Establishing Exigency in the Impaired Driving Case

Establishing Exigency in the Impaired Driving Case Determining what factors are required to show there is a compelling need for official action and no time to secure a blood draw warrant. Jared D. Olson Traffic Safety Resource Prosecutor Idaho Prosecuting Attorneys Association (208) 884-7325 jared.olson@post.idaho.gov www.tsrp-idaho.org IPAA 2017

BLOOD EVIDENCE IN THE IMPAIRED DRIVING CASE An important step in any impaired driving investigation is securing an evidentiary sample from the suspect. Once the officer has legal cause to believe the driver has violated the State s impaired driving statutes, the next step is to obtain an evidentiary sample from that driver. Constitutional provisions, state code and applicable case law govern the conditions under which a blood sample can be drawn from a suspect in an impaired driving investigation. It is important to understand how to legally obtain blood evidence in the impaired driving case. This presentation focuses specifically on the exigent circumstances exception to the warrant requirement. Search Warrants Generally Warrants are preferred. The underlying basis for the preference for warrants appears to be twofold. First, the Fourth Amendment proscribes unreasonable searches and seizures in one clause, and the prerequisites for a valid warrant in the second clause. To not connect the clauses would eliminate any incentive to make use of the warrant procedure. Second, the probable cause burden is to be determined by a neutral and detached judge to operate as a checks and balance on the natural temptation for law enforcement officers to exceed the scope of their authority. 1 Warrantless searches by police officers are presumed to be unreasonable and violate the Fourth Amendment. Justice Powell once wrote, There is no more basic constitutional rule in the Fourth Amendment area that that which makes a warrantless search unreasonable except in a few jealously and carefully drawn exceptional circumstances. 2 Justice Frankfurter was even more emphatic in arguing warrants are required except when there was a good excuse for not getting one. 3 In order to overcome this presumption, the State must show that the search falls within one of the recognized exceptions to the warrant requirement, or was otherwise reasonable under the circumstances. Although, this presentation focuses mainly on the exigent circumstances exception to the warrant requirement, it must be understood that the best way to protect blood evidence in an impaired driving case is to get a search warrant. Again, warrants are preferred. It is best when the evidence is collected after a neutral and detached magistrate has determined there is probable cause to believe the blood draw from the suspected driver will result in relevant evidence. 1 Johnson v. United States, 333 U.S. 10, 13-14 (1948): The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of those usual inferences which reasonable men draw from evidence. Its protection consists in requiring that the inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. 2 United States v. Watson, 423 U.S. 411, 427 (1976) (concurring opinion) 3 United Statesv. Rabinowitz, 339 U.S. 56, 83 (1950) 1

Blood Search Warrants The administration of a blood alcohol test constitutes a seizure of a person and a search for evidence under the Fourth Amendment to the U.S. Constitution and similar provisions of the State Constitution. Searches and seizures performed without a warrant are presumptively unreasonable. To overcome this presumption the State bears the burden to prove: 1. The warrantless search fell within a well-recognized exception to the warrant requirement; and 2. Even if the warrantless seizure is permissible, it must still be reasonable in light of all of the other surrounding circumstances. The existence of an implied consent law should not preclude law enforcement from drawing a suspect s blood under a search warrant. To interpret the implied consent law otherwise would give impaired driving suspects more protection than suspects in other crimes. (However, it is important to check the law of your local jurisdiction. Unfortunately, impaired driving statutes often place limitations on law enforcement investigations not seen in any other crime). In short, a blood draw warrant is a mere evidence warrant. The officer s affidavit must allege probable cause that a particular person committed an offense and the evidence to be seized constitutes evidence of the offense. In impaired driving cases this information is not difficult to articulate but remains essential. The typical search warrant requirements apply, including that a magistrate sign it. The blood draw search warrant differs from the more common search warrant in that it must identify the person to be searched instead of the location or place to be searched. Special care should be taken to specifically identify and describe the suspect. To execute the warrant requires the officer to find qualified help to assist in the withdrawal. The warrant should include a directive from the magistrate ordering authorized personnel to assist, as the law requires. Exceptions to the Warrant Requirement for Evidentiary Blood Draws There are two exceptions to the warrant requirement that have been recognized by appellate courts for evidentiary blood draws in impaired driving cases: exigent circumstances and consent. 4 The exigent circumstances exception allows officers to conduct a warrantless search when there is a compelling need for official action and no time to secure a warrant. Valid consent is also an exception to the warrant requirement. It is important for the law enforcement officer and prosecutor to consider both exceptions to the warrant requirement during the investigation and subsequent prosecution. It is possible that both exceptions may be applicable and should be argued. Therefore, we want to practice seeing both. 4 State v. Diaz, 144 Idaho 300 (2007) overruled in part by State v. Wulff, 157 Idaho 416 (2014); State v. DeWitt 145 Idaho 709 (Ct.App.2008); and State v. Worthington, 138 Idaho 470 (Ct.App.2002). 2

