested, the police could search the entire passenger compartment of the vehicle to look for weapons or evidence of a crime.

Under the fourth amendment such a search would normally be considered unreasonable and therefore unconstitutional, unless a search warrant was obtained. Even so, the Belton case has been the rule in Missouri ever since and gave the police an absolute right to search the entire passenger compartment of a vehicle once any occupant of that vehicle has been arrested.

Yesterday, the U.S. Supreme Court in Arizona v.  Gant overruled its 28 year old decision in Belton by holding that the police could not search inside a vehicle, once the arrested person was away from the car, unless they had reason to believe that evidence of the crime might be found in the vehicle.

This is a huge decision.  It is huge because a large proportion of drug arrests occur when the police arrest someone for an unrelated offense such as driving while revoked.  Once the person is handcuffed and placed in the patrol car, the police always return to the vehicle and search the passenger compartment thoroughly.

It will be interesting to see how both police and citizens react to this change in the current search and seizure law.

Citizens may be more likely to step out of their vehicle after being pulled over so as to ensure that they will not have their vehicle searched if they were arrested for some reason.

Search and seizureOne wonders if some police might be tempted to change their current practice of getting suspects out of a vehicle before arresting them. It’s hard to imagine a driver being arrested while still seated in his car and then being commanded to sit still while the officer searches the vehicle around him.  If that were permitted, we might see the police running public service announcements telling drivers to remain in their vehicles when stopped, lest they be attacked by police officers who–misunderstanding the person’s actions-believe they are in danger.

I doubt the courts will permit the police to search vehicles by forcing arrested persons to stay inside the vehicle after arrest. If that is the case, then getting out of your car at a traffic stop would be an unnecessary precaution. It might also serve as a signal to police that evidence of a crime may be in the vehicle.

Another thing we may see is an escalation of vehicles being towed by police after an arrest (for safety reasons, of course). Then the police would thoroughly search the vehicle under what is known as the “inventory” exception to the search warrant requirement.  Click here for “inventory search” explanation.  A driver fortunate enough to be pulled over near a legal parking space may want to take advantage of that opportunity and deny police an excuse to tow the car.

We will have to see how this all plays out.


Come back with a warrant

OK. Slowly. Step AWAY from the taco.

A friend  sent me this great example of the 4th amendment in action. The article, titled: “Yo quiero a search warrant: Lawyer succeeds in suppressing evidence found in taco” was originally published in the Missouri Lawyers Weekly.

It seems that Branson police were investigating a fight and were told that someone involved in the fight had gone to the Taco Bell. Police decided it was time to make a run for the border. When they arrived, they found  Johnnie Hoover and a female companion were the only customers.  

The officer asked Hoover if he had any drugs or weapons. At this point–the officer testified–Hoover “looked furtively at a taco lying on the table in front of him”.

Thinking outside the bun, the officer immediately asked Hoover to move away from the table.  He then searched the taco, finding methamphetamine and a glass pipe pipe within.

Mr. Hoover’s lawyer explained that he was able to have the evidence thrown out on the grounds that the taco seemed unlikely to contain a deadly weapon. Nor did the officer have probable cause to search the taco on other grounds.  [See Search warrants in MIssouri, Parts 1-4]

It sounds like the judge was dead on with that decision, the key being that a “furtive look” by itself is not going to be enough for the police to get into your taco. On the other hand, if the officer had sufficient grounds for a search of the taco, he most likely would not have needed a search warrant because the taco–being so “good to go”–might otherwise disappear in the meanwhile.


Search Warrants in Missouri: How it’s done. Part One

The most important thing the U.S. Constitution does is to place limits on governmental power. Despite our government’s failure to respect many of those limits, some are still taken seriously. The fourth amendment is one of those limits:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The bottom line is that no government agent may enter your home and search your stuff without a search warrant. As with everything, there are exceptions to this rule, but I’ll get into those in a later post.

Typically, police will obtain information that evidence of a crime will be found in a private place (home, office, etc.) They take that information to the prosecuting attorney and ask for a search warrant.

An application for the search warrant and a copy of the warrant are drafted. Click here for a blank application, warrant and list of the items seized (called the “return”).

The warrant must set forth the same three things that the fourth amendment demands:

  1. Names of the things to be searched for and seized.
  2. The exact place to be searched.
  3. Sufficient facts to show there is probable cause to believe that the things being looked for will be found at the place specified.

The person (usually the police officer) must swear under oath that he believes these facts to be true. The prosecutor must sign the application. Then the application and search warrant are presented to a judge for signature. Notice that it normally takes three independent persons to agree before a valid search warrant can be issued.

If the warrant is for a home, the police will round up a half-dozen law enforcement officers (or more) and come to the home. Usually, this is done quickly, but the warrant may be good for up to ten days. Unless there are special or urgent circumstances, the police must execute the search warrant during daylight hours and must knock and announce their presence before entering. They may use force, if necessary.

If the police feel threatened, they may handcuff anyone they find inside and may also pat them down for weapons. They may or may not have probable cause to search those persons present.

There is no reason for persons present to AGREE to the search of the home, pockets, purses or whatever, but they must not resist the search. The best thing to do is be polite and say nothing. Say nothing.

When the search is over, the police will leave a copy of the “Return” listing the items seized. This “Return” must be sent to the judge who signed the warrant.

The police may decide they have probable cause to make arrests. This should never be resisted in any way. That simply results in additional charges.

The best thing to do is be polite and say nothing about the search and the items seized. Even giving a home address may provide the evidence necessary to make a criminal charge. In America, one does not have to give evidence against himself.

Keep in mind that a search warrant may be challenged. It may be defective. It may be too old. It may not cover the items seized. The time to question it, however, is not when it is served. It can be challenged later by a criminal defense attorney.

That’s the short version. Next time we’ll go over some important exceptions to the general rule that there can be no searches without a warrant.