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.
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.
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.
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.
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.
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.
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).
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.
In Ohio, and throughout the United States, we have a Constitutional right to be free from unreasonable searches and seizures. In Ohio OVI cases, that means an officer can only arrest a suspect if the officer has probable cause to believe the suspect operated a vehicle under the influence of alcohol and/or drugs. In the recent case of State v. Bracken, the Court of Appeals concluded the arrest was not justified.
The Officer Reportedly Observed Signs Of Intoxication
In the early morning hours, a police officer stopped Cody Bracken for driving 61 mph in a 45 mph zone. The officer noticed a moderate odor of alcohol coming from Cody’s vehicle. The officer also noticed Cody’s eyes were bloodshot and glassy, and his face was flushed. The officer asked Cody about drinking alcohol, and Cody said he drank two beers.
Based on the officer’s observations, he administered field sobriety tests. On the Horizontal Gaze Nystagmus (HGN) test, the officer reportedly observed six clues out of six possible clues. On the Walk And Turn (WAT) test, the officer allegedly observed five out of eight possible clues. On the One Leg Stand (OLS) test, the officer purportedly observed three of four possible clues. On the partial alphabet test, Cody skipped a letter. The officer arrested Cody and charged him with OVI ‘impaired’ in the Franklin County Municipal Court.
At some point, the exception becomes the rule. To discourage police from violating individual rights, we developed the exclusionary rule. If evidence is obtained as a result of an unreasonable search or seizure, or other Constitutional violation, the evidence is excluded from trial. That’s the general rule. Courts, however, have created exceptions to this rule. One exception to the exclusionary rule was the subject of a recent case before the United States Supreme Court. The outcome of that case could affect DUI/OVI cases in Ohio.
The case is Utah v. Strieff. Edward Strieff walked out of a residence in Salt Lake City and was stopped by a narcotics detective. The detective had been conducting intermittent surveillance on the residence and suspected the occupants were dealing drugs there. Strieff was not an occupant. At the time he stopped Strieff, the detective had not seen Strieff engage in any activity resembling a drug deal, and the detective did not know how long Strieff had been in the residence. Nevertheless the detective stopped Strieff and obtained his identification.
The detective ran a check on Strieff and learned there was a warrant for Strieff’s arrest for a minor traffic offense. The detective arrested Strieff and conducted a search of Strieff’s person incident to the arrest. During the search, the detective found methamphetamine in Strieff’s pocket. Strieff was charged with drug possession, and he filed a motion to suppress the evidence based on the illegal stop. The trial court overruled Strieff’s motion, and the case was ultimately appealed through the Utah state courts to the United States Supreme Court.
Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws. A previous article in this blog gives a preview of the cases. To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests. Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases. The Court’s decision will impact Ohio DUI/OVI cases.
After considering 13 cases involving criminal refusal laws, the Court chose these three cases: Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota. These three cases were apparently chosen because they have three varying scenarios. Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test. Bernard challenged his conviction for refusing a breath test. Birchfield argued his conviction for refusing a blood test was unconstitutional. The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.
The Birchfield opinion analyzes the Fourth Amendment issues. The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment. Fourth Amendment law presumes a warrantless search is unreasonable. Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.
Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.
The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.
Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.