Is a search warrant required when an officer seeks to conduct a blood test in a DWI case?
“The Criminal Defense Bar in the State of Minnesota has long been objecting to law enforcement’s ability to obtain samples of a person’s blood, breath, or urine, in DWI cases, without the requirement of a search warrant.”
Attorney Calvin Johnson anticipates that, “The State will now come back and say that, because we have implied consent in Minnesota, no warrant is required.”
However, Mr. Johnson points out, “Implied consent is coercive in and of itself. Anytime a person can be charged with a crime, for refusal to answer a question, coercion exists. If you answer the question, ‘Will you take a test?’, in the negative, you will be charged with a crime. Consequently, when ‘yes’ is the only answer available, it is not consent. It is coercion.”
“It will take some time for the Courts, as well as the prosecutors and defense lawyers in this State, to calculate the total implications of this important United States Supreme Court decision. However, rights of the individual have been vindicated. The State does not have a right to puncture our skin to obtain our blood, without an adequate review, and a search warrant issued by a judge.”
“This is a victory for the citizens of the State of Minnesota.”
- From Calvin P. Johnson, Criminal Defense Attorney
In Missouri v. McNeely, the United States Supreme Court states:
The question presented here is whether the natural metabolization of alcohol in the blood stream presents a per se exigency that justifies an exception to the Fourth Amendments’ warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case base on the totality of the circumstances.
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We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.
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Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception.
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That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.”
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We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U. S., at 758. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. Id., at 770. We explained that the importance of requiring authorization by a “‘neutral and detached magistrate’” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.”
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But the per se exigency rule that the State seeks and the dissent embraces would apply nationally because it treats “the body’s natural metabolization of alcohol” as a sufficient basis for a warrantless search everywhere and always.
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There must…be “no time to secure a warrant.”
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While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake […] Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments.
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Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal […] But the fact that people are ‘accorded less privacy in…automobiles because of th[e] compelling governmental need for regulation’ […] does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing his skin.
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But the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.
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And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement’s ability to recover BAC evidence.
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In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was “sure” a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable.
Source Code Update
August 9, 2012
ATTN: Source Code Clients,
The Supreme Court has issued an Order denying the Sourcecode Coalition's Petition for Rehearing.
This means that our case may soon be called up by the Court to be dealt with in the normal course of business.
Please be aware that the machine authenticated by the State of Minnesota my not be the same machine that tested your breath alcohol. As a result, The State may be forced to call in their expert, to convince a jury that the machine's results are accurate. More importantly, however, is our objection that the test results should not come in at all, because the machine does not correspond with the rules established by the State of Minnesota.
Please remember that there are a fair number of these cases. Each will take time to be heard in its own way. Each judge is different. We will notify you upon any correspondence or instruction that we get from the Court.
Until then, should you have any questions or comments, or thoughts about your case, please contact us.
Thank you for your consideration.
~Calvin P. Johnson, Attorney
July 9, 2012
As you are aware the Minnesota Supreme Court recently issued its 4-3 decision regarding the Intoxilyzer source code. The source code trial team has read, analyzed and discussed the decision and how to proceed from here. As lead and liaison counsel, we have decided to file a petition for rehearing on behalf of the Coalition (See Petition for Rehearing below). We are seeking to expand defendants' and petitioners' ability to, at a minimum, present some evidence to the trier of fact about the machine's faults. We are concerned about district courts precluding the presentation of such exculpatory evidence.
Because of the short deadline to file the petition (10 days), we have had to proceed quickly. The petition was filed by mail on Saturday. The MSCJ has agreed to front the costs associated with writing and filing the petition. We anticipate the total cost to be around $2500. We are asking each coalition member to contribute $50 to help us exhaust all possible remedies in this case. Please keep in mind that those of us on the trial team have sacrificed countless hours on behalf of the entire defense bar. Checks can be made to MSCJ and sent to MSCJ Treasurer David Valentini at 247 3rd Ave. S., Minneapolis, MN 55415.
