Scottsdale Crime Lab: The Supreme Court's Statement of Issues

Posted on February 17, 2015 by Lawrence Koplow

Today at 11:00 a.m. the Arizona Supreme Court will hear oral arguments regarding whether to reinstate a trial court's finding that - blood alcohol measurements created by the Scottsdale Crime Lab are unreliable.  You can read a history of this litigation by clicking here.

A case being selected by the Supreme Court for review is a rare event.  Simple math shows it is unlikely that any particular case will be reviewed by the Arizona Supreme Court.   The Court receives a substantial amount of “Petitions” to review lower court decisions, but it only selects a small percentage of them each year.  However, because the issues in this case (it is actually a consolidation of 11 cases) will have wide-ranging consequences, it was an ideal case for the Court to review.  The final ruling by the Court, regardless of who prevails, will likely affect how scientific evidence will be handled by Arizona courts for years to come.

While both parties have their own opinions as to what the key issues are, the Court will provide a summary and statement of the issues from their perspective prior to the oral argument.  Last week, as expected, the Court issued its written statement.  Below are the issues as stated in the Court’s summary:

1. Did the Court err by holding that Rule 702(d) challenges are excluded from judicial gatekeeping scrutiny under Arizona law?

2. Did the Court err in using the accuracy of the results as the criteria for a gatekeeping analysis instead of using the trustworthiness of the methodology used to generate the results?

3. Did the Court err in substituting its own judgment for the trial court’s without finding that the trial court’s decision constituted an abuse of discretion?

After reading this statement of the issues, one could jump to a conclusion from the way the issues are framed, that the Court is leaning in a particular the direction.  A word of caution – no one knows how the court is leaning.  The Court’s final opinion could easily list a different set of issues.

Today’s oral argument is being held at Arizona State University Law School.  The argument is open to the public and starts promptly at 11:00 am.  Everyone is welcome to attend – regardless of which side of the argument you are on.

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The Scottsdale Crime Lab cases will be reviewed by the Arizona Supreme Court

The Arizona Supreme Court has decided to review the Court of Appeals' (COA) ruling regarding whether Scottsdale DUI results can be trusted.  

Our ongoing legal battle over the defective software used by the Scottsdale Crime Lab (SCL) to measure BAC levels begins its final stage.  The Supreme Court granted our request to review the COA's decision permitting prosecutors to rely upon the measurements generated by this software as a basis for a DUI conviction. 

WHAT HAPPENED?

Over three years ago a few chromatograms (a graphical representation of a blood alcohol measurement) escaped the Scottsdale crime lab (SCL).  It was something we had never seen before. The floodgates of evidence showing forensic malpractice soon opened.  

We learned, that for several years, the SCL had known of serious defects in the software used to measure BACs.  These malfunctions include assigning an incorrect result with the incorrect person (i.e. John gets Fred's result).  No one in the lab had the expertise to explain why this was occurring, or how to "fix" it.  According to an internal email we obtained from the SCL, they "buried" this from the rest of us.

Even after the defense brought this to light, the Prosecution continued to prosecute the public using this unreliable software.  The penalties for those convicted include mandatorily incarceration and significant monetary fines (a portion of which the crime lab receives).  They are currently still using these defective measurements to incarcerate people.

HOW DID WE GET HERE?

There were two primary venues for these debates: 

(1) Superior Court; and 

(2) Scottsdale City Court.  

The Superior Court (felony cases) is where these rulings originated.  The City of Scottsdale courts took a different approach.  That story will be addressed in a separate post.  In the Superior Court, the main case is State v. Herman (on appeal titled In Re Bernstein).  There were two challenges in "Herman" that ended up in the COA.  

Herman #1 (Re: Discovery) 

Because we only had access to the initial documents that appear to have been allowed out of the SCL by accident, we did not know the scope of the problem.  

We convinced two Superior Court Commissioners to hold a joint hearing.  They agreed with our arguments and issued an order to produce all chromatograms from 2011.  The Court also gave the Lab almost two months to provide them.  The deadline came and went.  The SCL admitted they did not even attempt to comply with the order.

