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On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:
For cases where the arrest occurred before April 17, 2014, the day that McNeely
was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.
Section 16-205.1 requires that a police officer have "reasonable grounds" to "detain" the driver and request or compel a test. However, the Court of Appeals has defined "reasonable grounds" as the minimal standard of articulable reasonable suspicion in Motor Vehicle Admin. v. Shepard
, 399 Md. 241, 923 A.2d 100 (2007). Although § 16 205.1 uses the word "detain," do not be fooled, in 99 out of 100 cases "detain" means "arrest." The Court of Appeals has has further held that "reasonable grounds" exist when an officer merely detects the odor of an alcoholic beverage. Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013).
A result of these decisions is that because the requirements of the Fourth Amendment and license suspension hearings are different, officers are given conflicting commands. So while the Fourth Amendment requires the officer to satisfy the higher standard of "probable cause" to make an arrest and conduct a search, the officer is required to arrest somebody based on the minimal standard of articulable reasonable suspicion under § 16-205.1 and compel a test based on the lesser standard. The effect of this is that license suspensions will be imposed on some people who are not deserving because they made the wrong choice of refusing a test even though it could have exonerated them, and some court cases will be stopped in their tracks and officers subject to lawsuits for acting in violation of the Fourth Amendment.
The proposed amendment to § 16-205.1 is unconstitutional for two reasons, one - it does not require probable cause and two - it ignores the warrant requirement. The result is license suspensions may be easier to obtain but it will be harder to obtain convictions in court. Instead of modifying the language in the current version of section 16 205.1, to reinforce an unconstitutional provision, if the legislature is really serious about prosecuting drunk drivers who cause accidents resulting in life-threatening injury and/or death, a wiser choice for this body, in my humble opinion, would be to make the administrative and judicial standards the same, by requiring probable cause for an arrest and the subsequent test and to put in place procedures for officers to easily obtain a warrant by telephone or email. While there may be cases where exigent circumstances exist that could relieve the police of the necessity of obtaining a warrant, that exception could easily be included as part of a warrant requirement consistent with the Fourth Amendment. These procedures have been adopted and implemented in majority of jurisdictions where warrants are sought in compliance with the Fourth Amendment on a regular basis. There is no justification for not implementing them here.
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On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:
My name is Leonard Stamm. I have been in private practice defending persons accused of drunk driving and other crimes for over 30 years. I am currently Assistant Dean of The National College for DUI Defense, a nationwide organization with over 1300 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys' Association. In 2014, I had the privilege of co-authoring an amicus brief filed by the National Association of Criminal Defense Lawyers and The National College for DUI Defense in the Supreme Court case of Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) . The Supreme Court held that a drunk driving arrest does not automatically create exigent circumstances that would relieve the police of their obligation to first seek a search warrant based on probable cause before compelling a driver to submit to a blood test.
For cases where the arrest occurred before April 17, 2014, the day that McNeely
was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.
This is part of a trend which is disturbing to many lawyers of differentiating between the legal requirements for investigating and prosecuting drunk drivers in court on one hand and taking their licenses and privileges to drive on the other. The Fourth Amendment requires articulable reasonable suspicion to stop a suspected offender and probable cause to make an arrest and conduct a search. Courts hearing criminal cases must adhere to these requirements. However, in license suspension hearings before the Office of Administrative Hearings, the Fourth Amendment has been held not to be an applicable. MVA v. Richards, 356 Md. 356, 739 A.2d 58 (1999). By regulation, stops can only be challenged where the officer acted in bad faith. COMAR 11.11.02.10(H); MVA v. Lipella, 427 Md. 455, 48 A.3d 803 (2012)(the officer need not recite the basis for the stop at the MVA hearing).
Section 16-205.1 requires that a police officer have "reasonable grounds" to "detain" the driver and request or compel a test. However, the Court of Appeals has defined "reasonable grounds" as the minimal standard of articulable reasonable suspicion in Motor Vehicle Admin. v. Shepard
, 399 Md. 241, 923 A.2d 100 (2007). Although § 16 205.1 uses the word "detain," do not be fooled, in 99 out of 100 cases "detain" means "arrest." The Court of Appeals has has further held that "reasonable grounds" exist when an officer merely detects the odor of an alcoholic beverage. Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013).
A result of these decisions is that because the requirements of the Fourth Amendment and license suspension hearings are different, officers are given conflicting commands. So while the Fourth Amendment requires the officer to satisfy the higher standard of "probable cause" to make an arrest and conduct a search, the officer is required to arrest somebody based on the minimal standard of articulable reasonable suspicion under § 16-205.1 and compel a test based on the lesser standard. The effect of this is that license suspensions will be imposed on some people who are not deserving because they made the wrong choice of refusing a test even though it could have exonerated them, and some court cases will be stopped in their tracks and officers subject to lawsuits for acting in violation of the Fourth Amendment.
The proposed amendment to § 16-205.1 is unconstitutional for two reasons, one - it does not require probable cause and two - it ignores the warrant requirement. The result is license suspensions may be easier to obtain but it will be harder to obtain convictions in court. Instead of modifying the language in the current version of section 16 205.1, to reinforce an unconstitutional provision, if the legislature is really serious about prosecuting drunk drivers who cause accidents resulting in life-threatening injury and/or death, a wiser choice for this body, in my humble opinion, would be to make the administrative and judicial standards the same, by requiring probable cause for an arrest and the subsequent test and to put in place procedures for officers to easily obtain a warrant by telephone or email. While there may be cases where exigent circumstances exist that could relieve the police of the necessity of obtaining a warrant, that exception could easily be included as part of a warrant requirement consistent with the Fourth Amendment. These procedures have been adopted and implemented in majority of jurisdictions where warrants are sought in compliance with the Fourth Amendment on a regular basis. There is no justification for not implementing them here.