Consent Exception in Blood Draw Cases Unless somehow prohibited by your State Constitution or state statutes, consent is an exception to the warrant requirement. For example, in my state, the Idaho Supreme Court has recognized evidentiary blood draws in impaired driving cases fall within the well-recognized warrant exception of consent. Specifically, any person who drives or is in actual physical control of a vehicle impliedly consents to evidentiary testing for alcohol, drugs or other intoxicating substances at the request of a peace office with reasonable grounds for suspicion of DUI. 5 The evidentiary test is of the officer s choosing and is not limited to a breath test, but may also include testing the suspect s blood or urine. 6 A blood draw must comport with Fourth Amendment standards of reasonableness. The procedure must be done in a medically acceptable manner and without unreasonable force. 7 Fourth Amendment reasonableness standards are assessed objectively by examining the totality of the circumstances. 8 First, the State must provide evidence the blood was drawn by an authorized professional in a safe and reasonable manner. Second, the blood draw must not be performed with inappropriate force. The force must be no greater than that which is reasonably necessary to accomplish the draw and preserve the evidence. 9 Consent to search must be given freely and voluntarily and the consenting party must have proper authority over the area to be searched. 10 Consent may be manifested by words, gesture or conduct. 11 Consent to search may be limited or revoked by the consenting party. 12 The consenting party must have actual or apparent authority over the property to be searched. 13 If your state has an implied consent statute, it is advisable to become familiar with how it interacts with the consent exception to the warrant requirement. For example, in Idaho a driver has impliedly consented to evidentiary testing, but this implied consent can be revoked. 14 After the McNeely decision, many states implied consent statutes were being challenged and the U.S. Supreme Court was called upon again to resolve the constitutionality of drivers refusing to submit to evidentiary testing. The U.S. Supreme Court in Birchfield v. North Dakota 15 held the 4 th Amendment permitted warrantless breath tests as a search incident to arrest, but the search incident to arrest doctrine did not apply to blood draws. Because the search incident to arrest doctrine does not apply to blood draws, a state may not criminalize a refusal to submit to a blood draw. However, a state may criminalize a refusal to submit to a breath test. Civil sanctions are also permissible for blood or breath. 5 State v. Diaz, 144 Idaho 300 (2007) overruled in part by State v. Wulff, 157 Idaho 416 (2014). 6 Id. 7 Id. at 303; and Schmerber v. California, 384 U.S. 757, 768, 86 S. Ct. 1826, 1834 (1966). 8 Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989); accord Rosenberg v. Kootenai County Sheriffs Dept., 140 Idaho 853, 857 (2004). 9 State v. Worthington, 138 Idaho 470 (Ct.App.2002) 10 U.S. v. Matlock, 415 U.S. 164 (1974); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); and State v. Johnson, 110 Idaho 516 (1986). 11 State v. Staatz, 132 Idaho 693 (Ct.App. 1999); and State v. Knapp, 120 Idaho 343 (Ct.App. 1991). 12 State v. Staatz, 132 Idaho 693 (Ct.App. 1999). 13 United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974). 14 State v. Wulff, 157 Idaho 416 (2014) 15 Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). 3

