"Chariotoflove" (chariotoflove)
06/27/2019 at 19:02 • Filed to: legal
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"Chariotoflove" (chariotoflove)
06/27/2019 at 19:02 • Filed to: legal | 0
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I just read !!!error: Indecipherable SUB-paragraph formatting!!! about the ruling in Mitchell v. Wisconsin saying police can order a blood test on an unconscious person without their prior consent. Of course, the article is written by Aaron Gordon as a screed against Republican judges trying to steam roll our civil liberties. But I’d like an analysis from our legal minds here in place of one from a blogger with an axe to grind.
Any of our lawyer contingent here want to venture an opinion?
!!! UNKNOWN CONTENT TYPE !!!
Maxima Speed
> Chariotoflove
06/27/2019 at 19:45 |
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Im no lawyer but if I may I’d like to offer some opinions (Ive only read the syllabus so far, may edit when I get done) . In the vast majority of cases I would argue strongly against non-consensual, no-warrant drawing of blood. However the preservation of evidence is a very compelling argument and I think the “ exigent circumstances ” of this particular instance makes sense. I’ll will check back after wards to see if I still agree with the findings and possibly more importantly to see if I agree with the precedents or opin ions expressed.
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Chariotoflove
> Maxima Speed
06/27/2019 at 19:53 |
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P reservation of evidence does seem exigent. I wonder if it was put that way in the majority opinion. If I understand correctly, they did say you have to right to explicitly revoke consent. However, you would have to be awake to do that.
DipodomysDeserti
> Chariotoflove
06/27/2019 at 19:53 |
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Here’s a better article on the decision. I don’t think it’s really a Republican thing. Historically, conservatives would have been against such a law. In fact, the Supreme Court ruled in 2013 (Missouri v. McNeely) that nonconsensual blood draws for DUI investigations were illegal without a warrant. Back then the vote was 5-4 with Scalia and Kennedy both in the majority. Even this time Gorsuch ruled against the practice.
What’s interesting is that Missouri v McNeely was decided in April 2013 and the next month the officer in the Mitchell v Wisconsin case went and ordered medical staff to take the blood of a non consenting individual, despite the Supreme Court ruling a few weeks prior that he needed a warrant. What’s concerning to me is that medical professionals would take the blood of a non consenting patient just because a cop told them to.
We live in interesting times.
Just Jeepin'
> DipodomysDeserti
06/27/2019 at 19:57 |
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I’m reminded of this atrocity.
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Chariotoflove
> DipodomysDeserti
06/27/2019 at 19:58 |
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That’s interesting. I’ll read that.
It doesn’t surprise me that a Supreme Court decision didn’t filter down to police or medical practice in that time frame. I’ve heard of lots of instances of local law enforcement or even local courts failing to apply precedent correctly and needing to be appealed. Then again, I’m not a lawyer.
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Just Jeepin'
> DipodomysDeserti
06/27/2019 at 20:02 |
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And regarding historical conservatism, it’s dead. It was already on life support when Trumpism drove a stake through its heart.
Now “conservative” means whatever liberals don’t want , because that must mean real Americans would want it.
Oh, and doing whatever it takes to hold onto power. That’s job #1.
smobgirl
> Just Jeepin'
06/27/2019 at 20:10 |
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First thing I thought of as well.
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DipodomysDeserti
> Chariotoflove
06/27/2019 at 20:20 |
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Yet here we are, mere mortals, reading about SC decisions hours after they’re made.
nermal
> Chariotoflove
06/27/2019 at 20:24 |
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Not a lawyer, but I can use a search engine. T here are a lot of weird parts here.
From the NPR story, which actually spells out the arrest much better than the Jellopicinic one :
The case, which was argued in April, involved a man named Gerald Mitchell who was found by police near his van along the shore of Lake Michigan. One of Mitchell’s neighbors had called police to report that he was drunk and suicidal, and that she had watched him get into his van and drive away.
After police found him walking near the lake, they administered a breath test and then drove him to a hospital for a blood draw. Mitchell passed out in the car, and by the time the group arrived at the hospital, he was unresponsive. At that point, police ordered hospital personnel to draw a blood sample. After that test showed his blood alcohol content to be 0.222% roughly 90 minutes after his arrest, Mitchell was charged and convicted of driving while intoxicated.
So, there is the question of how you can be charged with a DUI in the first place.
