Articles Posted in DUI/OVI Constitutional issues

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As discussed previously in this space, we have been eagerly awaiting the Supreme Court’s decision in Mitchell v. Wisconsin. The Court set out to determine whether Wisconsin’s Implied Consent statute requires police to obtain a search warrant before getting a blood sample from an unconscious DUI suspect. The state of Wisconsin argued that Mitchell, through the state’s Implied Consent statute, had already consented to the blood draw, thereby removing the requirement for a warrant. Alternatively, they argued this should simply be viewed as an exercise of the State’s power to imposes conditions on a person’s privilege to operate a vehicle on Wisconsin’s roads.

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In a 5-4 plurality decision, the Supreme Court disregarded both of these arguments and held the warrantless blood draw from an unconscious DUI suspect typically falls within the ‘exigent circumstances’ exception to the Fourth Amendment’s warrant requirement, so a search warrant is typically not required.

The Court’s Plurality Decision
Justice Alito wrote the opinion for himself, Chief Justice Roberts, Justice Breyer and Justice Kavanaugh. The opinion first acknowledges that the Court held in the past the dissipation of alcohol in blood does not, in and of itself, trigger the exigent circumstances exception, so a search warrant is typically necessary for a blood test. However, the opinion then states the presence of other factors could put additional time constraints on the police. Based on this logic, Justice Alito created a new two-prong test to determine if a blood draw from a DUI suspect would fall within the exigency exception:

1) The alcohol in the suspect’s blood is dissipating; and
2) Some other factors create pressing health, safety, or law enforcement needs that take priority over a search warrant application.

The court also determined that, if a defendant shows their blood would not have been drawn but for the police collecting BAC evidence, the exigent circumstances exception would no longer apply, so a search warrant would be required. Because Mitchell was never able to make such a showing, the Court remanded the case back to Wisconsin state court to apply this new two-part test.

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The United States Supreme Court recently heard oral arguments in the case of Mitchell v. Wisconsin. As this blog discussed previously, this the third case in a series of cases dealing with whether the police can take a DUI/OVI suspect’s blood without a search warrant. The questions and statements from the bench during the oral argument may telegraph how each justice views the issue. However, in our experience, it is difficult to predict the outcome of a case based on the oral arguments.

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The Trilogy of Cases Involving Warrantless Blood Draws
In Missouri v. McNeely, the Court concluded the dissipation of alcohol in blood does not necessarily create an exigent circumstance, meaning a warrant is generally required to obtain a blood sample from a DUI/OVI suspect. They followed that decision with Birchfield v. North Dakota, concluding a warrantless breath test can be administered as a ‘search incident to arrest’, but a blood test still generally requires a warrant.

That brings us to the third piece of the puzzle, Mitchell v. Wisconsin. In that case, the defendant passed out before the police were able to administer a breath test. Relying on Wisconsin’s Implied Consent statute, the police took the defendant to the hospital and had his blood drawn without a warrant. Mitchell was convicted of the DUI charge; and appealed his conviction on the ground the blood draw was an unconstitutional violation of his 4th Amendment right against unreasonable searches and seizures.

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Brynn Campbell was involved in a head on-crash which killed the 83-year-old woman driving the other car. Campbell was taken to the hospital, and hospital staff performed a urine test. Although Campbell showed no obvious signs of impairment, a police officer went to the hospital and asked the nurse for the urine test results. The results showed Campbell’s alcohol level was well over the limit, according to the Global News. The officer then obtained a search warrant to obtain Campbell’s urine samples and have them tested. Campbell was charged with vehicular homicide. She was acquitted by the trial court, and the prosecution appealed.

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The issue for the appeal was whether the defendant’s rights were violated if the urine test results were introduced as evidence at the trial. The Court of Appeal ruled this was a breach of Campbell’s constitutional rights. The Court commented that the police conduct was serious and stated, “The police intentionally obtained information from hospital staff in breach of medical confidentiality and relied on that information to obtain a warrant that otherwise could not have been issued.” The Court of Appeal upheld Campbell’s acquittal.

What Would Ohio Do?
In Ohio, we have a pair of laws which address the issue of law enforcement officers obtaining alcohol/drug test results from health care providers. Ohio Revised Code section 2317.022 states an officer who wishes to obtain such records can make a written request to the health care facility. Ohio Revised Code section 2317.02 states that, if an officer makes such a request, the health care facility shall supply to requested records. That statute has an exception for situations in which providing the records is specifically prohibited by any Ohio or federal law.

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Anyone who has been charged with an OVI / DUI in Ohio has had the pleasure of listening to an officer read several paragraphs from the back of a form provided by the Ohio BMV. This often droll recitation is required by Ohio’s implied consent law, which says that anyone who operates a vehicle in the state implicitly consents to takes a blood/breath/urine test for drugs and/or alcohol if arrested for OVI. An implied consent law similar to Ohio’s was recently found to be unconstitutional by the Georgia Supreme Court.

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The Georgia Case
That recent case is Elliot v. Georgia. In that case, the Supreme Court of Georgia reviewed the state’s implied consent notice. Georgia’s notice is very similar to Ohio’s in form, with one major difference: Georgia’s includes a sentence stating “Your refusal to submit to the required testing may be offered into evidence against you at trial.” It was this sentence which led to the Georgia Supreme Court evaluating their implied consent law.