The Court said: Because breath tests are significantly less intrusive than blood tests and in most cases, amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation. 16 In Idaho, we do not have such criminal sanctions, but we do impose civil fines and license suspensions and we are allowed to comment on a person s refusal in trial this has not changed. There is nothing in the Birchfield decision that would invalidate Idaho s implied consent statute. Implied consent laws that impose civil or administrative penalties for refusing to submit to a breath or blood test (urine is mentioned in Footnote 1 of the Court s decision) remain valid. The Court said the following: It is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context. Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. 17 In conclusion, consent, whether implied by statute or actually given by the driver, is a wellrecognized exception to the warrant requirement and should be pursued in collecting the best evidence. Note: A potential impact of some significance per Birchfield is in relation to unconscious drivers. In many states, drivers have given their implied consent per statute to evidentiary testing unless they revoke. The question is whether consent continues or is revoked by the act of being unconscious? Hint: This is a good example of a situation to argue both consent and exigency. Checklist Was the consent to search obtained voluntarily? Did the person consenting to the search have authority to give consent? If not, would the facts surrounding the granting of consent lead a reasonable police officer to believe the person had the authority to consent? Was the scope of the search actually performed within the scope of the consent granted, or which a reasonable officer would believe to have been granted?\ Did the officer obtain the evidence by misrepresenting his status or intentions? 16 See Birchfield v. North Dakota, 195 L. Ed. at 588. 17 Id. at 588-589. 4

Exigent Circumstances Exception in Blood Draw Cases Another well-recognized exception to the warrant requirement involves exigency. A warrant is not required if the exigencies of the situation make the needs of law enforcement so compelling the warrantless search is objectively reasonable under the 4 th Amendment. 18 Generally, exigent circumstances exist when there is a compelling need for immediate official action and no time to secure a warrant. 19 Whether an exigency exists is based on the totality of the circumstances, which is analyzed on a case-by-case basis. 20 The exigent circumstances exception does not apply where there is time to secure a warrant. 21 An officer is justified in performing a warrantless blood draw when he might reasonably have believed he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of the evidence. 22 The U.S. Supreme Court found the destruction of evidence in Schmerber was the natural dissipation of alcohol in the defendant s bloodstream. 23 However, the U.S. Supreme Court held in McNeely that the natural dissipation of alcohol in the bloodstream does not categorically support a finding of exigent circumstances. 24 Rather, the natural dissipation of alcohol in the bloodstream is just one factor in the totality of circumstances that may support a finding of exigency in a specific case. In Schmerber, other relevant factors included the need to investigate the scene of a car crash and transporting the defendant to a hospital for injuries suffered in the crash. Seeking a blood draw under the exigent circumstances exception remains subject to Fourth Amendment standards of reasonableness. As with the consent exception, the procedure must be conducted without unreasonable force and in a medically acceptable manner. Police officers should always provide documentation with both exigent circumstances and consent in mind. If in doubt, do not hesitate in seeking a search warrant. Furthermore, prosecutors should always argue both exigent circumstances and consent when a warrantless evidentiary blood draw is performed. With the increase of drivers under the influence of prescription drugs, synthetic drugs and other illicit drugs, it is unrealistic to rely strictly on breath testing to adequately investigate these lethal crimes. The U.S. Supreme Court in Birchfield continued to hold that taking a person s blood is more intrusive than obtaining a breath sample. 25 However, more importantly, the Supreme Court did NOT change its analysis of exigency that was outlined in the McNeely opinion. Law enforcement may obtain a blood sample pursuant to a warrant as well as in exigent circumstances where the state can prove probable cause and exigent circumstances. 26 18 Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S. Ct. 2408 (1978). 19 Michigan v. Tyler, 436 U.S. 499, 506 (1978); See also Brigham City v. Stuart, 547 U.S. 398 (2006) (officers respond to loud party and witness physical altercation through a screen door and kitchen windows of the home). 20 See Missouri v. McNeely, 133 S. Ct. at 1556; and State v. Wulff, 157 Idaho at 420. 21 State v. Robinson, 144 Idaho 496, 501 (Ct.App.2007). 22 California v. Schmerber, 384 U.S. 757, 770 (1966) (quotation marks and citations omitted). 23 Id. 24 Missouri v. McNeely, 133 S. Ct. at 1563. 25 See Birchfield v. North Dakota, 195 L. Ed. at 580. 26 Id. at 586-588. 5

