The U.S. Supreme Court is considering whether a person can be charged with a crime for refusing a breath, blood or alcohol test if the police do not have a search warrant in what could have huge implications for drunk driving cases.
Aaron Delgado, a criminal defense attorney in Daytona Beach, said that he is anticipating the U.S. Supreme Court’s ruling is going to benefit about 50 clients he is defending in DUI cases. Delgado said a breath, blood or urine test is a search and people are protected against searches by the Fourth Amendment.
“If the police came to your house and wanted to search and you said, ‘Gosh no, I’m sorry. You can’t come in without a warrant and I’m not going to answer any questions without a lawyer,’ they couldn’t use that against you,” Delgado said. “But in the case of a DUI they can and there’s no real difference legally between those two.”
The issue is drawing legal scrutiny across the nation. The Supreme Court of Hawaii in November ruled that a man had not voluntarily consented to a breath test and it was not admissible. Police did not have a search warrant and the driver was told that according to state law if he did not consent he would face arrest on the charge of refusing the breath test and up to 30 days in jail if convicted.
The U.S. Supreme Court on Dec. 11 consolidated three cases, two from North Dakota and one from Minnesota, dealing with the issue of breath tests without a search warrant. The lead case is Danny Birchfield v. North Dakota in which the U.S. Supreme Court will review a decision by the Supreme Court of North Dakota that they state “may criminalize any refusal” by a driver to submit to a breath, blood or urine test, according to the filing.
Mothers Against Drunk Driving supports penalties for suspected drunken drivers who refuse a chemical test, wrote Becky Iannotta, wrote the communications manager at the organization's national office in Washington, D.C.
"Law enforcement needs to have all tools at their disposal to keep our roads safe from drunk driving, which kills 10,000 people every year," Iannotta said.
Nationally, 20 percent of arrested drunken drivers refuse a chemical test, but MADD has learned that 40 percent of suspected intoxicated drivers in Florida refuse a test, Iannotta said. Currently, 26 states require ignition interlocks for any person seeking driving privileges after a DUI test refusal, she said.
In Florida the first time a driver refuses a breath, blood or urine test, his or her driver’s license will be suspended for one year. If the driver has previously refused such a test then they will lose their driver’s license for 18 months and could be charged with a misdemeanor.
Delgado said that’s what happened to a client of his named William Williams, 46, who on Oct. 4, 2013, was arrested on charges of driving under the influence. Williams also refused the blood test. During the trial, Williams was found not guilty of driving under the influence and driving with a suspended or canceled or revoked license.
The charge of prior refusal to submit to a test was not part of the trial. Williams entered a no contest plea to that charge and was adjudicated guilty by Judge Belle Schumann. Williams was sentenced to two days jail time with credit for two days-time served.
Delgado appealed to the 5th District Court of Appeal in Daytona Beach, arguing that it was unconstitutional. But the appeals court decided that the breath-alcohol tests was constitutional even without a warrant because it satisfied “the general reasonableness requirement of the Fourth Amendment.”
The 5th DCA said that the state has an interest in prosecuting drunk driving and a breath test is minimally intrusive. Williams also had a diminished privacy expectation since he was driving on a public road and here the court referred to the implied-consent statute as a factor.
But the 5th DCA also wrote in its opinion that while Florida law states drivers are deemed to have consented to a breath test that does not cancel their Fourth Amendment protection “against unreasonable searches and seizures.” And it found that Williams did not necessarily consent to the search when he drove under Florida's implied consent law, and if he did he revoked that consent when he refused the blood test.
Delgado has filed motions to preserve the issue for appeal in anticipation of a favorable ruling by the U.S. Supreme Court.
Spencer Hathaway, spokesman for 7th Circuit State Attorney R.J. Larizza, declined to comment stating his office would wait for the U.S. Supreme Court's ruling. Attorney General Pam Bondi's Office also declined to comment.
James Purdy, the 7th Circuit Public Defender in Daytona Beach, said the breath test goes beyond the search issue because people are being punished for not cooperating with police.
"You have a right to refuse to cooperate. It's not just a search and seizure issue. It's a self-incrimination issue," Purdy said.
Purdy said the breath tests puts defendants in an unfair position.
"It's always been a Catch-22 for the client because if they exercise their right to refuse, they end up getting a new charge," Purdy said.
http://www.news-journalonline.com/article/20151227/NEWS/151229651
Lose your license for refusing a search? Fine.
