Category Archives: Blood Test

New Smartphone App Warns You When You’re Too Stoned To Drive

Bellingham Defense Attorney, Blood Test, Drug Offenses, Drug Recognition Expert, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Race & Law, Search and Seizure, Technology, Washington State Patrol, Whatcom County Criminal Defense, , ,

 

Detects Marijuana Impairment

Technology. Gotta love it.

Canary has created a smartphone app which checks your mental and physical performance levels after ingesting marijuana and before driving. The app has gained widespread popularity and is sanctioned by NORML, an organization whose mission is to move public opinion to legalize the responsible use of marijuana by adults.

The app is straightforward: after logging in, it quickly subjects users to four basic tests: (1) a memory challenge where you have to recall six numbers that briefly appear on screen, (2) a reaction-time game where you have to quickly identify a particular icon from a series of images that pop up, (3) a time-perception assessment where you have to count off 20 seconds in your head as accurately as possible, and (4) a balance test that uses your phone’s accelerometer to gauge your ability to stand motionless on one foot.

After taking the tests, the app compares your results to a personalized performance baseline based on your past attempts at the app or norms built into the program.

Canary then determines whether your performance is impaired. At the end of the three-minute session, a green light means you’re not impaired, a yellow light means you should reconsider driving, and a blinking red light means you are impaired.

“This tool ideally allows cannabis consumers to take control and identify when they present a traffic-safety risk or when they may be under the influence,” says Paul Armentano, deputy director of NORML. “I believe this is information that all responsible marijuana users will want to know.”

The secret to Canary is that it doesn’t focus on potential markers of impaired performance, like levels of THC in your breath, but instead on performance itself. And since it launched weeks ago, Canary has been downloaded more than 10,000 times and is attracting attention from major marijuana players.

My opinion? Canary moves in the right direction. When it comes to marijuana use, drug tests such as urinalyses or blood tests are highly retrospective. The best those tests can do is assess lifestyle and acknowledge that the perpetrator consumed pot at some time recently.  However, these tests have absolutely no impact on whether you can perform. It’s unfair to prosecute someone who might have smoked a joint on Thursday and tested positive on Monday. So yes, testing someone’s performance before driving is absolutely critical to discovering if they’re too stoned to drive.

There’s a social justice incentive behind accurate marijuana impairment tests as well: Since African-Americans are far more likely to be pulled over and arrested for marijuana offenses than whites, an objective way to determine who’s high and who’s not could help level the playing field.

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.

States With the Highest DUI Arrests

Bellingham, Bellingham Defense Attorney, Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, Drug Recognition Expert, DUI, law enforcement, Legislation, marijuana, National Highway Traffic Safety Administration, police, Search and Seizure, Studies, Washington State Patrol, Whatcom County Criminal Defense, , ,

States With the Most Drunk Driving Problems (2021)

Today, a national study on DUI arrests was released by Project Know, a drug addiction resource center that combats substance addiction and the societal issues that stem from it. In it, they sifted through data from federal agencies to figure out where you are most likely to get arrested for a DUI, per capita.

For example, Seattle had 2,861 DUI incidents in 2013, which puts its DUI arrest rate at 43.8 per 10,000 residents—slightly lower than Washington’s 2013 rate of 49.8. There were more DUIs in Seattle in 2013 than in 2012 or 2011 and, so far this year (up to November 16th), there have been 2,588, which should put the end-of-year total at about the same level as 2013’s.

My opinion? Interesting projections. Let’s see data showing the lobbying efforts and financial contributions of different anti-drinking-&-driving groups like Mothers Against Drunk Driving (MADD) . I wonder if their efforts have anything to do with the projections and proactive enforcement of DUI laws in Washington? Just a thought.

Study: Marijuana and Alcohol Doubles Odds for DUI

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, Race & Law, Reckless Driving, Studies, Traffic Infractions, Whatcom County Criminal Defense, , ,

A Marijuana DUI is Tough to Prove | DUI Lawyer

Marijuana is becoming increasingly legalized in the US for medical and recreational use. A new study analyzes the simultaneous use of alcohol and marijuana. In short, simultaneous users had double the odds of drunk driving, social consequences, and harm to self and others.