It is more important than ever that if you are doing an exigency blood draw you articulate the amount of time it would take to get a warrant and that you believe evidence of alcohol and/or other intoxicating drugs is dissipating by the second. This must consist of detailed testimony. You must be detailed in how long the warrant process would take, how much time has elapsed since the defendant s driving, and that you know evidence of alcohol and/or drugs will be lost as time passes. In addition, when testifying about drugs, point out that in your training and experience you know drugs affect the body differently and leave the body at different rates. Be specific about the timing of each part of the impaired driving investigation. In the training scenarios below we will explore the most common circumstances courts have addressed to find exigency in impaired driving blood draw cases. Again, it is worth noting that the U.S. Supreme Court recognized an advantage to blood tests is the ability to detect not just alcohol but also other impairing substances. However, the Court would not extend the search incident to arrest doctrine based on this. The Court said, "Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not." 27 The bottom line is that if there is time to get a warrant for a blood test, then a warrant is required. Checklist If the type of search or seizure normally requires a warrant, did probable cause to obtain one exist? Did the situation require immediate action, thus making it impossible to obtain a warrant? Was evidence in the process of destruction? Was the action taken for safety reasons? Were police in hot pursuit of a person fleeing the scene of a felony or misdemeanor? Was there some other emergency requiring immediate action? Is there a magistrate available with a reliable warrant process? Are there factors in the investigation that would delay the officer s ability to timely secure a warrant? 27 See Birchfield v. North Dakota, 195 L. Ed. at 587. 6

SCENARIO #1: Hello Judge are you there? It s me Margaret. Minding your own business like cops do, you stop to check on another officer s traffic stop. The driver smells of booze, his speech is lethargic, and he has bloodshot and glassy eyes. You politely ask if he would like to try some roadside exercises. The driver becomes agitated and says, No. You put him in bracelets and stick him in the back of your car. After a 15-minute observation period, you ask him pretty please to provide a breath sample. He refuses. You call a prosecutor asking for a search warrant. The prosecutor instructs you to transport the defendant to the jail to coordinate a telephone call with the judge. You also call a phlebotomist to meet you at the jail. Meanwhile, the prosecutor attempts to contact the on-call magistrate by telephone. It is midnight and the judge is not answering. After 3 or 5 attempts within 10 minutes, the prosecutor throws in the towel. There is no back-up system in place, although there are at least 12 other judges in town. The prosecutor instructs you to conduct a warrantless blood draw. The result is 0.226 BAC. What factors would you document/argue to illustrate exigency? 1. _ 2. _ 3. _ 4. _ 5. _ 6. _ 7. _ 8. _ 9. _ 10. _ 11. _ 12. _ 13. _ 14. _ 15. _ NOTES: 7

SCENARIO #2 The Unconscious Driver You are dispatched to a motorcyclist vs. deer encounter on one of your state highways. The deer is dead and the biker is seriously injured and unconscious. A bystander reports smelling alcohol from the biker. You protect the crash scene and direct traffic while EMT s treat the biker. He is transported to the hospital and you soon follow. Minding your own business like cops do, you learn the biker has 3 prior DUI s. You speak with the treating EMT who also reports smelling intoxicants. Finally, you speak with an ER nurse who is the third person to report smelling alcoholic beverages emanating from the unconscious driver. You decide to read the unconscious deer slayer the implied consent advisory. He doesn t revoke. You request the hospital phlebotomist draw blood. However, due to treatment, including a CT it is an hour before blood is drawn. Despite the delay the blood draw produces a 0.11 BAC result. What are your arguments for consent? Exigent circumstances? 8

