CO DUI case going to SCOTUS re: blood tests

[Deleted]

www.denverpost.com/news/ci_27085119/colorado-dui-case-sent-u-s-supreme-court


Colorado DUI case sent to U.S. Supreme Court, focuses on blood tests

By Jordan Steffen The Denver Post

Sunday, Dec. 7, 2014 - 12:01 a.m.


Jack Schaufele had a blood-alcohol level of nearly three times the legal limit when he struck an oncoming car. His blood was drawn without a warrant.
When Jack Schaufele cruised into the busy intersection during rush hour and slammed into an oncoming car, his blood-alcohol level was nearly three times the legal limit.

But a jury may never know there was alcohol in his system.

Arapahoe County prosecutors have asked the U.S. Supreme Court to overturn a decision by a state judge and the Colorado Supreme Court, which found that because the officer did not try to obtain a warrant before she ordered a blood draw on Schaufele, the results may not be presented as evidence. Thirteen other states filed a petition asking the U.S. Supreme Court to pick up the case.

If the high court takes up the case, their decision will have national implications. Granting the prosecutors' request will make it easier for authorities to take blood samples without a judge's approval in suspected DUI cases. Without a change in the law, blood tests that reveal drivers were above the legal limit — but were taken without a warrant — will continue to be excluded from trials.

"The question is when there are exceptions to search and seizure without a judge looking over the police officer's shoulder," said David Beller, president of the Colorado Criminal Defense Bar, who is not connected to the case.

Advertisement

Unlawful searches are protected by the Fourth Amendment and repeatedly fall at the center of heated debates, such as the New York Police Department's controversial "stop-and-frisk" practices. Neither prosecutors nor defense attorneys in Schaufele's case are denying that a blood draw is a personal search.

Instead, what's at question is when and how authorities make exceptions to the Constitution.

Around 7:15 a.m., on May 30, 2012, officers responded to a crash in a busy intersection in Greenwood Village, where Schaufele's Ford SUV collided with a Honda Accord and injured the driver. Officers said Schaufele, now 54, spoke with a "thick tongue" and seemed disoriented, which they reasoned could have been a result of being hit by the air bag or intoxication.

It wasn't until Schaufele arrived at the hospital that a different officer — the fourth person to have contact with him — smelled alcohol on his breath. The officer attempted to advise Schaufele about the blood draw, but was unable to do so because he was unconscious or sleeping.

She never attempted to obtain a warrant. Schau fele's blood was taken about an hour after the collision.

Schaufele, who has no prior DUI offenses in Colorado, now faces four counts, including vehicular assault and driving under the influence of alcohol. He has pleaded not guilty to all of them.

Daniel Foster, a private attorney representing Schaufele, said the two are eager for a resolution to the now 2-year-old case.

"We agree with the protections the Supreme Court has put into place as it related to the Fourth Amendment," Foster said. "We believe if the Arapahoe District Attorney is successful, that it will only negatively impact the Fourth Amendment rights of every citizen, not only in Colorado, but in the country."

Prosecutors are asking the Supreme Court to pick up an issue they addressed nearly a year and a half earlier.

In April 2013, the Supreme Court found that authorities must consider multiple factors and be able to properly explain why they did not obtain a warrant before doing a blood draw.

But in his dissenting opinion, Chief Justice John Roberts wrote that in suspected DUI cases, because alcohol levels are constantly decreasing in the blood stream, there should be an exception. Under his proposed rule, Roberts says that if an officer can reasonably determine there is not enough time to get a warrant, the officer is justified in drawing blood without one.

"The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost," Roberts wrote. "Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately."

Arapahoe County prosecutors are asking the Supreme Court to adopt Roberts' rule, something the Colorado Supreme Court declined to do in June.

Arapahoe Chief Deputy District Attorney Andrew Cooper, who is handling the prosecution's appeal, said the U.S. Supreme Court's previous decision has blurred the guidelines for police officers on when to do a warrantless blood draw.

"Having a clear rule will benefit everyone. It will benefit police, courts and suspects alike," Cooper said.