Charged with a crime for refusing a search? Not fine.
Hope the Supremes get this one right for a change.
Aaron Delgado, a criminal defense attorney in Daytona Beach, said that he is anticipating the U.S. Supreme Court’s ruling is going to benefit about 50 clients he is defending in DUI cases. Delgado said a breath, blood or urine test is a search and people are protected against searches by the Fourth Amendment.
“If the police came to your house and wanted to search and you said, ‘Gosh no, I’m sorry. You can’t come in without a warrant and I’m not going to answer any questions without a lawyer,’ they couldn’t use that against you,” Delgado said. “But in the case of a DUI they can and there’s no real difference legally between those two.”
The issue is drawing legal scrutiny across the nation. The Supreme Court of Hawaii in November ruled that a man had not voluntarily consented to a breath test and it was not admissible. Police did not have a search warrant and the driver was told that according to state law if he did not consent he would face arrest on the charge of refusing the breath test and up to 30 days in jail if convicted.
The U.S. Supreme Court on Dec. 11 consolidated three cases, two from North Dakota and one from Minnesota, dealing with the issue of breath tests without a search warrant. The lead case is Danny Birchfield v. North Dakota in which the U.S. Supreme Court will review a decision by the Supreme Court of North Dakota that they state “may criminalize any refusal” by a driver to submit to a breath, blood or urine test, according to the filing.
Mothers Against Drunk Driving supports penalties for suspected drunken drivers who refuse a chemical test, wrote Becky Iannotta, wrote the communications manager at the organization's national office in Washington, D.C.
"Law enforcement needs to have all tools at their disposal to keep our roads safe from drunk driving, which kills 10,000 people every year," Iannotta said.
Nationally, 20 percent of arrested drunken drivers refuse a chemical test, but MADD has learned that 40 percent of suspected intoxicated drivers in Florida refuse a test, Iannotta said. Currently, 26 states require ignition interlocks for any person seeking driving privileges after a DUI test refusal, she said.
In Florida the first time a driver refuses a breath, blood or urine test, his or her driver’s license will be suspended for one year. If the driver has previously refused such a test then they will lose their driver’s license for 18 months and could be charged with a misdemeanor.
Delgado said that’s what happened to a client of his named William Williams, 46, who on Oct. 4, 2013, was arrested on charges of driving under the influence. Williams also refused the blood test. During the trial, Williams was found not guilty of driving under the influence and driving with a suspended or canceled or revoked license.
The charge of prior refusal to submit to a test was not part of the trial. Williams entered a no contest plea to that charge and was adjudicated guilty by Judge Belle Schumann. Williams was sentenced to two days jail time with credit for two days-time served.
Delgado appealed to the 5th District Court of Appeal in Daytona Beach, arguing that it was unconstitutional. But the appeals court decided that the breath-alcohol tests was constitutional even without a warrant because it satisfied “the general reasonableness requirement of the Fourth Amendment.”
The 5th DCA said that the state has an interest in prosecuting drunk driving and a breath test is minimally intrusive. Williams also had a diminished privacy expectation since he was driving on a public road and here the court referred to the implied-consent statute as a factor.
But the 5th DCA also wrote in its opinion that while Florida law states drivers are deemed to have consented to a breath test that does not cancel their Fourth Amendment protection “against unreasonable searches and seizures.” And it found that Williams did not necessarily consent to the search when he drove under Florida's implied consent law, and if he did he revoked that consent when he refused the blood test.
Delgado has filed motions to preserve the issue for appeal in anticipation of a favorable ruling by the U.S. Supreme Court.
Spencer Hathaway, spokesman for 7th Circuit State Attorney R.J. Larizza, declined to comment stating his office would wait for the U.S. Supreme Court's ruling. Attorney General Pam Bondi's Office also declined to comment.
James Purdy, the 7th Circuit Public Defender in Daytona Beach, said the breath test goes beyond the search issue because people are being punished for not cooperating with police.
"You have a right to refuse to cooperate. It's not just a search and seizure issue. It's a self-incrimination issue," Purdy said.
Purdy said the breath tests puts defendants in an unfair position.
"It's always been a Catch-22 for the client because if they exercise their right to refuse, they end up getting a new charge," Purdy said.
http://www.news-journalonline.com/article/20151227/NEWS/151229651
Lose your license for refusing a search? Fine.
Charged with a crime for refusing a search? Not fine.
Hope the Supremes get this one right for a change.