SCENARIO #3 Don t Mess with My Beauty Sleep! Minding your own business like cops do, you pull over a car at 1 a.m. for failing to signal a right turn. The driver would have had to put down her beer to operate the turn signal. You conduct the Standardized Field Sobriety Tests and the driver exhibits enough clues to request a breath test. She refuses and you correctly decide to get a search warrant for a blood draw. If convicted, the driver is facing her first misdemeanor DUI conviction. You let your fingers do the dialing and the judge answers. She informs you she will only sign search warrants for felony DUI charges. You make the call... What do you do next? 9

LIST OF EXIGENCY FACTORS TO CONSIDER: 1. Is there time to secure a warrant? 2. Was a magistrate judge available to review and sign the warrant? 3. Did the officer make an attempt to procure a warrant? a. Was a warrant obtained after the fact? b. Additional blood draws? 4. The availability of an expedited warrant process? a. If not, is anything being done to fix a deficient process? b. Were there any conflicting factors to the warrant process on that day? 5. The natural dissipation of blood alcohol content or dissipation of drugs other than alcohol. a. What is the suspected impairing substance? b. Do you know how quickly it will dissipate? 6. Chronology of events: a. What time was probable cause established to start the exigency clock? b. Time required to investigate? c. Time required to transport defendant? d. Time usually required to obtain a warrant? e. Time required for hospital to do the blood draw? f. Remember: In alcohol cases, the clock will usually start when defendant refuses the breath test and not at time of the stop. Point this out to the court. 7. Timeline issues: a. How close is the judge? b. How close is the phlebotomist? c. How close is the hospital? d. How close is the jail? e. How long does warrant generally take? f. How long before blood will actually be drawn by hospital personnel? i. For example, officer might request/order the blood draw but it takes over an hour before blood is drawn by hospital personnel. ii. During this delay, did officer make any attempt to secure a warrant? 8. Complexity of the investigation. a. Did the investigation delay the officer s ability to get a warrant? b. Did the crash require shutting down a major intersection, roadway, etc.? c. Did the severity of the crash and large debris field require the crash reconstruction expert to remain at the scene? d. The number of officers involved and the time for each to complete their tasks? e. Are there any weather issues which causes further delay? 9. Availability of other officers to assist? a. Are there other agencies that could assist? b. Is there a holiday that decreased the number of officers available? c. Special events that occupy officers elsewhere? d. Are other agencies allowed to assist in that jurisdiction? (Is this due to an SOP or is it a statute?) 10

10. Did the defendant do anything to delay the investigation? (refuse to do SFSTs, refuse breath test, flee from scene, and so forth.) a. Flee the scene? Hide? b. Refuse to do the field sobriety tests? c. Refuse to take a breath test? d. Did the defendant do anything to resist or obstruct the investigation? 11. Is there a state statute and/or case law that places a time limit on the collection of the evidentiary sample? a. Some states require the evidence to be collected within 2 hours of driving. b. In Idaho, ancillary to the natural dissipation of alcohol is I.C. 18-8004(2), which prohibits the State from using retrograde extrapolation to prosecute a driver who may well have been over the legal limit when driving. The existence of this law makes the natural dissipation of alcohol a particularly acute exigency in Idaho. However, the Court of Appeals rejected this argument in State v. Townsend, 160 Idaho 885, 380 P.3d 698 (Ct.App. 2016) explaining this argument would create a categorical rule. 12. How long of interval between the time of driving/crash and the sample collection? a. Even though retrograde extrapolation may be used, long intervals of time raises questions about the accuracy of the calculations. 13. What do you know about the impending medical procedures? a. What is the treatment? (Surgery, CAT Scan, Other? Anything that may cause the suspect to be inaccessible to collect evidence.) b. What drugs will be administered? c. Will an IV be administered? (Caution: There is conflicting research of whether an IV will have any impact on the accuracy of the blood alcohol concentration.) d. Is there a concern the medication administered will potentially affect the blood sample? e. What is the certainty or uncertainty of the defendant s condition? f. Is there a possibility the defendant will be transported to another medical facility? (i.e. a Level 1 Trauma Center) 14. Are you able to speak with treating physician and/or hospital personnel to learn more about the impending medical procedures? a. Remember to argue HIPPA application. Treating physician and hospital staff are unlikely able to disclose the defendant s condition or other information. Not all of it will fall under the law enforcement exception. b. There may also be state privacy statutes that are more protective than HIPPA. c. The inability to collect accurate and timely information is a factor to consider within the totality of the circumstances test. 15. The State s ethical obligation to collect and preserve potentially exculpatory evidence in a timely and efficient manner. a. Note: Idaho is the only state that has the provision found in I.C. 18-8004(2) that bars prosecution when the blood alcohol content is below 0.08. 11

