Even Vampires Need Warrants!!

by John on September 11, 2014

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.

They took all their chips and pushed them to the middle of the table. The state prosecutors argued that the metabolization of blood within an individual’s body, over time (i.e. while the Arrestee was driving, interacting with the officer, doing field sobriety tests, etc.), was causing evidence of intoxication to dissipate (be destroyed within the body). As a result, they argued, this destruction of evidence caused an “exigent circumstance,” an exception to the Fourth Amendment, thus no warrant should be required.

An “exigent circumstance” arises when a law enforcement officer is faced with a situation where, for example, the immediate loss of evidence, immediate danger or harm to an individual (health or safety issue) will occur if the officer takes the time to get a search warrant.

McNeely’s attorney argued that a blood draw is a search pursuant to the Fourth Amendment that does not constitute an exigent circumstance and, absent the Arrestee’s consent, requires the arresting officer to get a search warrant prior to the blood draw being performed. McNeely’s lawyer argued that in the modern era of electronics, obtaining a warrant is a simple and necessary safeguard needed to protect the rights of citizens.

The United States Supreme Court agreed and ruled that the body’s natural means of dissipating alcohol in the bloodstream does not give rise to an exigency that would justify a warrantless blood draw in every case.

In 1966, in Schmerber v. California, the Court said no warrant was required to take blood without the Arrestee’s consent after an accident in which the driver and a passenger had been injured. The Court cited investigation time, travel time to the hospital, and the time it took to get a warrant as factors justifying a warrantless blood draw. Those factors are much less significant now. The Court noted that almost 50 years later, there are approximately 30 states already using electronic warrants; a far cry from the Schmerber analysis.

In McNeely, the Court did go on to say that there are certainly circumstances that would justify a warrantless blood draw, and those circumstances should be evaluated for their constitutional soundness on a case by case basis, invoking the “totality of the circumstances” analysis to determine if the claimed exigency is valid. I fully expect the government to take a run at the McNeely decision with a death case or a case involving horrific injury that stirs the national conscience.

Please jump over and read Attorney Nichols’ excellent article Blood Test Results Are Not Dispositive Of Guilt in his MAINE DEFENDER Blog.

If you have been accused by the police in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs,” DUI, DWI, Habitual Offender (HO), Operating under Suspension (OAS), possession of a controlled drug or any alleged motor vehicle or criminal offense, call me today at 207-283-6400 and arrange a free consultation in my Saco office at 16 Middle Street (behind the Saco Post Office).

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john-webb-ncdd-trainingI am pleased to announce that I just completed the 2014 Summer Session hosted by the National College for DUI Defense on the grounds of Harvard Law School on July 24-26, 2014. It featured some of the premier Operating Under the Influence (OUI/DUI/DWI) defense attorneys in the country on the faculty, and provided a rigorous curriculum that crossed many skill levels and allowed the participants to learn from the best while having the opportunity to sharpen their trial skills.

I am a Sustaining Member of the National College for DUI Defense and a member of the faculty. The NCDD is a non-profit organization dedicated to the education of criminal defense attorneys and the public about OUI/DUI/DWI laws and practice.

If you have been accused in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs”, or possession of a controlled drug or any alleged motor vehicle or criminal offense, feel free to call  Saco ME and Portland ME OUI attorney John Webb today at 207-283-6400 and arrange a free consultation to discuss your case.

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Community Service and Baseball

July 3, 2014

The Webb Law Firm has always had a strong sense of community service. Whether it’s volunteering, contributing to community causes or defending the constitutional rights of our friends and neighbors, we have remained dedicated to Maine since our youth. While I (@MaineOUI) am involved in other causes, the focus of my community service has found […]

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September 24, 2013

Miley Cyrus is dancing with her, Kanye West sings about her. So who is Molly? Molly is a fairly common street drug that causes hallucinations and euphoria but also promises a terrifying and horrific crash. In addition to the drug’s advertised purity and potency, celebrity endorsements are boosting its popularity. What’s not as widely advertised […]

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September 20, 2013

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, […]

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A Bad Day of Driving Then Drinking

October 24, 2012

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, […]

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A REASON TO STOP YOU: Maine’s “Move Over” Law

September 28, 2012

For a law enforcement officer to stop you, they must have a “reasonable articulable suspicion” that criminal activity is underway.  One issue that gives rise to being stopped is a little known requirement that motorists move over when they see emergency flashing lights on or adjacent to the highway. You’re driving on the highway and […]

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August 21, 2012

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 […]

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John Webb Speaks at NCDD Summer Session

July 30, 2012

I am proud to report that this past weekend I was a Demonstration Speaker and Group Instruction Team member at the Summer Session of the National College of DUI Defense, July 26th to the 28th, hosted by Dean George Stein and held at Harvard Law School in Cambridge, Massachusetts. www.NCDD.com The National College of DUI […]

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Fake IDs and Underage Alcohol Purchases

June 22, 2012

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, […]

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