Wednesday, December 16, 2015

More about DWI cases

To the person who wrote me a recent comment that I'm not going to publish, I want to say thank you so much for what you said. It was really touching & lifted my otherwise-rather-glum spirits. Thank you for taking the time to reach out & tell me your thoughts. It meant a lot.

In rather exciting news, a case from Minnesota has been picked up by the United States Supreme Court!!! This is probably the closest I'll ever get to being at SCOTUS, so I'm nerding out about it. It's even a case I've talked about to you all! It's the Bernard case involving whether or not the state can make it a crime to refuse to submit to a dwi test. I've voiced my opinion that I think it's wrong to charge a person with a crime for not consenting to a search. And the law in Minnesota on this topic continues to be a moving target. The court of appeals recently held that the state cannot make it a crime to refuse to provide a blood sample. The Bernard decision had dealt with breath samples--it's ok for the state to charge you with a crime if you refuse a breath sample.

So, presently, here's what we know on this topic:

If you're arrested for a dwi & refuse to provide a breath sample, you can be charged with test refusal.

If you're arrested for a dwi & refuse to provide a blood sample, you can't be charged with test refusal.

If you're arrested for a dwi & refuse to give a urine sample, who the hell knows? The courts haven't decided this yet.

To make the cluster even more fucked, the statute says that if a cop first asks for a blood sample & the person refuses, a urine or breath test must be offered instead and if a cop first asks for a urine sample & the person refuses, a blood or breath test must be offered. So you can refuse some tests but not others & some we don't know if you can refuse & sometimes the cops have to offer you a different test which you may or may not be able to refuse.

So. That's fun. Good luck trying to understand that mess.

The right to refuse the blood test causes the most trouble for drug-dwi cases, when it's not alcohol that's the issue, it's drugs. Unlike alcohol, you can't smell it on someone & it doesn't show up on a portable breath test. And many of the "possibly high" indicators are also "possibly medically related" indicators. I had a dwi case once where the police thought it had been drugs, but turned out the guy had had a seizure. Slow cognition, droopy eyelids, confusion, garbled speech...hard to say what causes that without a tox screen of the blood. And any defense attorney with half a brain would be able to get a case like that either outright dismissed or to win at trial if there's no proof of any drugs in the person's system. In the past if a person refused to give a blood sample, they'd still get charged with a crime for refusing. (The most ridiculous parts of the test refusal statute are that 1. The penalty for refusing is almost always more severe than failing the test, so ACTUALLY DRIVING WHILE INTOXICATED is less serious than not giving a sample and 2. Yo can be charged with & convicted of a dwi-test refusal even if you were 100% sober. So combine those two stupid things and you wind up with the possibility that a completely sober person who values their civil liberties & refuses to consent to a sample gets a gross misdemeanor dwi-test refusal charge with the possibility of a year in jail, while an actually intoxicated person driving with a BAC of .15 gets charged with a misdemeanor dwi with the possibility of 90 days in jail. Way to keep our roads safe, legislators!!!!)

The easiest fix to all of this is to just make cops get a warrant for a blood, breath, or urine sample. Then there's no arguments to be had about the test refusal law & what type of tests you can or can't refuse, etc. When I get a case w/ a warrant involved, my immediate reaction is, "well shit" bc most of the time, that will prevent any 4th Amendment arguments about unlawful searches or seizures. All that terrible, horrible, damning evidence that tanks any case we may have gets to all come in. And the thing I challenge the most during pretrial hrgs is warrantless searches (and not to brag, but I win a lot of those, too. Bc I'm a badass.). So, the quickest & easiest way to head off all these issues w/ dwi tests is to just get a damn warrant authorizing the police to collect a blood, breath, or urine sample.

However, the police & the state & the courts strongly dislike this option. Dwi cases make up a large chunk of criminal cases. And the state gets a shitload of money on the cases. On a misdemeanor dwi case, you can expect a $300-400 fine, $80-85 in "court costs" (aka your fee for using the court system), a $25 alcohol assessment fee (which goes to the state and not to the place where you get an alcohol assessment done), and a $680 license reinstatement fee. That's a lot of money. And it goes up from there. If your test is high enough, you pay the state $680 and you have to get an ignition interlock device installed in your car, which is a few hundred dollars & get the device read every month, which costs at least $100 each time. So, dwi cases are cash cows.

Yes, yes, I realize that drunk driving is a problem & people get hurt or killed. In law school one of my roommates was t-boned by a drunk driver & almost didn't make it. She ended up in a coma for 3 months & had yrs of rehab & still has ongoing problems from it. So I GET IT.

Still, dwi cases are a bankroll for the state. And if the police were required to get warrants, that would slow them down, although with the availability of telephone warrants now, not that much. And it's inconvenient. A lot of dwi arrests occur after bar close or on the weekends. Judges don't want to get constant 3:00 a.m. phone calls to issue warrants.

The fact that it's inconvenient or slows things down doesn't trump the 4th Amendment. At least, it shouldn't. And the courts have said that in the past. But when it comes to dwi cases, that doesn't seem to matter.

So, the answer to the problems w/ the test refusal cluster is "get a warrant" but since the legislature & courts don't like that solution, we get a giant mess. But now that SCOTUS has the Bernard case, hopefully we'll get some clarity.

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