State v. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Exigent Circumstances, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, United States Supreme Court, Washington State Patrol, , ,

Harmless Error Blog: Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely, the United States Supreme Court held that police officers investigating DUI must obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.

The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passage of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required.

The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained.

The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. Again, good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

More DUI Drivers Are Testing Positive for Marijuana

Blood Test, Department of Licensing, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, , ,

Marijuana DUI: How Long Does Marijuana Stay in Your System | Leyba Defense Seattle

According to new data released from the Washington State Patrol, more drivers have been testing positive for marijuana since Washington legalized the drug last year.

In the first six months of 2013, 745 people tested positive for marijuana. Typically, there are about 1,000 positive pot tests on drivers in a full year. But this doesn’t necessarily mean there’s been a rash of people driving high, says patrol spokesman Bob Calkins. Well, then what’s the reason?

“We’re testing blood we didn’t test before,” he said.

In addition, the overall number of impaired-driving cases handled by the patrol doesn’t appear to have risen this year, and should be on track to hit the rough annual average of 20,000 – which could mean some people are using marijuana instead of alcohol before getting behind the wheel, Calkins said.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Last year, Washington and Colorado voters legalized the recreational use of marijuana by adults over 21. Both states have set a legal limit of 5 nanograms of active THC per milliliter of blood for drivers; anything above that is a per se violation of impaired driving laws, similar to blowing 0.08 or above on an alcohol breath test. The violation is generally a gross misdemeanor punishable by up to a year in jail — and at least one day in custody for a first offense.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Of the 745 people who tested positive for marijuana in the first half of this year, the State Patrol says a slight majority tested above the legal limit. The exact number: 420. It’s a curious coincidence, since “420” is an old slang term for marijuana.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

My opinion? If they can, they will. Meaning, if the police can test your for blood for marijuana, they will. As I predicted in earlier blogs, the passage of I-502 gives police more search authority. If police think you’re high, they’ll request a blood test. If you refuse, they’ll get a warrant for your blood and/or enter a “Refusal” DUI.

The data is predictable. What I’m seeing happen, unfortunately, is the police seeking blood tests on my clients who are not smoking marijuana. Making matters worse, I’m seeing judges impose Ignition Interlock Devices as a condition of pretrial release, and before clients are convicted of ANYTHING!

There’s something wrong with that. Just saying.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Brass Tacks: A Look at How Courts Are Automatically Imposing Ignition Interlock Devices ASAP

Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, Legislation, marijuana, misdemeanor, police, Uncategorized, Washington State Patrol, , ,

California's Ignition Interlock Law Takes Effect Jan. 1 -- Occupational Health & Safety

Recently, a client hired me to represent him on a new DUI charge. Unfortunately, this client already has a prior DUI conviction within 7 years. We met at my office. He showed me his paperwork – arraignment dates, property seizures, BAC ticket, etc. – and also showed me a document I haven’t yet seen in my years of practice.

It was a Court Order signed by the judge titled, “IGNITION INTERLOCK RULES.”

I knew I’d eventually see this document, sooner or later. Under the recent passage of RCW 46.20.740 and RCW 46.20.385 the COURTS – and NOT the DOL – shall order any person convicted of an alcohol-related violation to apply for an ignition interlock driver’s license and to have a functioning ignition interlock device installed on all motor vehicles operated by the person.

The court may also order the installation of an interlock device for a driver that is convicted of Reckless Driving or Negligent Driving within 7 years of an alcohol related driving offense. An ignition interlock may be required for Reckless Driving or Negligent Driving without a prior DUI conviction. Finally, under the law, an ignition interlock device will be required for any driver convicted of vehicular homicide while driving under the influence.

This document was proof that the Courts are diligently following the passage of these laws. It read the following, ver batim:

* The defendant shall not operate a motor vehicle unless the defendant has a valid driver’s license and insurance;

* Once the defendant has a valid driver’s license and insurance, the defendant shall only operate a motor vehicle equipped with a functioning ignition interlock breath alcohol device while on pretrial;

* The defendant shall have an ignition interlock breath alcohol device installed by a Washington State Patrol certified ignition interlock breath alcohol device vendor on any motor vehicle the defendant will operate;

* The defendant shall bear the cost of installation and maintenance of the ignition interlock breath alcohol device and show proof of installation of the ignition interlock to the court;

* Any ignition interlock breath alcohol device installed pursuant to this order shall be monitored by the installer, and a report filed with the court every sixty (60) days;

* The defendant shall not adjust, tamper with, remove, or circumvent – (1) any ignition interlock breath alcohol device, (2) the wiring of any ignition interlock breath alcohol device, or (3) the ignition system of any vehicle equipped with an ignition interlock breath alcohol device. Any violation or tampering must be reported to the court by the ignition interlock breath alcohol device vendor, and;

* The ignition interlock breath alcohol device shall have certain minimum settings.