We filed a Motion for Contempt.  The prosecution filed a Special Action asking the COA to reverse the order.  The morning before the contempt hearing, the COA stayed everything.   A few months later...

We did not get the data.  Today, the scope of the malfunctions still remains unknown. 

Herman #2 (Re: Reliability) 

After the COA's ruling, we requested a Daubert (reliability) hearing with the trial court.  This would be Arizona's first substantive Daubert hearing (fortunately, the evidence Rules changed in 2012 to permit such a hearing).   Combined, it lasted almost nine (9) months.  To our surprise, we ended up getting material information in the Daubert hearing (Herman #2) that we did not even think to request in Herman #1. 

At the same time, the Arizona Republic started to investigate our claims.  Through their public records requests (and later our own) a treasure trove of damming evidence was obtained.  

At the hearing, SCL personnel were testifying they understood the issues and put forth an “all was well” message.  However, in contrast to their testimony, the Arizona Republic obtained internal emails, that told a much different story than “all is well.”  Their "private" communications showed the court that the SCL personnel testifying, were less than forthcoming about the severity of the problems and their ability to comprehend them.

The combination of SLC personnel’s tainted testimony, and the testimony our forensic experts (including an independent forensic toxicologist, a certified quality assurance lab auditor, a and forensic software engineer), presented a powerful case that the SCL’s measurements and supporting testimony were not trustworthy. 

Arizona Court of Appeals 

As in Herman #1, the prosecution turned to the court of appeals for relief. 

Again, as in Herman #1, it was provided.  

Arizona Supreme Court

Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they: 

(1) review the court of appeals decision; 

(2) and reinstate the trial court's ruling.

A few weeks ago, the Arizona Supreme Court decided to review the matter.

WHAT'S NEXT.

The Court's decision merely means they granted part one of our request: they will hear the case. They have set oral argument on February 17, 2015 at 11:00 am.  It will be a road game for the Court, as it will be held at ASU Law School.  The oral argument is open to the public, but it is expected to be a full house.  If you want to attend, get there early.

Lawrence Koplow

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Minnesota Supreme Court makes another ruling on implied consent

A couple of weeks ago we wrote about a slight change in the implied consent rule thanks to a new interpretation of the rule by the Minnesota Supreme Court. In a follow-up to that post, this post will look at another decision the Minnesota Supreme Court made in relation to implied consent -- but this time, it has to do with breath tests and an individual who refuses to take one.

Implied consent compels an individual to take a breath test when they are accused of a DUI. As part of your agreement to have a driver's license, you thus "consent" to any breath test that an officer tells you to take. It's part of the privilege of driving. However, there was a significant challenge to this view of implied consent here in Minnesota. Unfortunately, it did not favor those who are accused of drunk driving.

The Minnesota Supreme Court ruled that a breath test does not constitute an unwarranted search and, thus, people do not have the right to refuse such a request by the police. This doesn't change anything, really. It's still the status quo with breath tests.

But this serves as another important reminder about how the criminal system treats DUIs. The rules are very rigid and there is very little leniency with these offenses. If you are accused of driving under the influence of drugs or alcohol, then you need to get an attorney right away to protect your rights and help you with the case.

Source: Albert Lea Tribune, "Minnesota Supreme Court: DWI testing laws are legal," Associated Press, Feb. 12, 2015

Tags: Breath Test Refusal

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Breaking News: Minnesota Supreme Court To Issue Bernard Decision on Wednesday

Home > Fourth Amendment > Breaking News: Minnesota Supreme Court To Issue Bernard Decision on WednesdayPosted on February 9, 2015 by Dan Koewler

We just received notice that the Minnesota Supreme Court will issue its potentially groundbreaking decision in State v. Bernard this upcoming Wednesday, February 11, 2015. In the Bernard case, the Court is being asked to decide whether it is constitutional for the government to criminalize an individual's refusal to submit to a warrantless (and thus presumptively illegal) search.

Want to know more?

You've got two days to watch the oral arguments presented in the case here.

You can read some of our speculation here.