Factors not likely to be relevant or especially helpful to the exigency analysis Seriousness of the offense (i.e. misdemeanor vs. repeat offender vs. felony vs. vehicular manslaughter). The seriousness of the offense is not relevant to the exigency analysis, but may impact the complexity of the investigation, which factors are relevant to the totality of the circumstances. Testimony or argument that either create or give the appearance of a categorical rule. The hospital where defendant is taken for treatment is in another jurisdiction within the state or outside of the state. Although this creates additional hurdles or complications, the mere fact the defendant is being transported to another jurisdiction is not likely to be a relevant factor itself in an exigency analysis. In Idaho, the State is prohibited by statute and case law from using retrograde extrapolation to prosecute a driver who may well have been over the legal limit at the time of driving. The existence of this law makes the natural dissipation of alcohol a particularly acute exigency in Idaho. However, the Court of Appeals rejected this argument in State v. Townsend, 160 Idaho 885, 380 P.3d 698 (Ct.App. 2016) explaining this argument would create a categorical rule. 12

Index of Post-McNeely Blood Draw Exigency Cases ARIZONA State v. Havatone, 389 P.3d 1251 (2017) CALIFORNIA Cobb v. Rodriguez, 2016 U.S. Dist. LEXIS 158038 COLORADO People v. Ackerman, 346 P.3d 61 (2015) People v. Schaufele, 325 P.3d 1060 (2014) IDAHO State v. Chernobieff, 387 P.3d 790 (2016) NEW JERSEY State v. Nasta, 2017 N.J. Super. Unpublished LEXIS 439 NORTH DAKOTA State v. Morales, 869 N.W.2d 417 (2015) MINNESOTA State v. Stavish, 868 N.W.2d 670 (2015) MISSOURI State v. Reed, 400 S.W.3d 509 (Ct.App.2013) 13

TENNESSEE State v. Martin, 2017 Tenn. Crim. App. LEXIS 365, 2017 WL 1957810 State v. Wells, 2014 Tenn. Crim. App. LEXIS 933 (Ct.App.2014) TEXAS Briggs v. State, 2017 Tex. App. LEXIS 1947 Dennison v. State, 2017 Tex. App. LEXIS 357, 2017 WL 218911 Ayala v. State, 2016 Tex. App. LEXIS 3545, 2016 WL 1418172 McGuire v. State, 493 S.W.3d 177 (Ct.App.2016) Weems v. State, 434 S.W.3d 655 (Ct.App.2014) State v. Garcia, 2017 Tex. App. LEXIS 1635 WASHINGTON State v. Raymundo, 2015 Wash. App. LEXIS 865 WISCONSIN State v. Howes, 893 N.W.2d 812 (2017) State v. Parisi, 875 N.W.2d 619 (2016) State v. Tullberg, 857 N.W.2d 120 (2014) State v. Vongvay, 881 N.W.2d 359 (Ct.App.2016) State v. Malinowski, 794 N.W.2d 928 (Ct.App.2010) 14