Key Supreme Court Decisions
Again, recent Supreme Court rulings have been tremendously helpful in this area, including Bullcoming v. New Mexico, which involved the confrontation clause issue, and allows defense attorneys to question those who were involved in the blood testing process and the preparation of the testing equipment.1 In Missouri v. McNeely, the court rejected the idea of per se exigent circumstances in relation to a warrant requirement.2 Simply put, your body eliminates alcohol from your blood system over time, which means that your blood alcohol content may be lower by the time testing is performed or higher depending on the circumstances. At the same time, the Supreme Court has ruled that you cannot simply obtain a blood sample without first ensuring that you have probable cause to obtain a search warrant, and law enforcement must get a magistrate to sign off on the warrant. Due to the McNeely ruling, we are given the opportunity to attack the search warrant based on the alleged probable cause in the affidavit. Ultimately, McNeely is the Supreme Court case that is causing many of these cases to get tossed, while Bullcoming is making it easier for the defense to force the prosecution to bring their key witnesses into court.3
While the prosecution has claimed that these decisions are causing them great inconvenience in many cases, the defense has benefited because we are often able to get test results thrown out, despite the fact that there is no video evidence to consider in many of these cases. Other times, there may be a video, and the “Disconnect Defense” is the hard to believe high blood result. It is certainly true that many people who get arrested for DWI do not look or act intoxicated. We should all be grateful that the Supremes finally placed the directives of the Bill of Rights and the US Constitution above law enforcement’s convenience.
Essentially, these decisions give defense attorneys more of a fighting chance in the courtroom. Unfortunately, many defense lawyers in this practice area do not really know what they are doing, they have not even read McNeely or Bullcoming. However, if you are dealing with a prosecutor who is aware of these decisions, they may be more willing to make you a better offer or reduce the charges in the case to something other than DWI. Remember, any DWI trial lawyer worth her salt knows not to count on the prosecutor opponent to read these cases with a defense slant. You cannot argue logically to a judge when you have not read and studied the case law. Read it, know it, understand it, and know the nuances of it well enough to counter the misdirection tactics practiced by some prosecutors.
For example, I once handled a blood test suppression hearing in which the nurse who originally drew the blood sample had died, but the prosecution was still trying to introduce the evidence. In this case, I got the arresting officer on the stand, and by asking him very specific questions, I was able to find out exactly what the nurse did during the draw. I was able to establish that the nurse may not have been properly licensed to draw blood. The prosecution brought in the supervising nurse who trained the deceased nurse, but she was not able to provide information with respect to what the deceased nurse actually did on the night of the blood draw. Also, I got the officer to admit that when the nurse cleaned the blood draw site she moved the cleaning materials back and forth a number of times; he did not know that the proper cleaning procedure involves cleaning the blood draw site in concentric motions and taking the contaminants away from the site, otherwise you are merely re-contaminating the site. In addition, when the officer talked about how the vials of blood were rotated to mix the chemicals, he demonstrated an incorrect method. Then the head nurse admitted that the method used could have caused contamination in the blood sample. When a witness has to repeat, “You will have to ask the nurse that question,” over and over during his cross-examination things are certainly going your way. The judge had heard that phrase enough times and said, “I am granting the defense’s motion; there is no way that we can know whether this blood draw was done correctly without the nurse who drew the sample here to testify.” Since their evidence was suppressed, the prosecutor then moved to dismiss the case against my client. My strategy has since been emulated by one of my colleagues, and it was also successful in that case.
1 See Bullcoming supra n. 1.
2 See McNeely supra n. 1.
3 See McNeely supra n. 1; see also Bullcoming supra n. 1.