We were given permission to file an amicus curiae brief in this case, and filed on behalf of the Minnesota Society for Criminal Justice and the Minnesota Association of Criminal Defense Lawyers, two very notable and worthy defense organizations in Minnesota.

Any further speculation on this decision is pointless at this point, as we'll have our answer in two days. With hundreds of cases on hold pending this decision, Wednesday is certain to be a very big day.

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Implied consent law has new wrinkle thanks to Supreme Court

We've talked about implied consent on this blog before, and what it means for all drivers in the state of Minnesota if they are accused of driving under the influence. However, a recent ruling by the Supreme Court changes the way the rule is interpreted, and it has a profound affect on people who were looking to challenge a certain aspect to the rule.

Remember that implied consent originally meant that any driver thought to be intoxicated by the police inherently consented to having a blood test done. The consent is agreed to as part of the individual obtaining a license.

However, the rule was challenged as it seemed like the police should have to obtain a warrant before going through with such a blood test -- even under implied consent. The police countered by saying that in the time it would take to obtain a warrant for a drunk driver, the individual's alcohol levels would dramatically shift.

The Supreme Court agreed with the people, saying that the police need to obtain a warrant before they are allowed to proceed with a blood test.

So where does that leave people who were arrested and forced to take a blood test prior to this ruling being made? Well, unfortunately, it looks like they are out of luck. The ruling applies now and will not have any retroactive action.

This is a significant and important change to DWI law in Minnesota, and drivers now need to be aware of this if they are accused of drunk driving.

Source: MPR, "MN court rules DUI blood testing proper in past cases," Bob Collins, Jan. 12, 2015

Tags: Blood Alcohol Tests

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Supreme Court Refuses to Decide Warrantless Forcible Blood Draw Dispute

The United States Supreme Court has announced that it will not hear an appeal from Colorado by prosecutors on whether officers should be allowed to forcibly take blood from a DUI suspect without a warrant. The United States Supreme Court’s refusal to hear the case means that the decision of the Colorado Supreme Court on the issue will stand.

In 2012, Jack Schaufele caused a collision and the responding law enforcement suspected that Schaufele was driving under the influence. Schaufele was transported to the hospital. While at the hospital, Schaufele fell asleep or otherwise became unconscious. While unconscious, law enforcement ordered that Schaufele’s blood be withdrawn without a search warrant to determine his blood alcohol content. As a result of the blood withdrawal, it was later determined that Schaufele’s blood alcohol content was approximately three times the legal limit.

Schaufele was charged with driving under the influence, along with other charges, partly based on the blood alcohol content obtained through the warrantless blood withdrawal. At trial, the judge excluded the blood evidence because it was obtained without warrant, in violation of Schaufele’s 4th Amendment right against unreasonable searches and seizures. On appeal, the Colorado Supreme Court affirmed the trial court’s decision.

Prosecutor’s appealed to the United States Supreme Court arguing that the natural dissipation of alcohol in the body justifies a warrantless, forcible blood withdrawal. The argument being that, by the time it takes officers to obtain a warrant, the blood alcohol content of the suspect will decrease, thus resulting in the loss of evidence.

The Colorado Supreme Court’s decision as well as the decision of the United States Supreme Court’s decision to not hear the matter was, in part, influence by the 2013 landmark case of Missouri v. McNeely.

In Missouri v. McNeely, the United States Supreme Court held that a blood withdrawal was, in fact, a search which is protected under 4th Amendment of the Constitution. Although the United States Supreme Court has carved out exceptions to the warrant requirement, a forcible blood withdrawal, by itself, does not fit into any exception. Prior to this, a forcible blood withdrawal fell within the “exigent circumstances” exception based on the risk of losing a DUI suspect’s blood alcohol content through its dissipation in the body.

Missouri v. McNeely, one of the few good recent decisions by the United States Supreme Court, will stand for now.

In declining to hear Colorado prosecutors’ appeal in Schaufele’s case, the United States Supreme Court has essentially affirmed that our body is, in fact, the most private thing we own. As such, if law enforcement wants to breach that which we hold most private, it will have to strictly adhere to the requirements of the 4th Amendment.