Cases like Schaufele's are not rare, and there are several pending cases in the 18th Judicial District in which the results of blood-alcohol tests done without a warrant are at question, Cooper said.

Fran Lanzer, executive director of Mothers Against Drunk Driving Colorado, said they have seen cases similar to Schaufele's across the country.

"Suppressing evidence sets a dangerous precedent making it difficult to prosecute fatal drugged or drunk driving, often resulting in a lack of justice for the victims," Lanzer said.

The Texas Court of Appeals reviewed the case of Antonio Aviles twice and handed down two different rulings. Aviles, who had two previous arrests for driving while impaired, failed three roadside sobriety tests before officers ordered a blood draw without a warrant.

The trial judge denied Aviles' request to withhold the results of his blood draw — which showed he was legally intoxicated — and he was eventually convicted and sentenced to two years of confinement. The Texas appeals court originally upheld the ruling to suppress the test results, but the U.S. Supreme Court found that without a warrant, the blood draw was unconstitutional.

Aviles' case was sent back to the appeals court, which agreed with the Supreme Court, and a new trial has been ordered.

In October, 12 attorneys general joined Wisconsin Attorney General J. B. Van Hollen in urging the Supreme Court to take up the Schaufele case. In their request, the attorneys general argue that the Supreme Court's previous ruling has created confusion for states and deciding the Schaufele case could provide much-needed guidance for investigators.

Lt. Jeff Turner, who oversees the traffic section of the Aurora Police Department, said his department works closely with prosecutors to obtain warrants when they can, but the Supreme Court's ruling was less than clear and left officers with a number of questions.

"It adds a number of things for us to think about when we already have a lot to think about," Turner said.

Since the high court's ruling, Aurora officers seek a warrant in all suspected DUI incidents that include vehicular assault or vehicular homicide, Turner said. But even in the perfect circumstance, it can take more than three hours for the warrant to come in. On average, it takes just under six hours.

In most cases, officers do the first blood draw before the warrant is obtained, Turner said.

But Beller worries that if the Supreme Court gives discretion to individual officers to decide when a warrant is obtainable, it will water down the oversight of people's rights.

"More and more discretion would be given to the government to determine an individual's private interests and less judicial oversight keeping checks and balances on the police," Beller said.

The Supreme Court could announce whether it will take the case as early as January.

Jordan Steffen: 303-954-1794, [e-mail] or twitter.com/jsteffendp

[ttt]

Hm. I don't know - doing the blood draw in this situation does seem pretty reasonable to me, and obtaining a warrant could be impractical considering the circumstances.

[Deleted]

Dec 7, 2014 19:12:06 GMT -5 ttt said:

Hm. I don't know - doing the blood draw in this situation does seem pretty reasonable to me, and obtaining a warrant could be impractical considering the circumstances.

I think this particular case can instantly garner support for using the blood test results, but I can't get behind it if overall it means the authorities can decide when it seems reasonable, and by whose judgement.

[penguingrrl]

I can see the reasoning, but couldn't the time needed to get a warrant alter the results of te blood test? Could that time sensitivity factor in?

[mouse]

Dec 7, 2014 20:06:58 GMT -5 @ladydisdain said:

Dec 7, 2014 19:12:06 GMT -5 ttt said:

Hm. I don't know - doing the blood draw in this situation does seem pretty reasonable to me, and obtaining a warrant could be impractical considering the circumstances.

I think this particular case can instantly garner support for using the blood test results, but I can't get behind it if overall it means the authorities can decide when it seems reasonable, and by whose judgement.

But couldn't they argue to exclude on an individual basis still? Then the defense attorneys could question the circumstances after the fact, but the information wouldn't be lost.

[ttt]

Dec 7, 2014 20:06:58 GMT -5 @ladydisdain said:

Dec 7, 2014 19:12:06 GMT -5 ttt said:

Hm. I don't know - doing the blood draw in this situation does seem pretty reasonable to me, and obtaining a warrant could be impractical considering the circumstances.

I think this particular case can instantly garner support for using the blood test results, but I can't get behind it if overall it means the authorities can decide when it seems reasonable, and by whose judgement.