As part of their evaluation, the Court reviewed the history of case law in their state, as well as the evolution of their ten (yes, 10) different state constitutions. Based on this review, the Georgia Supreme Court held the provision allowing the prosecution to use an OVI defendant’s test refusal against them in court is unconstitutional. The Court ruled that using a defendant’s refusal as evidence against them violated the right against self-incrimination as provided by the Georgia State Constitution.

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Just as Hollywood has produced some good movies in trilogies, the United States Supreme Court has produced some good case law in trilogies. The Court addressed the right to confront crime lab analysts with the trinity of Bullcoming, Melendez-Diaz and Williams. On the issue of the need for a warrant to draw blood from a DUI suspect, two-thirds of the triad have been completed: McNeely and Birchfield. The triumvirate is about to be consummated with Mitchell v. Wisconsin.

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The Fourth Amendment protects people from unreasonable searches and seizures. The general rule is, for a search to be reasonable, there must be a search warrant issued by a judicial officer. There are many exceptions to that general rule. The question addressed by this tripod of cases is this: when is the government permitted to seize a DUI suspect’s bodily substances without a search warrant?

 

McNeely and Birchfield
One search warrant exception was analyzed in the first episode of this case law triumvirate: Missouri v. McNeely. McNeely dealt with the exception for searches based on ‘exigent circumstances’: when there is a compelling need for the search and not enough time to obtain a search warrant. The prosecution claimed DUI cases always involve exigent circumstances because the suspect’s blood alcohol concentration decreases with time. The Court concluded the dissipation of alcohol in the bloodstream does not necessarily create exigent circumstances, so a warrant is generally necessary to obtain a DUI suspect’s blood.

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We all remember learning in school the Fourth Amendment is the one which requires police to get a warrant to search your house or arrest you. That bullet point is great for helping kids learn the basics of their Constitutional rights; but, in practice, Fourth Amendment law is far more complex and far less certain. The complexity and uncertainty is illustrated by two recent Ohio DUI / OVI cases in which the same court looks at two very similar cases and comes to completely opposite conclusions.

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Before we get to the cases, we need to lay some ground work. Ohio courts have long held that a driver is seized for Fourth Amendment purposes when an officer asks the driver to perform Field Sobriety Tests (FSTs). Normally, an officer must have probable cause to seize a person in the form of an arrest. However, detaining a driver for FSTs is a lesser type of seizure and therefore is subject to a lesser standard than probable cause: reasonable suspicion. To detain a driver for FSTs, an officer must have a reasonable suspicion the driver is under the influence.

This raises an interesting question: When does a police officer have the required reasonable suspicion to order you out of your vehicle and request that you complete FSTs? This is precisely the question the Fifth District Court of Appeals answered when deciding two recent cases.

 

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The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.

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Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial:  the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?

The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.

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Jamie was driving down the highway with her boyfriend when a police officer stopped Jamie for speeding. It turned out Jamie did not have a driver license, and there was an active warrant for her arrest. The officer put Jamie in the back of his cruiser and placed her under arrest.

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Jamie’s purse was still in the car with her boyfriend, and her boyfriend owned the car. The officer decided to retrieve Jamie’s purse from the car and search it. The officer found drugs and drug paraphernalia in the purse, and Jamie was charged with crimes for possessing those items. In this case, State v. Banks-Harvey, the Ohio Supreme Court had to decide whether the officer’s search of Jamie’s purse violated Jamie’s right against unreasonable searches and seizures.

Both the federal Constitution and the Ohio Constitution protect us from unreasonable searches and seizures. A search conducted without a search warrant, like this one, is presumed to be unreasonable, unless it fits within a recognized exception to the search warrant requirement. In this case, the prosecution argued the search was justified as an inventory search.

 

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The reasonable person. Courts make many decisions using the test of what ‘a reasonable person’ would do/think/feel under certain circumstances. Older cases used the ‘reasonable man’ standard, but newer cased have modernized the test with gender neutrality. In the recent case of Cleveland v. Oles, the Ohio Supreme Court concluded a reasonable person stopped by a police officer and placed in a cruiser would not necessarily believe he or she is ‘in custody’, so Miranda warnings are not required.

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To properly understand the Oles decision, one must first understand the Miranda warnings. Everyone seems to be familiar with the warnings from movies and television (iTunes and Netflix for those born after 1999). Few people, however, seem to understand their origin, development and interpretation.

The United States Constitution and the Ohio Constitution both protect our right against self-incrimination. The the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution contain essentially the same language: ‘no person ‘shall be compelled in any criminal case to be a witness against himself’.

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Fourth amendment law does not lend itself to mathematical formulas. Rather than using equations to decide Constitutional issues, courts look at the totality of the circumstances and make decisions on a case-by-case basis. This is particularly true when it comes to the issue of whether an officer had probable cause to justify an arrest. However, one theorem illustrated by a recent Ohio OVI case is this: clues on Field Sobriety Tests (FSTs) does not equal Probable Cause (PC).

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The case is State v. Kopp. An officer observed the rear license plate was not functioning on Kopp’s vehicle. The officer ran the vehicle’s license plate, which he could read even without the license plate light, and learned the owner of the vehicle had an expired driver license from the state of Ohio. The officer stopped the vehicle. Before stopping the vehicle, the officer had not observed any evidence the driver may be under the influence.

After stopping the vehicle, the officer learned the driver, Kopp, had a valid driver license from the state of Georgia. During the stop, the officer observed the odor of fresh marijuana, as well as the odor of alcohol, and Kopp admitted to smoking marijuana. The officer also noted Kopp’s eyes were very glassy and somewhat bloodshot. The officer asked Kopp to get out of the vehicle for field sobriety testing.

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