This entry was posted on Monday, January 19th, 2015 at 7:55 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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U.S. Supreme Court Won’t Revisit Warrantless Blood Draws for DUIs

The Supreme Court has turned down a request from prosecutors in Colorado to reconsider the use of warrantless blood draws as evidence in drunk driving cases.

The prosecutors’ request stemmed from the case of Jack Schaufele. While Schaufele lay unconscious in a Colorado hospital following a car crash, a police officer had the medical staff take a blood sample to check his BAC. The results showed Schaufele was almost three times the legal limit. However, a judge excluded the results of the test at trial because the officer had not obtained, or even tried to obtain, a search warrant.

The judge’s decision was later affirmed by the Colorado Supreme Court, which cited the 2013 U.S. Supreme Court ruling in Missouri v. McNeely. In that case the court upheld the suppression of a DUI suspect’s blood draw that was taken without a warrant. The majority of justices dismissed arguments that the body’s rapid metabolism of alcohol inherently creates exigent circumstances that allow for a blanket exception to the 4th Amendment and requirements to obtain a warrant for blood tests.

The court’s 2013 ruling has impacted DUI laws across the country. Last fall, the Idaho Supreme Court ruled that the state’s implied consent statue wasn’t enough to justify warrantless blood draws. Likewise, the Texas Supreme Court struck down that state’s “no refusal” law, which permitted law enforcement to collect blood from suspected drunk drivers who refused to be tested.

Thirteen other states supported Colorado’s request for the Supreme Court to take the case, arguing that the requirement for a warrant cripples efforts to prosecute and punish drunk drivers. Has your jurisdiction enacted different procedures in order to fast track the approval of search warrants in DUI arrests?

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Policing For Profit Approved By Ohio Supreme Court

If you were hoping that the Ohio Supreme Court would curtail a city’s ability to implement policing for profit, you would be disappointed.  Last week, in Walker v. Toledo, Slip Opinion No. 2014-Ohio-5461, a divided Supreme Court ruled that cities in Ohio have complete freedom to set up tribunals that do away with due process protections for motorists accused by a machine.

The majority opinion, written by Justice Kennedy held specifically that,

Municipalities have home-rule authority under Ohio Constitution, Article XVIII,to impose civil liability on traffic violators through an administrativeenforcement system—Ohio Constitution, Article IV, Section 1 and R.C.1901.20 do not endow municipal courts with exclusive authority overtraffic-ordinance violations—Municipalities have home-rule authority toestablish administrative proceedings, including administrative hearings,in furtherance of traffic ordinances, that must be exhausted beforeoffenders or the municipality can pursue judicial remedies.

Without permission from the General Assembly, in 2008 Toledo allowed Redflex Traffic Systems of Australia to set up shop and issue $120 traffic tickets in the city’s name (what we call policing for profit). Vehicle owners could only contest these fines by attending an administrative hearing set up by Toledo. Bradley Walker filed a challenge to his citation on the grounds that the state constitution gives only the legislature the power to set up judicial bodies.

The high court majority did not buy that reasoning and instead agreed with Redflex that cities set up quasi-judicial taxicab review boards without statutory authority, so automated ticketing tribunals should be allowed as well. The court majority insisted the 2008 Mendenhall v. Akron case allowing cities to set up camera programs on their own authority includes permission to set up judicial panels (view decision).

“The reality of municipal civil enforcement of ordinances does not involve regulating the jurisdiction of courts,” Justice Sharon L. Kennedy wrote for the majority. “As we made clear in Mendenhall, civil enforcement of municipal ordinances complements the work of the courts. It does not restrict it… We agree with Redflex’s proposition that municipalities have home-rule authority to establish presuit civil administrative proceedings, including administrative hearings, on civil liability for traffic-law violations.”

The three dissenting justices countered that it is absurd to say that a city council has the power to restrict the jurisdiction of the municipal court by taking away the right to hear traffic camera cases and hand it to a hearing officer. Under state law, the municipal court has jurisdiction over “any ordinance” within its territory, except parking tickets. The dissenting justices accused their colleagues of playing word games.