The researchers analyzed data from the 2005 and 2010 National Alcohol Survey (n=8,626; 4,522 females, 4,104 males). This was a Random Digit Dial, Computer Assisted Telephone Interview survey of individuals aged 18 and older from all 50 states and DC. Blacks and Hispanics were over-sampled. The study authors assessed differences in demographics, alcohol-related social consequences, harms to self, and drunk driving across simultaneous, concurrent, and alcohol-only using groups.

“We looked at three groups of adults,” explained Meenakshi S. Subbaraman, a corresponding author for the study and associate scientist at the Alcohol Research Group, a program of the Public Health Institute. “One, those who used only alcohol in the previous 12 months; two, those who used both alcohol and cannabis but always separately, or concurrently; and three, those who used both alcohol and cannabis and usually together, or simultaneously.

According to the study, simultaneous users did not necessarily always use cannabis while they drank; the groups were based on how often they drank when using cannabis, and not vice versa.

The study authors found that, compared to adults who solely used alcohol, simultaneous users had double the odds of drunk driving, social consequences, and harms to self. Compared to concurrent users, simultaneous users had double the odds of drunk driving. Simultaneous users also had the heaviest drinking patterns in terms of quantity and frequency.

The research brought interesting conclusions. “If cannabis use becomes more prevalent as U.S. states and other countries continue to legalize it, then we need to be prepared to advise people appropriately,” cautioned Subbaraman. “If you use both substances together, your risk of drunk driving, and possibly other consequences, may be higher than if you stick to using one at a time.”

The study appears in the May 2015 online issue of the journal Alcoholism: Clinical & Experimental Research.

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.

Didlake v. DOL: Fees for DOL Hearings Held Constitutional

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Constitutional Rights, Court Fines, Department of Licensing, Due Process, DUI, Ignition Interlock Device, law enforcement, misdemeanor, Washington Court of Appeals, , ,

Cost of a DUI

Here’s an interesting opinion on the ever-increasing financial costs of fighting DUI crimes and the Department of Licencing’s (DOL) automatic suspension of a DUI defendant’s driver’s license.

In Didlake v. Department of Licensing, the Court of Appeals held that Washington’s Implied Consent Statute, RCW 46.20.308, which requires drivers arrested for DUI to pay a $200-$375 statutory fee in order to have an administrative hearing on license suspension, does NOT violate due process because of the driving privilege is not a fundamental right and DOL waives the fee for indigent drivers.

In 2010 – 2011 police arrested James Didlake and other defendants for DUI. Washington’s Implied Consent Statute, RCW 46.20.308, requires that a driver arrested for Driving Under the Influence of an Intoxicant (DUI) pay a filing fee to obtain an administrative review hearing to prevent a driver’s license suspension or revocation. And as required by Washington’s implied consent law, the Department initiated license suspension proceedings against them. Each defendant paid a $200 fee for an administrative review hearing. After they prevailed at their hearings, the Department rescinded their license suspensions.

Didlake filed a class action lawsuit against the DOL, asking for injunctive and declaratory relief, plus a refund and damages. He alleged that the $200 statutory fee for an administrative hearing violates due process. Didlake filed a motion for class certification under CR 23. After filing its answer, the DOL filed a motion to dismiss Didlake’s lawsuit under CR 12(b)(6).

On April 5, 2013, the trial court granted the DOL’s motion to dismiss. Didlake asked the Washington Supreme Court for direct review. On March 5, 2014, the Supreme Court transferred the case to the Court of Appeals.

In rendering its decision, the Court of Appeals gave lots of background on the procedural aspects of challeging DOL license suspensions. The court reasoned that the implied consent law provides certain procedural protections to drivers. The DOL must give the driver written notice that it intends to suspend or revoke the driver’s license. The DOL must also notify the driver of the right to a hearing and specify the steps to obtain one. Within 20 days of this notice, the driver may request in writing a formal hearing before the DOL. As part of the request, the driver must pay a mandatory fee. The DOL may waive the fee, however, for drivers who are indigent.

At the hearing, the driver may have assistance of counsel, question witnesses, present evidence, and testify. The hearing officer determines if the officer had reasonable grounds to believe the driver was driving under the influence and if the driver refused to take a test or took a test that revealed a BAC of 0.08 or higher. After the hearing, the DOL “shall order that the suspension, revocation, or denial either be rescinded or sustained.”