From the way I’m reading things, the police didn’t catch the guy driving, just wandering around while shitfaced and near his van. It is alleged by the neigh bor but can’t be proven that the guy drove drunk instead of driving sober and then getting intoxicated after the van was parked. I’d argue against a DUI and towards a drunk & disorderly on that grounds, although that’s not the issue at hand here .
Refus al to consent to a BAC test for suspicion of DUI is generally treated as an admission of guilt. Unconscious people can neither give nor refuse consent, so it can’t be argued that being passed the eff out is a refusal and thus admission of guilt . Given the choice of either having blood taken for testin while unconscious or being assumed guilty, I’d take the first option.
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Chariotoflove
> DipodomysDeserti
06/27/2019 at 20:24 |
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It’s a fine line. On the one hand, as educated citizens, we have a responsibility to learn about and critically evaluate the workings of our government. On the other hand, we have to recognize where our abilities and education end and when to turn to those with the tools to interpret what we can’t, and to even recognize who those people might be. That’s the challenge for modern education.
NKato
> Chariotoflove
06/27/2019 at 20:26 |
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In My opinion, the suspicion of intoxicated driving should qualify as probable cause for a blood draw.
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Maxima Speed
> Maxima Speed
06/27/2019 at 20:28 |
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Edit: Im with Justice Thomas on this one, in that the findings of the court are valid however the opinion expressed by Alito is faulty. Thomas’ opinion is the most logical and relies less on the “hypothetical” that Alito’s opinion seems to lean on. Here is the link directly to the source for anyone interested. Ive always loved reading Supreme Court cases and this is no exception. Some interesting stuff.
https://www.supremecourt.gov/opinions/18pdf/18-6210_2co3.pdf
BrianGriffin thinks “reliable” is just a state of mind
> Chariotoflove
06/27/2019 at 20:28 |
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The issue (to me) is whether or not the blood draws are even necessary in order to prove intoxication. In this instance, the individual failed the breath test, displayed obvious impairment (that should be caught on camera), and then passed out. What real benefit would the blood draw give here?
Can an exigent circumstance exist when the evidence isn’t necessary?
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Chariotoflove
> nermal
06/27/2019 at 20:31 |
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Agreed there’s a lot going on here. It seems reasonable that both the report of the neighbor and the breath test would qualify as probably cause. However, if no one could reasonably testify that the man drove intoxicated, then the public dru nkenness charge would seem more appropriate.
What I’m looking to see in a good legal analysis if the slippery slope contingent has anything to worry about police demanding blood draws any time they want.
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Chariotoflove
> NKato
06/27/2019 at 20:32 |
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That seems reasonable to me too. I’m wondering if that was a component of the “exigent circumstances” described as a rational buy the majority.
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Chariotoflove
> BrianGriffin thinks “reliable” is just a state of mind
06/27/2019 at 20:33 |
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I think Mr. McCoy could make a very strong argument to convict on those ground. I wonder what precedent says about that.
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nermal
> Just Jeepin'
06/27/2019 at 20:34 |
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There’s a minor yet yuuuuuge difference between the two incidents - The sticking point in the case you are referring to :
She said the officers needed either an electronic warrant or patient consent to draw blood from someone who is not under arrest .
In the case referenced in the SCOTUS ruling , the person was under arrest. If that unconscious-yet-under-arrest-for-DUI person were taken to the same hospital in UT with the same nurse, she would have taken the blood sample no problemo.
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nermal
> Chariotoflove
06/27/2019 at 20:49 |
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I think the key part is the fact that the person was unconsc ious, not the actual blood draw. If they were conscious and refused, the refusal would simply be treated as an admission of guilt.
The slippery slope concern from this should be to ask what else can the police do to an unconscious person? With or without a warrant?
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Chariotoflove
> nermal
06/27/2019 at 21:33 |
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Yes. That makes sense to me.
ITA97, now with more Jag @ opposite-lock.com
> Chariotoflove
06/27/2019 at 21:37 |
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I’m no lawyer, but I used to assist with the prosecution of DWI’s as a paralegal back in the day . I also went through a police academy. With the disclaimer that I’ve not yet read the actual opinion and only the NPR article, my take is the immediate impact of this ruling is more narrow than some of the coverage implies. In other words, right now this applies to Wisconsin and their implied consent law, and only in the circumstances of an unconscious driver suspected of DWI. An unconscious or otherwise injured driver (or other party to the accident), or damaged property blocking a road, creates some exigent circumstances different than a traffic stop for some other infraction or an encounter at a checkpoint. For all other cases, revert to that states implied consent law and its jurisprudence. Going forward, my read is that it would certainly allow states to adopt legislation allowing blood draws from unconscious persons.
