What warrants a warrant?

After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least.  On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.

The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant).  The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases.  Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound.  As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:

But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici.  In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).

Missouri v. McNeely, 133 S.Ct. at 1555 (2013).

Is it really so surprising that what warrants a warrant is what is reasonable under the circumstances?

The eyes have it

At the side of the road, law enforcement routinely makes DUI arrests based upon results of a Horizontal Gaze Nystagmus (HGN) test. The underlying premise of the test is: you drink enough alcohol, and then you eyes will show HGN.

Alcohol, however, is not the sole cause of HGN. In State v. Horn, the court recognized the following causes or possible causes of HGN:

  • problems with the inner ear labyrinth;
  • irrigating the ears with warm or cold water;
  • influenza; streptococcus infection;
  • vertigo;
  • measles;
  • syphilis;
  • arteriosclerosis;
  • Korchaff's syndrome;
  • brain hemorrhage;
  • epilepsy;
  • hypertension;
  • motion sickness;
  • sunstroke;
  • eye strain;
  • eye muscle fatigue;
  • glaucoma;
  • changes in atmospheric pressure;
  • consumption of excessive amounts of caffeine;
  • excessive exposure to nicotine; aspirin;
  • circadian rhythms;
  • acute head trauma;
  • chronic head trauma;
  • some prescription drugs; tranquilizers,
  • pain medication,
  • anti-convulsant medicine;
  • barbiturates;
  • disorders of the vestibular apparatus and brain stem;
  • cerebellum dysfunction;
  • heredity;
  • diet;
  • toxins;
  • exposure to solvents;
  • extreme chilling;
  • eye muscle imbalance;
  • lesions;
  • continuous movement of the visual field past the eyes; and
  • antihistamine use.

 

I Want To See A Replay

I was reading DUI Attorney Mark Steven's blog and he touched upon a subject that concerns many DUI attorneys.  Why don't more police officers videotape DUI arrests?  Clearly, this would be the best evidence of a person's degree of impairment.  So, why not use videotape in a DUI investigation?

Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded?  He writes:

Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.

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ARIZONA DUI LAWS PROHIBIT IMPAIRED DRIVING, NOT JUST "DRUNK DRIVING."

It is commonly believed that “drunk driving” is the reason for a DUI charge. However, DUI stands for “driving under the influence” of alcohol or drugs. Under Arizona law, you do not have to be “drunk” to be convicted of DUI. Rather, the law requires only that your driving be impaired by alcohol; Arizona law provides that you cannot drive if your ability to do so is impaired to any degree.

When you are arrested for DUI, you generally receive two types of charges. The first alleges that you were driving while impaired by alcohol or drugs to at least “the slightest degree.” Thus, to violate the statute, you do not have to be falling-down drunk. Rather, a slight impairment of your ability to drive, due to alcohol, violates the law.

The second type of charge you receive when arrested for DUI relates to your blood-alcohol concentration (BAC). For a basic DUI allegation, you’re charged with having a BAC greater than .08 percent within two hours of driving. If your BAC is greater than .150, you may receive an additional charge of Extreme DUI (or if above .200 a "super-extreme DUI.")  These are sometimes referred to as “per se” charges, meaning that if the State can prove your BAC is above a certain limit, that alone proves a violation of the DUI statute.

Many “per se” violations are defended on the grounds that the means used to determine one’s BAC have a large range of accuracy. That is, even if the device used to test your breath or blood was working perfectly, your BAC may actually be lower than indicated. The State concedes that this range of accuracy exists. However, the real debate is over the extent of this range.

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When Can an Officer Make a DUI Arrest Without a Warrant?

In almost all DUI cases the police officer will make an arrest without an arrest warrant.  To make a lawful arrest the police officer must have "probable cause" to believe the person was driving under the influence of alcohol (DUI).  Arizona has codified this probable cause requirement in Arizona Revised Statute §13-3883. 

Arizona courts have defined probable cause as "such a state of facts as would lead a reasonable man of ordinary caution or prudence to believe and consciously entertain a strong suspicion of guilty." State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982).  When the constitutional validity of an arrest is challenged, the court must decide if the facts available to the officer at the moment of arrest “warrant a man of reasonable caution in the belief” that an offense has been committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).  In DUI cases, the determination to arrest is based on the what the officer has observed at the time of arrest.  At that time, was it reasonable for him to believe the person was driving under the influence of alcohol?

 

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