Articles Posted in DUI

blood-test-warrantsLast month I spoke in Freeport at a seminar for lawyers on the topic of defending OUI cases in Maine. Part of the lecture I gave concerned a 2013 United States Supreme Court case called Missouri v. McNeely, 133 S.Ct. 1552. McNeely is a Fourth Amendment search warrant case dealing with nonconsensual blood testing in drunk-driving cases.

Tyler McNeely was stopped by a state trooper for speeding and crossing the centerline. After performing poorly on the Standardized Field Sobriety Tests, he declined a portable breath test and was arrested for OUI. At the station, he refused to take a breath test and was subsequently transported to the hospital for a blood draw. He did not consent to have his blood drawn, nor did the officer attempt to secure a search warrant. Nevertheless, his blood was subsequently drawn, which alleged a high blood alcohol content.

I will save you the procedural history, but it’s safe to say that on appeal, the Missouri state prosecutors went for a broad, sweeping rule of law that would allow police officers to draw blood under any circumstance, without a warrant or without the consent of the person arrested. They refused to try finding a middle ground; they wanted it all their way.

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The Supreme Court recently decided a case Missouri v. McNeely, 567 U.S. ____ (2012) holding that police officers cannot normally conduct blood-alcohol tests without a warrant. After being stopped by a police officer for speeding and crossing the centerline the officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath.

McNeely admitted to the officer that he had consumed “a couple of beers” at a bar, and he appeared unsteady on his feet when he exited the truck. The officer conducted field sobriety tests on McNeely who performed poorly on the tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC).

The officer then placed him under arrest and transported McNeely to a nearby hospital for blood testing. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.

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The author of one of the greatest home runs in baseball history, thirty-seven years ago Sunday, was arrested for DUI/OUI/DWI on Monday, October 24th. Hall of Fame catcher Carlton Fisk, a god to Red Sox fans like me after his homerun in Game 6 of the 1975 World Series, was arrested in New Lenox, Illinois, refused to take a breath test and had an open bottle of vodka in the truck which was located in a cornfield.

If you are sitting in your vehicle in the middle of a cornfield and are charged with DWI/OUI/DUI here in Maine, you need to consult with a lawyer to help defend your case. How will the DAs Office prove this case beyond a reasonable doubt? Operation of a motor vehicle is an element of the crime that must be proven beyond a reasonable doubt. Was there actual operation? Did the driver admit to operation? In Maine, operation requires a person to either have power or attempt to put power to the wheels. 29-A M.R.S. § 2401(6); State v. Sullivan 146 ME 381 (1951). Is the vehicle in park, or was it in gear with the driver’s foot on the brake?

How will the government overcome the subsequent drinking issue? If there is an open bottle of liquor in the vehicle with the driver, how will they prove that any alcohol onboard the driver wasn’t consumed post-accident? Do they even know how long the driver was sitting in the cornfield?

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Since July of 2004, more than 75,000 ignition interlock devices have been installed in vehicles. These were installed as a result of the Transportation Restoration Act, passed in 1998. Under Maine statute 29-A §2508 a person convicted of a second or subsequent OUI offense may petition for early license reinstatement if they agree to install an approved ignition interlock device in their vehicle and have satisfied all other conditions for license reinstatement as required by the Secretary of State.

An ignition interlock is a sophisticated system that tests for alcohol on a driver’s breathe. It is a device that requires a driver to blow into a small handheld alcohol sensor unit that is attached to a vehicle’s dashboard. In Maine the car cannot be started if a BAC of .025% or higher is detected. The system not only requires a test to start the engine, but also requires a test every few minutes while driving. Termed the “rolling or running retest,” it prevents a friend from starting the car and then allowing an impaired driver from taking over the wheel. It also prevents the operator from drinking while driving.

Ignition interlock devices can be a valued asset for OUI offenders trying to get their lives back on track. With an ignition interlock device installed, OUI offenders can maintain employment, attend school and take care of family obligations.

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As summer officially begins, many young adults will find themselves home for the summer or preparing to leave for college for the first time. Of course, college is a place where freedom abounds and, often, this new-found freedom results in an urge to party. This naturally leads some kids to be tempted to purchase alcohol, in order to liven up their nightlife. While for the older collegiate this may be perfectly acceptable, trouble arises when underage students use all too prevalent and easily computer-generated fake IDs.