In my state, the implied consent law states that a driver has consented to blood or breath test upon reasonable grounds to believe they have operated a vehicle under the influence. Withdrawal of the consent via refusal triggers an automatic administrative revocation of driving privileges and a criminal charge of aggravated DWI. State courts have long held that a warrant is required to draw blood after a refusal, or to see the toxicology screening results from a hospital blood draw of an injured driver.
All this hinges on probable cause. This is normally established via an articulable signs of intoxication that supply reasonable suspicion for the officer to launch an investigation of DWI and/or admission of ethanol consumption, FST’s with indicators of intoxication and then a breath test, or enough combination of these to convince a judge to sign a warrant. In practice, this warrant will be granted by the duty judge over the phone with at least one or two of the preceding, or in just about any circumstance involving property damage or injury.
This also tells you how not to get a DWI in this state... So long as one hasn’t hit anything or injured anyone (in which case you’re fucked because a warrant will be approved), if there is no admission of drinking (and no open container laying around), a refusal to take FST’s, a refusal to take a breath test and refusal to submit to a blood draw, any officer foolish enough to wake up the duty judge is going to be told to take a hike on that warrant request without any probable cause . The driver will be booked and charged with an aggravated DWI for the refusal, and the automatic suspension will happen, but they’ll make bail (or most likely released on their own recognizance if there’s no prior record) in the morning, and a few grand to a good attorney will usually win the administrative hearing on the revocation 10 days later, while the criminal charge will get pretty quickly dismissed for lack of evidence.
That Gorsuch dissented on this doesn’t surprise me. He has an established history of telling police they can’t pass go and can’t collect $200 without checking all the boxes and jumping through all the hoops first.
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Chariotoflove
> ITA97, now with more Jag @ opposite-lock.com
06/27/2019 at 21:47 |
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That’s useful. Thanks. So, is the report of drunkenness by the neighbor alone or in combination with the breath analysis enough probable cause? It seems plenty to me on the surface.
And despite the liberal shit talking on the FP about conservative nazi justices, it is my impression as well that most of them hold the Fourth amendment near and dear to their hearts.
Cash Rewards
> Chariotoflove
06/27/2019 at 21:50 |
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Either way, I'm sure the states would just work around it if it was really necessary. Virginia will not give you a driver's license without you agreeing to a breathalyzer if you get stopped. You sign at the time of application stating you understand that a refusal is an admission of guilt, so the court doesn't even have to make that argument. If it was amended to be "and/or a blood draw" I wouldn't bat an eye.
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Chariotoflove
> Cash Rewards
06/27/2019 at 21:54 |
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Yep, because despite what most people seem to think about the necessity of driving, it’s not considered a legal right. It’s a privilege issued by the state that the state can revoke.
They could make you check a box like a software EULA agreement.
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ITA97, now with more Jag @ opposite-lock.com
> Chariotoflove
06/27/2019 at 22:02 |
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I don’t know that the third-party report alone would be enough (and at trial it might well be subject to attack as hear say) , but I imagine that any non-zero breath test with it would get there.
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Chariotoflove
> Maxima Speed
06/28/2019 at 00:13 |
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I haven’t read the full opinion yet. But the description of Alito’s premise doesn’t seem to hold a lot of water to me. I agree Thomas’s reasoning makes much more sense on the surface. The dissenting opinions seem pretty compelling to me though, in that they note the state wasn’t using the exigent circumstances standard. There is a throwaway bit in the NPR article about how the WI Supreme Court ruling left open that interpretation. I want to know more about that.
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Chariotoflove
> Chariotoflove
06/28/2019 at 00:17 |
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Edit: it was.
BigBlock440
> nermal
06/28/2019 at 08:44 |
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It also says they gave him a breathalyzer at the scene , the blood test was just to confirm, so the argument was probably reasonable suspicion. I agree though about the DUI thing, I’m not sure how they can prove he drove there, but maybe he told them he did.