“It is evident under this statute that the General Assembly has vested the municipal court with jurisdiction over the violation of any ordinance generally and any misdemeanor specifically, other than parking violations,” Justice William M. O’Neill. “The term ‘any ordinance’ does not need interpreting. It is clear on its face. Other than the specifically mentioned parking violation ordinances, ‘any ordinance’ covers ‘any ordinance,’ which includes Toledo Municipal Code 313.12. This is the only logical interpretation of this statute.”

This is a significant policing for profit decision, because a bill effectively banning red-light and speed cameras sits on Gov. Kasich’s desk for approval.  If vetoed, it looks like Ohio red-light and speed cameras will be here to stay for a long, long time despite the will of the people.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

Fairborn, Dayton, Springfield, Kettering,Vandalia,Xenia,Miamisburg, Huber Heights,Springboro,Oakwood,Beavercreek, Centerville

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Minnesota Supreme Court Holds Oral Arguments Today Regarding Minnesota's DWI Laws

Home > Fourth Amendment > Minnesota Supreme Court Holds Oral Arguments Today Regarding Minnesota's DWI LawsPosted on December 10, 2014 by Chuck Ramsay

Big things are about to happen at the Minnesota Supreme Court, and the most visible evidence is going on this morning in two cases: In State v. Larson, the Court will address whether Minnesota should adopt the "good-faith" exception to the rule that the State cannot use unconstitutionally obtained evidence against an individual in court. In State v. Lindquist, the Court will address the same issue, with the added wrinkle of determining if the McNeely decision was "retroactive" (applies to cases that came before the United States Supreme Court issued its decision). 

While many are eagerly awaiting the Minnesota Supreme Court's decision on Bernard (determining the constitutionality of making test refusal a criminal act), the Minnesota Supreme Court is quietly considering other cases as well, cases dealing with 1) Exigency; 2) this "Good Faith Exception"; and, 3) specific application of the McNeely decision in a variety of other cases.

If I was a betting man, here's what I'd predict: I expect the Court to simultaneously issue its decisions in the cases being argued today alongside the Bernard decision argued in September. That would set the stage for the Court to: 1) finally strike down the criminal refusal law as unconstitutional; 2) more carefully define what does and does not constitute "exigency" in the DWI context; and 3) adopt the good-faith exception.  

While recognizing the absurdity of the criminal test refusal law (which makes it a crime for citizens to refuse to waive their fundamental constitutional right against warrantless searches), the court will “save” pending cases by recognizing the good-faith exception. Drivers who were duped into “consenting” to DWI blood, breath or urine tests will be unable to avail themselves of the court’s recognition that police cannot obtain consent by threatening them with an unconstitutional law.  

Such a resolution would add a much needed touch of finality to the current state of confusion regarding Minnesota's DWI laws. From that point forward, the government could no longer charge drivers with the crime of test refusal (but they could still revoke their licenses and use the fact that they refused against them at trial). And in the same breath, it would clear the courts of the backlog of criminal cases building up as attorneys and judges wait for further guidance from the highest court in Minnesota.

This is not what I would like to see, this is just what I am predicting. Soon, we'll explain exactly why a "good faith exception" is anything but good, and how the best way to maintain a free society is to continue to attach real consequences to the government when someone's Constitutional rights are violated.

But today, if you have the time and the inclination, stop by the Minnesota Supreme Court and watch two oral arguments that are going to lead to some pretty groundbreaking decisions in the near future.

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Minnesota Supreme Court Rules "Necessity" Defense Does Not Apply to DWI

Posted on May 21, 2014 by Dan Koewler

Today, the Minnesota Supreme Court released its decision in the case of Axelberg v. Commission of Public Safety. In a 4-3 decision, the Court concluded that Minnesota's Commissioner of Public Safety has the absolute authority to revoke the driver's license of an intoxicated victim of domestic abuse if she (or he) tries to flee (or even hide from) their attacker in a motor vehicle.