My opinion? Although I understand the need for community safety, it appears these new requirements are unconstitutional and overbearing in some cases. The government assumes people are guilty before they even go to trial. Indeed, this particular client showed NO signs of alcohol intoxication in his police reports. Police contacted him because someone complained of his driving.

After pulling him over, the police had no proof whatsoever that he was under the influence of alcohol, and instead believed he was under the influence of drugs. It’s going to take WEEKS to get his blood test back. In the meantime, he must drive around with an Ignition Interlock Device on his vehicle. Unfair.

If you’re facing a similar situation please contact a qualified attorney. I, for one, look forward to fighting this case tooth and nail and removing the Ignition Interlock Device from my client’s vehicle!

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Summer DUI Patrols Seek Prevention of “100 Deadliest Days.”

Blood Test, Drug Offenses, DUI, law enforcement, marijuana, misdemeanor, police, Terry Stop, Uncategorized, Washington State Patrol, , ,

Penalties for Repeat DUI Offenders in Arizona | Blog

It’s that time of year again. Law enforcement agencies across the state are stepping up DUI patrols to help get impaired drivers off the road.

This weekend, Washington’s law enforcement agencies are launching a two-week statewide campaign to crack down on DUI’s. It’s made to coincide with “The 100 Deadliest Days” of Washington’s roads, streets and highways as far as DUI-related accidents are concerned. Statistics show that 30 percent of our traffic deaths across Washington state actually happen between Memorial Day and Labor Day.

In the last six years, 961 people have died on Washington’s roadways during the summer season from alcohol related accidents and other factors. Add this to the fact that 2013 has brought an increase in the number of high-profile DUI related traffic deaths in Western Washington.

Meanwhile, a new measure to strengthen Washington’s DUI laws is being argued in the state legislature as lawmakers continue their stalemate over the budget.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Toxicologist Says, “No Spike YET In Marijuana DUI Arrests”

Blood Test, Constitutional Rights, Drug Offenses, DUI, felony, Jail, law enforcement, Legislation, marijuana, misdemeanor, police, Terry Stop, Uncategorized, Washington State Patrol, , ,

A Marijuana DUI is Tough to Prove | DUI Lawyer

The state toxicologist hasn’t seen a spike in positive blood tests for marijuana since pot became legal under Washington law.

Voters last fall passed Initiative 502, allowing adults over 21 to possess up to an ounce of marijuana. The measure, which took effect Dec. 6, set a DUI limit designed to be similar to the .08 blood-alcohol content for drunken driving – 5 nanograms of active THC per milliliter of blood.

State toxicologist Fiona Couper told a legislative hearing in Olympia on Wednesday that the Washington State Patrol’s toxicology lab has completed tests on all blood samples taken from drivers in December, and has started on samples from last month. She says there’s no spike, but notes the law has only just taken effect.

Couper says that every year, about 6,000 blood samples from drivers are submitted to the lab. About 1,000 to 1,100 of those come back positive for active THC, with the average being about 6 nanograms.

My opinion? This could be the proverbial calm before the storm. Who knows, perhaps law enforcement officers are being trained and retrained on becoming Drug Recognition Experts on marijuana DUI detection. Progressive laws are slow to get enacted, and the government’s response to progressive legislation even slower; especially if it costs money to train/retrain officers. Yes, there’s no spike yet. But don’t get too comfy . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Federal Government Mum on Washington & Denver Legalizing Marijuana

Legislation, marijuana, misdemeanor, Uncategorized, , ,

How legalized cannabis changed Colorado in the past five years

The Feds are silent on Colorado Legalizing Marijuana.

“We’ve got bigger fish to fry,” said President Barack Obama, during an interview with Barbara Walters of ABC News. In short, it’s not a major concern in his administration to continue prosecuting citizens for possessing small amounts of marijuana in states that have legalized the drug.

“This is a tough problem, because Congress has not yet changed the law,” Obama told Walters of the legalization in Colorado and Washington. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”

Backers of new laws that legalized marijuana in Washington and Colorado were cautiously optimistic after President Barack Obama said Uncle Sam wouldn’t pursue pot users in those states. Following the November votes in Washington and Colorado the Justice Department reiterated that marijuana remains illegal under federal law, but had been vague about what its specific response would be.

Marijuana activists were relieved at Obama’s comments, but had questions about how regulation will work. They said even if individual users aren’t charged with crimes, marijuana producers and sellers could be subject to prosecution.

