News You Can Use
by: Ryan • May 27, 2016 • no comments
This post includes some news out of the Oregon Supreme Court, as well as recent case law from around the country on blood draws and exigency.
First, the Oregon Supreme Court issued a press release this week, indicating it was granting review to State v. Swan, in which the questions presented are:
(1) Does asking a defendant to take a breath test constitute interrogation under Article I, section 12, of the Oregon Constitution?
(2) Does a suspect's consent to take a breath test and the resulting measure of his blood-alcohol content derive from an Article I, section 12, violation if the defendant invokes his right to counsel but the police still question him immediately preceding the request to submit to a breath test?
Second, here are some cases of note:
State v. Carter, 2016 Tenn. Crim. App. LEXIS 376
Overview: A trial court properly granted defendant's motion to suppress evidence obtained during a warrantless blood draw because he did not freely and voluntarily consent to the blood draw, and exigent circumstances did not create an exception to the warrant requirement. The implied consent law, Tenn. Code Ann. § 55-10-406 , did not operate as an exception.
HOLDINGS: [1]-The trial court properly granted defendant's motion to suppress evidence obtained during a warrantless blood draw because defendant did not freely and voluntarily consent to the blood draw, and the totality of the circumstances did not show that exigent circumstances created an exception to the warrant requirement of the Fourth Amendment and Tenn. Const. art. I, § 7 ; [2]-Becuase the arresting officer did not attempt to obtain a warrant before defendant's blood was drawn, an exception to the warrant requirement had to exist for the blood evidence to be admitted
Weems v. State, 2016 Tex. Crim. App. LEXIS 85 (May 25, 2016), found no exigency for this defendant’s warrantless blood draw where he ran from the crash of his car but was found 40 minutes later hiding under another car when that driver called the police. Defendant complained of back and neck pain and he went to the hospital first instead of to a magistrate’s office for advice on consent to a blood draw or the obtaining of a warrant.
- Although both this case’s record and that presented in Schmerber involved an alcohol-involved accident, the similarity of the two records end there. In Schmerber, the Court noted “where time had to be taken to bring the accused to the hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” This passage does not accurately describe the circumstances surrounding Weems’s blood draw. First, Deputy Bustamante testified that the hospital was only a “couple of minutes” away. So transporting Weems to the hospital did not necessarily make obtaining a warrant impractical or unduly delay the taking of Weems’s blood to the extent that natural dissipation would significantly undermine a blood test’s efficacy. Second, Bustamante was not alone charged with both investigating the scene of the accident and escorting Weems to the hospital for treatment. Deputy Shannon—Bustamante’s instructor—waited with Bustamante and Weems at the hospital until Weems’s blood was taken. Once the blood was drawn, Shannon left the hospital to place the blood sample in the evidence locker at the Magistrate’s Office for subsequent testing. Another officers’ presence or the “hypothetically available officer” that, in theory, could have secured a warrant in the arresting officer’s stead will certainly not render all warrantless blood draws a Fourth Amendment violation, nor do we suggest it is a circumstance that the State must disprove in every case to justify a warrantless search under an exigency theory. But this record establishes that Shannon was with Bustamante and Weems throughout the investigation and while they were at the hospital waiting for Weems’s blood to be drawn. On this particular record, Shannon’s continued presence distinguishes Schmerber from the present case and militates against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence.