The facts of the Axelberg case are sordid, and we laid them out for our readers when the Supreme Court accepted review of this case, but the case can be effectively summarized this way: Axelberg, who had been drinking, was assaulted by her husband at a remote location where they were vacationing. Axelberg, without a cell phone, eventually locked herself in her car to avoid her husband's assault. After he punched the windshield hard enough to break it, she started the vehicle and fled to a nearby resort, driving less than a mile. Axelberg's husband followed her on foot, and was only prevented from further assaulting Axelberg when police were called to the resort.

Axelberg's husband was arrested and taken into custody . . . and the Commissioner of Public Safety revoked Axelberg's driver's license due to the fact that her alcohol concentration was over the legal limit. The Minnesota Attorney General's Office appeared in Court, and argued that it not only had the right to revoke Axelberg's driver's license, but also that Axelberg did not even have the right to explain why she drove while over the legal limit, or raise the ancient, common law defense of "necessity."

Four justices from the Minnesota Supreme Court agreed with the government attorneys, and concluded that Axelberg was precluded from even arguing that her flight to safety (for 9/10 of a mile along a deserted rural road) was permissible under Minnesota's Implied Consent law. Effectively, the Court concluded that because the Implied Consent law does not explicitly permit intoxicated drivers to flee from domestic assault as a last resort, the defense is entirely unavailable no matter how severe the situation. Today, Axelberg not only lost her license as a result of her decision to hide from her attacker, but this license revocation is treated exactly like a conviction for DWI for the purposes of enhancing future offenses.

The decision in Axelberg prompted three strongly worded dissents from three justices. One of the dissents, authored by Justice Lillehaug, wasted no time pointing out that the Commissioner of Public Safety, responsible for punishing Axelberg for her decision to flee from domestic abuse, has the statutory responsibility to promote, "the highest attainable standards of . . . justice for crime victims" and is actually expected, by statute, to advocate for the rights of victims of domestic violence. The dissent then pointed out that "it is hard to imagine that the Legislature intended that the judiciary revoke the license of victims who drive only to escape domestic violence."

A second dissent, authored by Justice Wright, underscored just how unreasonable the result in Axelberg really is, emphasizing that the role of our judicial system has always been to be fair, and that the defense of "necessity" has existed for centuries for just that reason - fairness in the application of our laws. Justice Wright then took the time to carefully outline the serious problems that our society continues to face when it comes to domestic violence - importantly pointing out how access to a vehicle should provide a level of independence and security to a battered woman . . . and not another shackle tying her to her abuser.

The final dissent, authored by Justice Page, neatly summarized the decision reached by the majority when it pointed out that, "By its decision, the court also discourages domestic abuse victims from even seeking refuge in a motor vehicle. Based on our case law, today's decision deprives many victims of domestic violence of the only available refuge." This dissent also highlighted a great deal of case law that would support the application of the "necessity" defense in an Implied Consent hearing.

The Axelberg case is a very troubling one, calling into question not just the problems our society continues to have with drunk drivers and domestic violence, but what role we expect our laws and our judges to fill in ordering that society. This includes questions about the role of our government attorneys, who pressed the Axelberg case all the way to the Minnesota Supreme Court.

Needless to say, as the authors of the amicus curiae brief that we filed in support of Axelberg, we are disappointed in the result reached in this case. Even more hard work was put into this case by Ryan Pacyga and his team, from the start of this case in Kanabec County all the way to the Minnesota Supreme Court.

The one question that needs to be answered now is this: does the Legislature have the political will to fix this situation and protect the rights of domestic abuse victims against an overly rigid set of DWI laws?

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In People v. Tom, the Supreme Court of California Extends Salinas v. Texas to Allow Post-Arrest, Pre-Miranda Silence to be Consciousness of Guilt, part 3.

In the first blog post the Salinas v. Texas decision and "consciousness of guilt" was discussed. In the second blog post, the facts of the People v. Tom case were discussed, and the prosecutor's arguments.

