ABA Journal

DUI laws could be complicated by SCOTUS ruling

In December 2012, Emily Sue Falkenstein of Renton, Wash., drove into a marked crosswalk where wheelchair-bound Gregory Ramirez, 48, was crossing with his 6-year-old niece in his lap. The crash broke his leg and his wheelchair, and it left the girl with bruises and scrapes, according to court papers.

The responding officer said Falkenstein’s car smelled strongly of marijuana, but Falkenstein refused to take a blood test voluntarily. At the time, Washington law made blood draws mandatory for anyone arrested on charges of felony DUI, vehicular homicide or vehicular assault. A warrantless test eventually showed above-legal levels of alcohol and marijuana in Falkenstein’s bloodstream.

Initially, Falkenstein faced felony charges of vehicular assault and reckless endangerment. But between the crash and her July 2013 plea deal, the U.S. Supreme Court decided Missouri v. McNeely. In that case, the court said officers may not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of “exigent circumstance.” The rapid disappearance of alcohol from the bloodstream is not considered an exigent circumstance, the court said, though it might be a factor.

Because of the ruling, King County prosecutors decided not to use the results of the blood test as evidence, says Falkenstein’s attorney, Philip Petersen of Auburn, Wash. The good-faith exception to the exclusionary rule would have applied in most states, but Washington doesn’t recognize it.

The likelihood of a challenge was one reason prosecutors offered a plea deal, says Amy Freedheim, senior deputy prosecutor for King County. So last summer Falkenstein pleaded guilty to misdemeanor reckless endangerment and DUI. She was sentenced to 30 days of home detention and 15 days of work release, plus fines and probation.

As in the Falkenstein case, McNeely could complicate intoxicated-driving prosecutions all over the country. According to federal Department of Transportation research, about 20 percent of drivers nationwide refuse to take a test when asked. But a long wait for a warrant may destroy key evidence by allowing the driver’s body to metabolize alcohol or drugs.

Although the Supreme Court said this is not a per se exigent circumstance, it’s still a problem for police agencies without the procedures or technologies to get a warrant quickly. That’s especially so in the 15 states that expressly or implicitly decline to allow electronic warrant applications.

Click here to read the rest of “SCOTUS ruling could complicate laws on impaired driving” from the April issue of the ABA Journal.

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