Thursday, April 21, 2016

the US Supreme Court is hearing a case today, When police stop you and say that you have to consent to a breathalyzer…is that a voluntary consent under the Fourth Amendment or lazy cops forcing you to give away your Fourth Amendment rights because they don't want to do their job and get a warrant for a search?”

Minnesota attorneys made arguments before the U.S. Supreme Court in Washington D.C. on Wednesday in a case that could affect DWI cases in Minnesota and around the country.

At issue is Minnesota’s law that makes it a crime to refuse a breath test if you are pulled over for DWI. The Minnesota case at issue involves William Bernard, of South St. Paul, who in 2012 was charged in Dakota County for refusing to take a breath test.

The case is unusual. First off, he was not in a car but on a boat ramp — with car keys in his hand — when he refused the sobriety test.

Bernard has consistently denied he was getting ready to drive.

His breath test refusal resulted in a four-year court battle that reached the U.S. Supreme Court on Wednesday morning.

“Mr. Bernard was charged with refusing to take the test when asked. Our argument is that he has a Fourth Amendment right where the government needs a warrant,” said U.S. Supreme Court Attorney Steven Grimshaw.

But Kathryn Keena, of the Dakota County Attorney’s Office, argued that requiring warrants in DWI cases would burden law enforcement.

The Justices’ focus shifted to why, as a practical matter, police can’t just go ahead and get a warrant if they want a DUI suspect to be tested. Kagan asked attorney Thomas McCarthy, representing North Dakota, to assume that police could get a warrant within ten or fifteen minutes of applying. If that were true, she queried, why exactly would the state have to forge ahead without one?

Breyer pointed out that Kagan’s hypothetical scenario is in fact reality in some western states. According to a brief filed by a group of criminal defense lawyers in support of the drivers, the wait time for a warrant is five minutes in Wyoming, and fifteen in Montana.

Justice Kennedy summarized the quandary facing the Court bluntly: “We find that modern technology allows, in some States, both sparsely populated and heavily populated, to get a warrant in fifteen minutes.” However, he continued, North Dakota and Minnesota are telling the Court that getting a warrant “takes too long.” In a thoroughly exasperated tone, Kennedy cautioned McCarthy that he was “asking for an extraordinary exception” to the warrant requirement.

Keep in mind:
In Heien Vs North Carolina, the US Supreme Court ruled that cops don't have to know the law, and police can stop drivers for doing something that isn't a crime if the officers have misunderstood the law.

in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test. The question is – can the State put someone in jail for refusing to consent to a search of their body? Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search? And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test? The answer to these three questions should be NO.

In November, 2015, the Hawaii Supreme Court ruled that its statute criminalizing refusal was unconstitutional and that consent obtained to submit to a breath test was involuntary. State v. Won, 361 P.3d 1195 (Haw. 2015). In February, 2016, the Kansas Supreme Court held its criminal refusal statute to be unconstitutional in violation of the federal and state due process clauses. State v. Ryce, — P.3d. —, 2016 WL 756686 (Kan. 2016).

Because the consent obtained in every breath test case is coerced and is not voluntary, every breath test should be suppressed. Because it violates due process to misadvise a person about the penalty for refusing a test, persons who fail a breath test in Maryland should not have their driver’s licenses or privileges suspended.

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