Well, there are already exceptions to the warrant requirement, so it wouldn't be completely new ground. But I understand the wariness to add anything to those exceptions. 

[ESF]

Dec 7, 2014 20:06:58 GMT -5 @ladydisdain said:

Dec 7, 2014 19:12:06 GMT -5 ttt said:

Hm. I don't know - doing the blood draw in this situation does seem pretty reasonable to me, and obtaining a warrant could be impractical considering the circumstances.

I think this particular case can instantly garner support for using the blood test results, but I can't get behind it if overall it means the authorities can decide when it seems reasonable, and by whose judgement.

I'm here. I might be more sympathetic if I weren't in a fuck the police kind of funk right now. I just don't trust their judgment.

[onthemove]

Would it be possible to draw the blood, and then if a warrant was granted then test it, if nit it would be destroyed?

[wawa]

Wouldn't the obvious answer be to find a way to get the warrant process done faster?

[NewOrleans]

I think this is an amazing case from a legal standpoint. Fascinating. This one and the Elonis case that the SCotUS just heard.

I sort of want them to rule on the side of the officers to nail people because this particular instance is so much in need of due punishment. But then I don't like expanding police and governmental search authority. Particularly when it comes to bodily autonomy.

I am also wondering to what extent, if any, this relates to legal issues surrounding ownership of body parts/tissue. If you read the Immortal Life of Henrietta Lacks, you know what I'm talking about. IIRC, her family sued or wanted to sue maybe for some proceeds of the research that had stemmed from her cells, but then the court ruled that cells don't count as property. I wonder if there is any overlap at all in these legalities. That ruling terrifies me, actually.

[ttt]

Dec 7, 2014 21:00:26 GMT -5 onthemove said:

Would it be possible to draw the blood, and then if a warrant was granted then test it, if nit it would be destroyed?

I don't know - drawing the blood itself is pretty invasive, so I'm not sure I want the cops to go around forcibly taking people's blood and then being like, oh it's cool, we just won't use the results against you. I need them to have a very strong reason to be doing this in the first place, and some regulations placed on the circumstances under which they can do it. 

However, the immediate aftermath of a severe car crash that you just caused when your breath reeks of alcohol seems like an appropriate circumstance. 

[Velar Fricative]

I am trying to ignore the fact that drunk drivers make me angry and if I supported the death penalty, I'd probably support death as a punishment for drunk driving. ANYWAY...

Oof. This is tough. Why no talk about breathalyzers as an alternative? Are they not as accurate as I assumed?

[ttt]

Dec 7, 2014 22:08:01 GMT -5 Velar Fricative said:

I am trying to ignore the fact that drunk drivers make me angry and if I supported the death penalty, I'd probably support death as a punishment for drunk driving. ANYWAY...

Oof. This is tough. Why no talk about breathalyzers as an alternative? Are they not as accurate as I assumed?

I don't know if you can give a breathalyzer to an unconscious person. 

[Velar Fricative]

Dec 7, 2014 22:09:34 GMT -5 ttt said:

Dec 7, 2014 22:08:01 GMT -5 Velar Fricative said:

I am trying to ignore the fact that drunk drivers make me angry and if I supported the death penalty, I'd probably support death as a punishment for drunk driving. ANYWAY...

Oof. This is tough. Why no talk about breathalyzers as an alternative? Are they not as accurate as I assumed?

I don't know if you can give a breathalyzer to an unconscious person. 

Oh shit, I missed the part where he was unconscious. Nothing to see here, never mind, that's the wine talking!

[starlily]

Dec 7, 2014 22:08:01 GMT -5 Velar Fricative said:

I am trying to ignore the fact that drunk drivers make me angry and if I supported the death penalty, I'd probably support death as a punishment for drunk driving. ANYWAY...

Oof. This is tough. Why no talk about breathalyzers as an alternative? Are they not as accurate as I assumed?

They are fairly accurate, but blood tests are more accurate, with a smaller margin of variance.

And as pp pointed out, a breath test can't be performed on an unconscious or seriously injured person.