We expect that we will hear something within 30 days. Regardless of how the court disposes of the petition, you will each have your own individual remedies, including petitioning for certiorari from the US Supreme Court.
I will also be sending letters to the chief judges of each district to inform them of this filing.
Please let me know if you have any questions.
Lee M. Orwig
Click here to review the July 9, 2012 Petition for Rehearing.
Click here to review the Press Release regarding Source Code Litigation by Calvin P. Johnson.
Click here to review the November 2, 2011 Reply Brief.
Click here to review the November 2, 2011 Event Calendar.
Click here to review the October 4, 2011 Attorney General's Brief.
Click here to review the September 29, 2011 State's Brief.
Click here to review August 31, 2011 Source Code Brief.
Click here for a review of the July 26, 2011 Minnesota Supreme Court Order.
Click Here to view the January 11, 2010 Supreme Court Order assigning Judge Abrams to preside over all source code cases.
Click Here for a review of Judge Abrams' Final Order.
Click here for a history of the State and Federal documents submitted in the Minnesota Statewide Source Code Litigation.
Eye Witness Identification
Dear Members of the Public,
Eye Witness Identification evidence is responsible for three out of every four false convictions in DNA cases. It has alerted us to the frailties and possibility of error in obtaining wrongful convictions.
We have recently tried a case in Watonwan County, where four people positively identified the accused as being the perpetrator. The jury came back with a verdict of 11 to 1, in favor of not guilty (acquittal).
There is no question whatsoever that the jury attributed a great deal of importance to our eye witness identification expert. They told the judge when they came in for questions.
How can this happen? Why can somebody make a mistake?
We posed this question to an eyewitness identification evidence expert from the University of Northern Iowa, Cedar Rapids, Iowa. His name is Doctor Otto MacLin. He told us how mistakes can happen. These important considerations are available for all who may have been falsely accused.
All of these eye witness identification cases illustrate the importance of an objective means of investigation by the legal authorities. If they come in with a preconceived idea as to who is guilty, that person may end up not only being charged, but being falsely convicted.
I give this as notice to any who may have this issue in their case. Listed below are some of the documentation that we obtained from this particular case.
New Changes to the DWI Laws
Under the current law, if a first time DWI offender has a blood alcohol concentration (BAC) of .08 to.19, their license revocation will be for 90 days. They can apply for a work permit, after serving a hard revocation period of 15 days.
Beginning July 1, 2011, a first time offender with a BAC of .16 or more will lose their driving privileges for 1 year (compared to 90 days under the old law).
Under the new law, an offender testing at .16 BAC or more can maintain their driving privileges for the period of 1 year, if they opt to participate in the Ignition Interlock Program.
What do you think about the Ignition Interlock Program? Click here to tell us on our blog.
Letter to Editor
For those of you who wonder whether or not this information has been scientifically tested, I refer you to the program developed at the University of Minnesota during the 1950′s and 1960′s. This program is still manifesting in different forms up at the University, to my understanding.
As a simple result of this technology, please know the following:
1. 20 million Chinese get treated by this method for hepatic cancer.
2. Dr. Nagarian’s anti-rejection drug for organ transpalnts was developed from this same technology.
Now, for those of you who want to do a blind study, should you desire to get hepatic cancer and you are Asian, you might decide to see if a placebo has the same effect.
Additionally, for any of you who want to try to have an organ transplant, and want to have a placebo for an anti-rejection drug, you could volunteer your body as a sacrifice in the name of those doubters out there who wonder whether or not colostrum therapy is real.
All you have to do is take a look around. Each and every mammal has survived because of colostrum therapy. To say other wise is to reject the very basic core of our existence.
To read Calvin's Letter to the Editor at the Free Press click the link below:
My View: Raw Milk is Good for Us.
By Calvin Johnson