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Started By
Message
re: SCOTUS rules police don't need warrant to use blood drawn from unconscious drunk driver
Posted on 6/27/19 at 6:48 pm to theenemy
Posted on 6/27/19 at 6:48 pm to theenemy
quote:
You still have the ability to attack the probable cause of the search in suppression hearings.
He did and the evidence was admitted under Wisconsin's implied consent law which states in essence that by driving on a road in Wisconsin you consent to having your blood, urine or breath drawn and tested if you can't verbalize your consent or lack thereof. The question before SCOTUS was whether this law and its application in this case was a violation of the 4th amendment. Even though Wisconsin waived the exigency argument, SCOTUS took it up and accepted it for them. It's a miscarriage of justice in a few ways.
1
Posted on 6/27/19 at 6:48 pm to theenemy
quote:
It would be silly in this day and age to just lose evidence simply due to a procedure
It would be silly in this day and age to just ignore a constitutional right simply due to a procedure.
Posted on 6/27/19 at 6:51 pm to theenemy
quote:
Is an attempt required?
Not expressly. But the reasoning behind the exigency exception is for cases where other law enforcement duties are more pressing and necessary than seeking a warrant or those duties preclude being able to apply for one. I struggle to think of how that could apply here when they never sought a warrant at all and there was 1 hour between arrest and drawing blood. Further, Mitchell wasn't injured and there wasnt some disaster or crash scene for officers to investigate or tend to.
Posted on 6/27/19 at 6:54 pm to lsu2006
quote:
Even though Wisconsin waived the exigency argument, SCOTUS took it up and accepted it for them. It's a miscarriage of justice in a few ways.
Maybe so. Are they not allowed to use that if the State doesn't argue for it.
I thought they could and have in the past.
Kinda like when they ruled on Affordable Healthcare and claimed that it was a tax.
Posted on 6/27/19 at 6:57 pm to lsu2006
quote:
Not expressly. But the reasoning behind the exigency exception is for cases where other law enforcement duties are more pressing and necessary than seeking a warrant or those duties preclude being able to apply for one. I struggle to think of how that could apply here when they never sought a warrant at all and there was 1 hour between arrest and drawing blood. Further, Mitchell wasn't injured and there wasnt some disaster or crash scene for officers to investigate or tend to.
Doesn't the exception also include the preservation of evidence that is at risk of being destroyed or lost?
Posted on 6/27/19 at 7:01 pm to lsu2006
Kentucky v. King, 2011
Allows exigent circumstances to preserve evidence.
Allows exigent circumstances to preserve evidence.
Posted on 6/27/19 at 7:01 pm to Centinel
How difficult is it to obtain a warrant in these cases? If it's just a mere procedure to call a judge, who always grants it, why bother with going through the motions?
I understand you have rights under the Constitution, but you also are on a public street potentially invaded on others' rights.
I understand you have rights under the Constitution, but you also are on a public street potentially invaded on others' rights.
Posted on 6/27/19 at 7:04 pm to East Coast Band
quote:
I understand you have rights under the Constitution, but you also are on a public street potentially invaded on others' rights.
This doesn't vacate your rights.
Posted on 6/27/19 at 7:04 pm to theenemy
quote:
Doesn't the exception also include the preservation of evidence that is at risk of being destroyed or lost?
It's for situations, among others, like the Kentucky v. King situation you brought up, where there are circumstances where an officer must tend to other pressing needs and doesn't have time to seek a warrant before the evidence will be lost or destroyed. The mere fact that someone may have alcohol in their system which is slowly dissipating doesn't in and of itself create an exigency precluding the necessity of a warrant. Well, at least not until now.
This post was edited on 6/27/19 at 7:05 pm
Posted on 6/27/19 at 7:06 pm to East Coast Band
quote:
How difficult is it to obtain a warrant in these cases?
Depends on the jurisdiction.
Posted on 6/27/19 at 7:09 pm to theenemy
quote:
Depends on the jurisdiction.
Sounds like laziness on the part of the judicial system.
Posted on 6/27/19 at 7:11 pm to lsu2006
quote:
It's for situations, among others, like the Kentucky v. King situation you brought up, where there are circumstances where an officer must tend to other pressing needs and doesn't have time to seek a warrant before the evidence will be lost or destroyed. The mere fact that someone may have alcohol in their system which is slowly dissipating doesn't in and of itself create an exigency precluding the necessity of a warrant. Well, at least not until now.
But part of the Implied Consent Laws are based on the preservation of evidence due to the fact that the alcohol is dissipating as time passes. It just now is getting to the SCOTUS.
This post was edited on 6/27/19 at 7:12 pm
Posted on 6/27/19 at 7:14 pm to theenemy
quote:
But part of the Implied Consent Laws are based on the preservation of evidence due to the fact that the alcohol is dissipating as time passes.
And consent can't be created by operation of law. Here's the Wisconsin statute which was at issue:
quote:
A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection, and if a law enforcement officer has probable cause to believe that the person has violated s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle, or detects any presence of alcohol, controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to a commercial motor vehicle or has reason to believe the person has violated s. 346.63 (7), one or more samples specified in par. (a) or (am) may be administered to the person.
There is nothing in the facts of this case which point to previously-accepted examples of exigent circumstances. There was no emergency, public or otherwise, which the officers needed to tend to and Mitchell was not injured. There were no situations which precluded them applying for a warrant or which would delay their applying for a warrant to the extent evidence of his drunkiness would be lost.
This post was edited on 6/27/19 at 7:17 pm
Posted on 6/27/19 at 7:18 pm to lsu2006
quote:
There is nothing in the facts of this case which point to previously-accepted examples of exigent circumstances. There was no emergency, public or otherwise, which the officers needed to tend to and Mitchell was not injured. There were no situations which precluded them applying for a warrant or which would delay their applying for a warrant to the extent evidence of his drunkiness would be lost.
The part that really disturbs me is that you are showing how this decision was wrong based on their own premises, and they're still arguing for it.
Posted on 6/27/19 at 7:43 pm to lsu2006
quote:
There is nothing in the facts of this case which point to previously-accepted examples of exigent circumstances. There was no emergency, public or otherwise, which the officers needed to tend to and Mitchell was not injured. There were no situations which precluded them applying for a warrant or which would delay their applying for a warrant to the extent evidence of his drunkiness would be lost.
But the implied Consent is based partly on State v Bohling...which cites Schermber v. California.
Schermber v. California Courts ruled:
The court concluded that exigent circumstances were present, and it stated the following:
The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence.' We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused's] arrest.
Posted on 6/27/19 at 7:46 pm to theenemy
quote:
Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused's] arrest.
None of these facts were present in Mitchell. There was no accident. Mitchell wasn’t taken to a hospital until the cops decided they wanted to take his blood. He was sitting in his cell drunk and nodding off.
Posted on 6/27/19 at 7:51 pm to lsu2006
quote:
None of these facts were present in Mitchell. There was no accident. Mitchell wasn’t taken to a hospital until the cops decided they wanted to take his blood. He was sitting in his cell drunk and nodding off.
That is a good point.
This has been a fun discussion.
Posted on 6/27/19 at 7:53 pm to theenemy
quote:
This has been a fun discussion.
Always enjoy a good spirited and civil discussion, especially when it comes to the constitution.
Posted on 6/27/19 at 7:56 pm to lsu2006
quote:
Always enjoy a good spirited and civil discussion, especially when it comes to the constitution.
You both should post more on the Poliboard. More civilized discussion is needed to say the least.
Posted on 6/27/19 at 8:00 pm to Centinel
quote:
You both should post more on the Poliboard
That’s a hard pass for me.
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