Here, the Court reasoned that Washington courts have almost always have upheld the constitutionality of filing fees. Courts have consistently distinguished between fundamental interests and interests that are “solely monetary,” involving “economics and social welfare,” or even “important” or “substantial.” If the interest involved is fundamental, due process requires access for all. Here, the court reasoned, a fee waiver for indigent litigants accomplishes this mandate. If the interest is not fundamental, “a monetary prerequisite to an appeal is thus permissible, even for indigent appellants.

Additionally, Courts have identified the driving privilege as an “important” and “substantial” but not fundamental right. Consequently, the court reasoned, this contradicts Didlake’s assertion that the filing fee has a “chilling effect” on drivers’ exercise of their due process rights. Thus, he fails to establish a facial challenge on due process grounds. And because he paid the fee and received a hearing that complied with due process, he does not show that the fee requirement is unconstitutional as applied to him. “Whether facial or as-applied, Didlake’s due process challenges fail.”

 The Court concluded that because Didlake failed to establish that the implied consent statute’s fee requirement violates procedural due process, the Court of Appeals affirmed the trial court’s order dismissing Didlake’s class action claim.

My opinion? Speaking as a DUI attorney, DOL hearings and license suspensions are just another way for the State to profit from defendants charged with DUI. These days, a DOL hearing costs $375. Additionally, a defendant’s window of time to apply for these hearings is small – only 20 days after the DUI incident happened. Finally, DOL hearings are very difficult to win. There must be some glaring legal weakness in the case regarding (1) the pullover of the defendant’s vehicle, (2) the evidence of DUI, (3) whether the officer read the Implied Consent Warnings, and/or (4) whether the defendant tested over .08 BAC or refused the BAC machine.

Unfortunately, given the Court’s analysis above, it appears the wheels of justice shall continue to financially grind upon defendants facing license suspensions from DUI charges.

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.

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

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.

Attorney Alexander Ransom Accepted Into National College of DUI Defense

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Orlando DUI Lawyer | National College for DUI (Drunk Driving) Defense — Orlando DUI Lawyer Elliott Wilcox

Attorney Alexander Ransom became a General Member of the National College for DUI Defense, Inc.

The National College for DUI Defense (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice. The National College is headquartered in Montgomery, Alabama. It consists of a governing Board of Regents, a Founding Membership, a Sustaining Membership and a General Membership.

College members represent the most experienced DUI defense attorneys in the country. Members are among the top DUI practitioners in the United States. The NCDD recognizes defense lawyers who have demonstrated the skill and experience of the original Founding Members, as well as the generosity to financially sustain the growth of the NCDD. General Members are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country.

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. Goggin: Implied Consent Warnings for Blood Test & Crawford Issues

Blood Test, Constitutional Rights, Due Process, DUI, Evidence, felony, law enforcement, police, Terry Stop, Washington Court of Appeals, Washington Supreme Court, , ,

DUI Blood Test (A Former DA Explains How To Beat It In Court)

In State v. Goggin, Division II of the Court of Appeals held that when a blood test is collected pursuant to a search warrant, the officer is not required to advise the defendant that the defendant has a right to additional tests. Also, proof of the defendant’s prior DUI conviction from Idaho was admissible; and the admission did not violate the confrontation clause. 

Mr. Goggin was arrested for DUI. After taking Mr. Goggin in for a blood alcohol concentration (BAC) test, Officer Marcus read Mr. Goggin his implied consent warnings, including his right to have additional tests performed by a person of his own choosing. Mr. Goggin indicated he understood his rights and signed the implied consent form. Officer Marcus obtained a search warrant to draw a sample of Mr. Goggin’s blood. It was taken about three hours after his arrest and without any further independent-testing advisement. 

Mr. Goggin was charged with Felony DUI because he allegedly had four prior DUI convictions.

At trial, Goggin moved to suppress the results of the blood test based on the officer’s failure to advise him of his right to an additional test after obtaining the warrant. The trial court said, “This was a blood draw authorized by a search warrant. The trooper did not have to advise the defendant of the right to additional tests.” Later, Goggin was found guilty. He appealed.

During cross-examination, defense counsel asked Trooper Marcus whether he re-read the implied consent warnings to Mr. Goggin after obtaining the search warrant:

Defense counsel: Did you at any time advise him as part of any warnings related to the blood test that he could get an additional blood test?

Trooper Marcus: That was in part of the implied consent warnings for breath. It states in there that you have the right to additional tests administered by a qualified person of your own choosing.

Defense counsel: You have separate warnings for blood; do you not?

Trooper Marcus: We do, but implied consent warnings for blood weren’t read in this case.

