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Birchfield and Strieff

bear.jpgThis is going to be my only blog post of the week.  I've got a brief due in the court of appeals on Friday and three in the Ohio Supreme Court in the next two weeks, and I'm going to be in trial most of this week.  Plus, my work on a cure for cancer is taking up a lot of my time, as is my marathon training, given that I've had to add knowing how to ward off bear attacks to my skill set for the latter. 

Marathon training, that's a good one.  I get tired driving twenty-six miles.

Anyway, I wanted to touch on a couple things today:  the Supreme Court's decision last week in Birchfield v. North Dakota, and the potential impact of that and Utah v. Strieff, a case decided last Monday, in Ohio.

A few years back in Missouri v. McNeely (discussed here), the Court held that a warrant was needed for a blood test of a suspected drunk driver.  All states have implied consent laws, which provide that someone driving on the highways consents to being tested for blood/alcohol levels if he's stopped for drunk driving.  Most states allow admission of evidence of the refusal, some increase the penalty for conviction of OVI if there's been a refusal, and some make refusal a separate criminal charge.

Birchfield was actually three companion cases, all involving various state implied consent laws which imposed a criminal penalty for refusing a test.  Birchfield had been stopped for drunk driving, refused a blood test, and was convicted of a misdemeanor violation of the refusal statute.  Bernard refused to take a breath test, and the result was the same.  Beylund was taken to a hospital, and agreed to a blood test when told that a refusal would result in his license being suspended.

So what happens?  Birchfield's conviction is tossed out:  you can't charge someone for refusing to undergo an unconstitutional search.  Bernard isn't as lucky; the Court decides that a breath test is a minimal intrusion - no more than blowing up a party balloon - so no warrant is necessary, and a defendant can be charged with a crime for refusing to undergo one.  The state supreme court had upheld Beyland's conviction, concluding that Beyland's consent was voluntary on the erroneous assumption that the state could compel the blood tests, so that case goes back to the state courts for a re-evaluation of his consent.

How does that impact Ohio?  Ohio law doesn't make refusal a separate charge, but if you refuse a test and you've got one or more previous OVI's you get double the mandatory jail sentence, depending on how many priors you've got, and over what time period.  You also get your license suspended if you refuse.  (And Ohio lets the cops get downright medieval when it comes to that:  under the statute, an officer can take "all reasonable means" to procure a blood test, including holding you down while the nurse jabs you with a needle.)  Basically, all that goes away in the case of a warrantless blood test, and the license suspension is probably out, too, in light of the result in Beylund's case.  But there's no problem imposing additional time, or suspending a license, for refusal to take a breath test.

One more note.  In the opinion, the Court concludes that taking a breath test isn't any more intrusive than taking a swab of the inside of the cheek for a DNA test, something they decided in Maryland v. King, upholding Maryland's practice of taking DNA swabs from defendants arrested for felonies for inclusion in the DNA database.  It's customary for the police here to get a warrant before taking a swab.  Maybe they won't anymore. 

On to Strieff.  As we discussed last week, Strieff held that even if an initial stop is unlawful, if the defendant has an outstanding arrest warrant, even for a traffic violation, anything discovered during the search incident to that arrest comes in.  Initially there was some thought that this would have a lesser impact in Ohio, since we don't ordinarily allow arrests for minor misdemeanors.  But that's for warrantless arrests; if there's a warrant out for you, it could be for drunk and disorderly, and the cop can still arrest you for it.  The big concern is that this could be the Next Big Thing for cops:  stop someone they think is suspicious, even if the suspicion isn't a reasonable one, and trust that there'll be an outstanding warrant for them.  It's not as unlikely as it sounds; I can't tell you how many cases I've seen where the stop became an arrest because of an outstanding warrant, usually on a traffic matter.

There's one possible line of attack:  arguing the Ohio constitution's search provision, Article I, Section 14, instead of the 4th Amendment.  Although there are older opinions from the Ohio Supreme Court stating that the protections offered by the two provisions are co-extensive, the court has been trending away from that in recent years, as they did just last year in State v. Brown (discussed here).  It's not a sure winner by any stretch, but Strieff makes it a sure loser if you argue the 4th Amendment.  I've been telling you for years to make sure you include a reference to the Ohio Constitution in your motions to suppress, and if you haven't done that yet, it's a good time to start.

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