Fake ID Penalties

Although most that do so are vaguely aware of some level of risk associated with the presentation of false identification, few realize the serious civil violations that could be facing them should they be discovered. Maine Title 28-A § 2051 stipulates that possessing a fake ID can, as a minor, net you a $200 to $400 fine for a first offense, $300 to $600 for a second, and a guaranteed $600 for the third. In fact, providing any false written or oral evidence (even without having a fake ID) in an attempt to either purchase alcohol as a minor or enter an establishment where minors are forbidden (e.g. a club) can cause you to face the same fines as if you did have a fake I.D., plus (at the judge’s discretion) possible community service.

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GPS Tracking DevicesThe 4th Amendment has been resuscitated!!  Hopefully you recall back in September of 2010, I wrote about GPS tracking devices and a recent decision from the District of Columbia Circuit (“GPS Tracking Devices – A Warrant or Not A Warrant – That is Now the Question”).  Well, on Monday we got our answer; kind of….

In United States v. Antoine Jones, #10-1259 United States Supreme Court (SCOTUS) Justice Scalia wrote the decision of the Court, that said the Government’s installation of the GPS tracking device on the suspect’s vehicle to monitor it’s movement was a search within the meaning of the 4th Amendment, and thus raised the issue of whether a warrant was required prior to the installation.  I said “kind of….” because whether this search required a warrant was not answered.

The Court rejected the government’s argument that the attachment of a GPS device was not a search, but did not define how long or if you could track the vehicle with or without a warrant and what violates a reasonable expectation of privacy. The Court declined to opine on other details, like whether a warrant requirement applied to tracking cell phones. It appears that Justice Sotomayor was certainly ready to cast a much wider net and restrict government activity.

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So what does the Supreme Court’s decision in Bullcoming v. New Mexico mean for the country at large? The answer is that no longer can scientific evidence be introduced into a case as if it were non-testimonial evidence. Testing and subsequent analysis of forensic evidence, far from being rote, requires a level of scientific expertise that, on occasion, may come into question. It is therefore imperative that whoever performs testing on any manner of sample must be made available for testimony so that the accuracy and reliability of the conclusions may be fully investigated. Although this doesn’t pose much of a problem for us here in Maine, many larger states may find themselves in a predicament now that highly technical and crucial forensic evidence can not be presented to the court as though it was generated by some nameless pencil-pusher.

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The Supreme Court recently ruled in Bullcoming v. New Mexico in favor of the Petitioner. The details of this otherwise mundane DWI/DUI case are as follows: Bullcoming, when initially pulled over on the night of the bad incident, refused to take a breath alcohol test. As a result, a blood alcohol test was ordered, which later was introduced as evidence.

The rub, however, is that the results of the blood alcohol test were presented as a business record, meaning that someone other than the forensic investigator which analyzed the blood sample could testify to its accuracy and veracity. Bullcoming argued that the evidence was instead testimonial, and that the Confrontation Clause would therefore be applicable. Although the New Mexico Supreme Court did indeed agree that the blood analysis was testimonial evidence, it ruled that it was admissible without the testimony of the forensic analyst who tested the sample. This ruling was reversed when brought before the Supreme Court, who voted 5-4 in favor of Bullcoming. Congratulations to my friend and colleague Justin McShane, Esq. (@JustinMcShane) who was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Next week: What does this mean for us?

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As the 4th of July approaches, many will be gearing up to celebrate our nation’s independence with a big family get together, a little backyard grilling, and maybe a game of all-American baseball or two. However, the introduction of fireworks into these celebrations can prove disastrous when in Maine. Under Maine Title 9-A, the possession, transportation or storage of fireworks other than sparklers, morning glories and paper or plastic caps without a permit can fetch up to $1000 in fines and a maximum of 6 months in jail, provided the value of the fireworks exceeds $100. If your intent is to sell, you can be fined amounts up to $20,000 and face a 10 year jail sentence (depending on the value of the fireworks). The take-home message is this: don’t party too hard, and especially not with illegal fireworks. Celebrating the USA’s freedom is all well and good, but at the end of the day, it’s better to be able to celebrate your own freedom. 
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