In this blog post we will discuss the reasoning behind the majority decision. This was a difficult post to write, because I do not support the majority decision's logic. DUIs often involve people that were never expected to be in the criminal justice system. When they are, it often involves an education into how criminal law works, as well as what law enforcement can and can not do. The Bill of Rights (the first Ten Amendments to the Constitution) are supposed to be intuitive- just like those magical words by Thomas Jefferson in the Declaration of Independence, "we hold these truths to be self-evident."

But people do not understand their rights- as written about , we are becoming a two class society- those that know their rights, and those that do not. The decision in People v. Tom leads us further down unfortunate road and the reasoning is less intuitive than what triggers Miranda rights. Who will know that an arrestee needs to speak up, and speak up the right way, in order to exercise their right not to incriminate themselves?

How can the California Supreme Court punish an arrestee (still not guilty) for keeping quiet? They approach the decision from the point of view of the State, and law enforcement. While Constitutional rights belong to the individual, the People, represented by prosecutors and law enforcement, have rights too. Specifically, the People have the right to "everyone's testimony." There are only exceptions to the People's right to testimony, and one of those exceptions is the Fifth Amendment for a citizen not to incriminate himself.

As previously discussed, the Fifth Amendment is not the popularly conceived "Right to Remain Silent"- only not to incriminate oneself. The primary interest protected is against a false confession, which is protected by the right to have counsel present during questioning, and Miranda rights when a suspect is questioned in custody. The two work in tandem- Miranda informs the individual of his rights to ensure that any further questioning (or confessions) are voluntary. Part of Miranda is to insure that the arrestee knows his right to counsel and to remain silent.

The California Supreme Court quotes the U.S. Supreme Court in People v. Salinas that "[t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony.' This puts law enforcement on notice that the silence is on purpose, and not being done to think of a good lie, because they are overwhelmed with guilt, or some other nefarious reason.

Also, when someone else exercises their right not to incriminate themselves, law enforcement has the option to make a deal, or to question the individual about something else. For instance, John Smith will not answer questions about where he got the car stereo, but if he is offered immunity for his role, perhaps he will testify about theft ring he is a member of.

From the Supreme Court decision, Salinas v. Texas, the California Supreme Court considers that while out of custody Salinas' silence was used against him, and that if he wanted to remain silent for constitutional protection purposes he would clearly and unambiguously communicate it. From there, it is only a small step to allow Tom's silence, in custody but prior to being Mirandized, as fair game for the People in there case in chief.

The People, after all, are entitled to everyone's testimony, even if that testimony is silence.

In the last and final blog entry in this series, we will discuss the dissent of Justice Liu, who expertly discusses the logical and intuitive problems with the Tom decision.

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Nevada Supreme Court Holds State's Implied Consent Statute Unconstitutional

Home > Fourth Amendment > Nevada Supreme Court Holds State's Implied Consent Statute UnconstitutionalPosted on October 17, 2014 by Jud Nichols

Another state in our union has joined the bandwagon of those requiring warrants in DWI cases.

In a unanimous decision, the Nevada Supreme Court held that, in light of Missouri v. McNeely, there was no basis for warrantless searches of drivers’ blood, as allowed per Nevada's now-unconstitutional statute.

Interestingly, a spokesperson for a Nevada Police Department stated that it won’t affect the state’s day-to-day operations! How is this possible?

Well, unlike Minnesota, Nevada changed its policies shortly after McNeely, and started obtaining warrants.   

Also unlike Minnesota, as a Nevada attorney explained, this decision means a couple important changes in the law: first, now police are going to have to go get a warrant or get true knowing and voluntary consent (as is not fully clarified in Minnesota DWI law), and second, a person can say, “no, I’m not taking your test” (something that cannot be said in our state without being charged with refusal).  

This decision is more evidence of a trend in our county to require warrants in DWI cases, rather than relying on an exception to the warrant requirement, such as "consent," as is being done in Minnesota.

Will our state jump on board soon? We're doing our best to expedite this possibility. 

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State Supreme Court: No Forced Blood Draws

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?
How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.
A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.
Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.
Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.
"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris
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This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
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