On Point blog, page 4 of 9
SCOW: EMT’s blood draw in jail was “under direction of a physician” and constitutionally reasonable
State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision, 2016AP656-CR, 1/12/16; case activity (including briefs)
Kozel, arrested for OWI-2nd and subjected to a blood draw by an Emergency Medical Technician (EMT) at a county jail, challenged the draw as violating §343.305(5)(b) (2011-12) and as unconstitutional, because it was not performed “by a physician in a hospital environment according to accepted medical practices.” ¶43, citing to Schmerber v. California, 384 U.S. 757, 771 (1966).
State v. Adam M. Blackman, 2015AP450-CR, petition for review granted, 12/19/16
Review of a published court of appeals opinion; case activity (including briefs); petition for review
Issues (from the petition):
I. Whether the circuit court properly suppressed Mr. Blackman’s warrantless blood test because he was unconstitutionally coerced into taking the test when he was read the informing the accused form which incorrectly told him that he faced a revocation and other penalties if he refused chemical testing, when he was actually only facing a possible arrest?
II. Whether the circuit court below properly suppressed Mr. Blackman’s blood test where Mr. Blackman was unconstitutionally coerced into taking the blood test, under the totality of the circumstances, when he acquiesced to the unlawful assertion by the officer that they take blood samples in cases like his—in addition to being told that he faced a revocation and other penalties if he refused?
III. Whether section 343.305(3)(ar)2 is unconstitutional on its face and as applied because it coerces consent to otherwise unconstitutional searches without due process of law?
SCOTUS asked to review Gant’s exception to the warrant requirement
SCOTUSblog has named a cert petition filed by the Maryland Public Defender “petition of the day“!! Here are the issues:
1. Under the exception to the warrant requirement announced in Arizona v. Gant, 556 U.S. 332, 343 (2009), permitting a vehicular search incident to a recent occupant’s arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” what quantum of particularized suspicion is required by the Fourth Amendment to justify the search?
2. May the unquantified experience of the arresting officer, alone, supply the necessary particularized suspicion to justify the vehicular search?
Wisconsin, which has trimmed the Fourth Amendment down to more like a Three and a Half Amendment, follows a per se rule requiring no particularized suspicion. See State v. Smiter, 2011 WI App 15. Under this rule, a belief is reasonable, and an officer may search a vehicle, when the recent occupant’s offense of arrest is a non-traffic infraction that could generate physical evidence. On Point will keep you posted on this petition.
Here’s hoping our Maryland comrades get their cert petition granted–even (or especially) without an amicus brief! See post below.
State v. Gary F. Lemberger, 2015AP1452-CR, petition for review granted 10/11/2016
Review of an unpublished court of appeals decision; case activity (including briefs); petition for review
Issues (composed by On Point)
(1) May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?
(2) When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?
SCOTUS: Warrantless alcohol breath tests reasonable, blood tests not
Birchfield v. North Dakota, USSC No. 14-1468, 2016 WL 3434398 (June 23, 2016), reversing State v. Birchfield, 858 N.W.2d 302 (N.D. 2015); vacating and remanding State v. Beylund, 861 N.W.2d 172 (N.D. 2015); and affirming State v. Bernard, 844 N.W.2d 41 (Minn. 2014); Scotusblog pages: Birchfield, Beylund, Bernard (include links to briefs and commentary)
Three years ago, in Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Court rejected a bright-line rule that police may always conduct a warrantless alcohol test on a motorist they have probable cause to believe is driving drunk, pursuant to the exigent circumstances exception. In these three cases, the Court adopts a bright-line rule that the police may always conduct a warrantless alcohol test on a motorist they have arrested for driving drunk, pursuant to the search incident to arrest exception. But they can only Conduct a test of the motorist’s breath, and not the motorist’s blood. Make sense?
Court of appeals ducks Fourth Amendment question
State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)
A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.
Birchfield v. North Dakota, USSC No. 14-1468, cert. granted 12/11/15
The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations:
Question presented (Birchfield v. North Dakota); (Beylund v. Levi); (Bernard v. Minnesota):
Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
Driver’s refusal of blood test held unreasonable despite evidence that he didn’t understand his rights
County of Eau Claire v. Scott S. Mahler, 2014AP1696-FT, 3/31/15, District 3 (1-judge opinion; ineligible for publication) click here for docket and briefs
Mahler, who was arrested for OWI, refused to consent to a chemical test of his blood. The court of appeals found his refusal unreasonable even though the arresting officer failed to have Mahler sign the “Informing the Accused” form and Mahler testified that he did not understand the information on it.
Search of detained passenger was legal because police had probable cause to arrest him
State v. Antwan D. Hopson, 2014AP1430-CR, District 2, 3/25/15 (not recommended for publication); case activity (including briefs)
Even though Hopson was not formally under arrest at the time police searched him in a manner that exceeded the allowable scope of a frisk, the search was legal because the police had probable cause to arrest Hopson for possession of marijuana.
Court of appeals affirms suppression; sees one-shot-sized container exception to Gant
State v. Miranda K. Hinderman, 2014AP1787-CR, 2/12/15, District 4 (one-judge opinion; ineligible for publication); click here for briefs
Just because police had grounds to arrest Hinderman for OWI didn’t mean that they also had reason to believe that evidence relating to the OWI might be found in a 3″x3″ pouch inside her purse, inside her car, where they happened to find marijuana and drug paraphernalia.