Later in trial, the Prosecutor admitted evidence of the defendant’s prior DUI from Idaho. Although no witnesses actually testified that Mr. Goggin actually had a prior DUI from Idaho, the prosecutor successfully admitted into evidence the Judgment and Sentence conviction data from the Idaho court. Mr. Goggin tried dismissing the case based on the State’s failure to produce a witness from Idaho who could provide evidence that he had been arrested in Idaho. The court denied the motion, finding sufficient circumstantial evidence to go to the jury. The jury found Mr. Goggin guilty of felony OUI. He appealed.

The Court of Appeals held that the arresting officer was not required to advise Mr. Goggin of the right to additional tests because the blood draw was authorized by a search warrant, not the implied consent statute. The Court reasoned that City of Seattle v. Robert St. John, and  RCW 46:20.308(1) allows officers to “obtain a search warrant for blood alcohol tests regardless of the implied consent statute.”

In St. John, the motorcyclist refused to take the voluntary test; but, the evidence that the motorcyclist was driving under the influence constituted sufficient probable cause to justify a warrant. Similarly here, the search warrant and subsequent blood alcohol test were the result of evidence showing Mr. Goggin was driving under the influence. Thus, the State was not required to re-advise Mr. Goggin of his right to additional tests after issuance of the search warrant.

The Court also held that Goggin’s constitutional right to confront a witness under Crawford v. Washington were not violated when the State failed to produce a witness who could testify about Goggin’s prior DUI from Idaho. Here, the State met its burden of proving Mr. Goggin was the same Joseph Goggin convicted of the 2009 DUI in Idaho by submitting Mr. Goggin’s 2007 to 2011 Washington State Identification card.

his photographic identification card included Mr. Goggin’s height and weight, hair and eye color, and his address. This information matched the identifying information in the 2009 Idaho judgment and sentence. The identification card was issued in 2007 and was valid until 2011; thus, it corresponded with the date of the Idaho conviction. Accordingly, the State provided sufficient evidence of this fourth DUI to support the conviction for felony DUI.

Also, Mr. Goggin’s Idaho judgment and sentence was inherently trustworthy. It was not created in anticipation of litigation or to prove a fact at trial; therefore, it was not necessary to cross-examine the clerk who certified the document. A certified record not prepared for use in a criminal proceeding but created for the administration of an entity’s affairs is not testimonial evidence under Crawford v. Washington. Accordingly, the admission of the Idaho judgment and sentence did not violate Mr. Goggin’s confrontation rights.

The Court of Appeals upheld Mr. Goggin’s conviction.

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

Washington State Patrol Upgrades its DUI Breath-Test Machines

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

Measurement of the ethanol level with the Alcotest 9510 (Dräger,... | Download Scientific Diagram

The Washington State Patrol is replacing its old breath-test machines (BAC Machines) with sleek, fast, new $9,500 devices that are used to test drivers arrested on suspicion of driving under the influence of alcohol.

While both BAC machines can measure the alcohol in a person’s system by analyzing a breath sample, the much smaller and sleeker replacement features a touch screen and Microsoft Windows software and can process information faster.

The State Patrol will place 83 of the new Dräger Alcotest 9510 machines in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington before enough are available to use statewide. The machines will be used to test drivers arrested on suspicion of driving under the influence of alcohol.

Whatcom County, Skagit County, Island County and San Juan County’s present BAC machines shall be replaced by the newer models.

Like the old devices, the new one measures alcohol in the lungs by analyzing exhaled breath. However, the new machines utilize a dry gas standard instead of a liquid solution to verify that the instrument is working properly. For years, liquid solutions have had to be mixed locally by scientists, monitored for temperature, and checked regularly by technicians. The Dräger’s dry gas contains a known concentration of alcohol, allowing the instrument to verify that a suspect’s breath alcohol is being measured accurately and reliably, the State Patrol says.

Only troopers, sheriff’s deputies and police officers certified in the Alcotest will be allowed to use the machines.

My opinion? Competent defense attorneys should investigate whether the police officers who arrest our clients for DUI and later operate these machines on our clients are, in fact, certified to operate these machines. If they’re not, then perhaps the BAC result can be suppressed.

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

State v. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

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

Both cops, drivers have rights at checkpoints | Local News | scnow.com

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Mr. Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking.

Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with Felony DUI.

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment.

The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expeditions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

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. 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.