MENS REA: Why creating magistrates with badges is a bad idea

By Mike Nichols The Supreme Court of the United States heard oral arguments on January 9 on a case in which the government lawyers are actually finally doing what we always knew they wanted: they are asking for a "DUI exception" to the constitution. The lawyers for the state of Missouri and the United States are asking that police officers have authority in drunk driving investigations to conduct a warrantless blood draw if the suspected drunk driver withholds consent. Why even ask for consent for the blood draw if you can just take it? The case of Missouri v McNeely involves whether or not a police officer in Missouri needed to seek a warrant before conducting a blood draw of a suspected drunk driver. In Michigan the implied consent statute requires that the driver be 1) under arrest and 2) advised that the officer will not have blood drawn without a court order and that the officer may seek such an order. At face value, you would not think that McNeely will directly impact Michigan - but I think it could and it certainly will be bad news if the Supreme Court allows cops to become magistrates with badges. The Michigan Implied Consent Act is found at MCL 257.625c. It requires that the officer have arrested the driver VALIDLY. See also cases called People v Keen and People v Borchard-Ruhland. Longstanding legal precedent in Michigan is that a warrantless search, including of a person's body is presumed to be unreasonable. Therefore, judges will typically not allow for blood to be drawn without a warrant. However, some of my colleagues tell me that there are judges in Michigan who believe that a case called Schmerber v California allows a warrantless blood draw in an emergency and emergencies are defined as drunk driving investigations because of the fact that the blood alcohol content is falling. However, in Schmerber, the accused citizen was in an accident and his condition required officials to rush him to a hospital. It was also 1966 when the SCOTUS decided the case. Fax technology was 20 years in the future. This alcohol dissipation claim is a huge misperception. First, the vast body of medical research shows that individuals will frequently continue to see their blood alcohol content rise immediately after taking their most recent drink. Second, that same research shows that the blood alcohol content will 'plateau' or hold steady even if briefly. Third, everyone is different and you cannot possibly think that everyone's blood alcohol content will vanish in the short amount of time it takes to seek a warrant. My review of the blogs and coverage of the argument, including some listserv e-mails sent by Lenny Stamm, who co-authored the Amicus brief filed by the National College for DUI Defense. Stamm suggests that the attorneys for McNeely avoided discussion about the dissipation misperception and focused on the government's argument for a blanket exception. It appears that almost all of the justices including Justice Alito were not thrilled with the idea of a blanket exception to the 4th Amendment covering an entire area of criminal law. Finally, unless we are finally going to rid our courts of the evil of the forensically unreliable "retrograde extrapolation" expert testimony a fact-finder will still get to hear evidence about what the driver's alcohol level was at the relevant point in time with or without a timely chemical test. My office analyzed some affidavits and warrants in order to assist Stamm. It took 8 minutes in 1 case to go from affidavit from the officer to warrant from the judge based on our review of the time stamps on fax banners. The longest was roughly 20 minutes as I recall. The evidence is not going to disappear from the person's blood in that amount of time. Plus, how stupid do we think juries are on this stuff? Most people understand the concept of rising and falling blood alcohol content. Yes, we want to eradicate the evils of drunk driving from the roads. However, giving police officers the authority to analyze their own "probable cause" determination gives them way too much power. Why establish a scenario when an officer can conduct a search without a warrant and without an exigent circumstance. Therefore, if the Supreme Court disallows warrantless blood draws, it will only solidify a legal point that should be jealously guarded but apparently still is misapplied by some Michigan judges. ---------------- Mike Nichols is an adjunct professor of DUI Law and Practice and Forensic Evidence at Thomas M. Cooley Law School in Lansing, a published author of the West Michigan practice guide on DUI and a chapter on chemical testing and measurement for West's "Inside the Minds," publication on scientific evidence. He will be part of a national presentation in February at the American Academy of Forensic Science titled "Science: A matter of Perspective." This will be a first of its kind presentation led by nationally-known attorney-scientist and Michigan native Ted Vosk. Nichols can be reached at mnichols@nicholslaw.net or 517-432-9000. Published: Fri, Feb 1, 2013