My opinion? Although it appears there’s a cautious green light for citizens in “now-legal” states to possess small amounts of marijuana, don’t light up a joint in the streets any time soon. The new law comes with many strings, bells and whistles attached making it illegal to display and/or possess marijuana in certain situations.

For example, it’s not legal to smoke marijuana while walking around in public places, before driving a vehicle, etc. And the DUI implications are even more staggering.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Extra DUI Patrols Nab 1,600 Washington Drivers

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, , ,

Drive Hammered-Get Nailed - Impaired Driving TV Ad on Vimeo

Police across Washington state arrested more than 1,600 people during a recent drunken-driving enforcement campaign.

According to statistics from the Washington Traffic Safety Commission, 1,603 drivers got busted during this summer’s “Drive Hammered, Get Nailed” anti-DUI campaign, which ran from Aug. 17 to Sept. 3.

A grant from the Traffic Safety Commission paid for the extra patrols. The commission says August is typically one of the deadliest months on Washington’s roads.

My opinion?  Obviously, it’s important to know your Constitutional rights – and respectfully exercise them – during a DUI investigation.  Being stopped for DUI brings many legal issues to the forefront which a competent attorney can address.  Hopefully, your attorney can suppress the evidence and/or get the DUI charges reduced/dismissed.

Was the stop legal?  Was there enough evidence to establish probable cause to arrest?  Were you informed of the implied consent warnings?  Were you advised of your right to an attorney?  Did you provide a portable breath test reading?  Did you perform field sobriety tests?  Did you refuse the Blood Alcohol test at the jail?  If not, was your test result above .08?  Is there an administrative action from the Department of Licensing to suspend or revoke your driver’s license?

These questions, and a host of others, affect how an attorney represents you case.  Although it’s best to avoid a DUI in the first place, it’s equally important to hire competent counsel if you’re charged with DUI.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Increased DUI Patrols in Whatcom County

Bellingham, Blood Test, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, Whatcom County Criminal Defense, , ,

WSP upping DUI emphasis patrols - YakTriNews.com

Be careful.  Extra troopers, deputies and police officers will be on patrol this weekend in Whatcom County and around the state in an effort to get impaired drivers off the roads.

About 1,000 law officers will be on duty in Washington the nights of Friday, Dec. 16, and Saturday, Dec. 17, for the 21st annual “Night of 1,000 Stars.”  The name refers to the badges worn by officers who will be watching for traffic violations, especially drunken driving, aggressive driving, speeding, and failure to wear a seatbelt.  “Every single year that we go through this we arrest people who made a bad choice,” said Washington State Patrol Trooper Keith Leary. “We want people to take our message seriously.”

A State Patrol airplane will also patrol Northwest Washington both nights.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Grier: Ineffective Assistance of Counsel

Burglary, Ineffective Assistance, Jury Trial, Uncategorized, Washington Supreme Court, , ,

What Does Ineffective Assistance of Counsel Mean? - NJ Crimmigration

Interesting.

In State v. Grier, WA Supremes held that a defense attorney’s “all or nothing” approach, in which “lesser included” jury instructions were rejected, was a legitimate trial tactic and did not constitute ineffective assistance of counsel (IAC) under the state or federal constitutions. Trial courts are not required to provide lesser included instructions in the absence of a request for such instructions.

Defendant Kristina Grier was charged with Murder in the Second Degree following a fight she had with the victim Gregory Owen.  earlier, they were drinking with a group of people at Grier’s home.  Owen was alleged to have stolen several items from Grier, during the course of the evening.  Some of these items included three guns.  Grier and her son confronted Owen.  A fight broke out.  Unfortunately, a gun went off, killing Owen.

At trial, Grier’s defense attorney withdrew his earlier request for a jury instruction on the lesser offense of Assault.  As a result, the jury was not instructed on those offenses.  The jury convicted Grier of murder.  The case went up for appeal on the issue of whether Grier’s defense attorney was ineffective.  The Court of Appeals reversed Grier’s conviction.  They believed Grier’s attorney was ineffective because he failed to request instructions on the lesser included offenses.

For those unfamiliar with criminal law practice, a “lesser included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

The WA Supremes ruled Grier’s attorney’s decision to withdraw the lesser included offense instructions did not prevent her from raising an ineffective assistance claim.  The court also held that defense counsel’s “all or nothing” approach was a legitimate trial tactic and was not IAC.  The court vacated the Court of Appeals decision.

My opinion?  Interesting decision.  It’s difficult to play “Monday Morning Quarterback” and call a defense attorney’s trial tactics ineffective simply because the defendant lost at trial.  What if the defense attorney wanted the jury instruction and Grier was convicted?  Would she appeal the case anyway, and call her attorney ineffective because she was convicted on the lesser charge?  Good decision, WA Supremes.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.