Missouri v. McNeely

The United States Supreme Court faces questions that cover the entire spectrum of legal issues, so it’s not often they publish a holding bearing directly on DUI law. But that’s exactly what they did in April when Missouri v. McNeely was decided.

Tyler McNeely had been stopped by Missouri police on the allegation that he was speeding and had crossed the center line. He declined to take a breath test, was arrested, and taken to a hospital for a blood draw. The officer did not obtain a warrant for McNeely’s blood, nor did he even attempt to get one. McNeeley did not consent to the blood draw, in fact when he was asked he refused to give his consent. Nevertheless, a sample was taken which showed a BAC of 0.154 (well above the legal limit of 0.08 in Montana and Missouri). He was charged with DUI under Missouri law.

McNeely challenged the results of the blood draw, arguing that they were taken in violation of the constitution (specifically his Fourth Amendment rights) and should therefore be suppressed under the exclusionary rule. The trial court agreed, finding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The Missouri Supreme Court affirmed that decision.

The issue, as framed by the U.S. Supreme Court, was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. Justice Sotomayor, writing for the majority, held that exigency in this context must be determined case by case based on the totality of the circumstances.

There are a few main facts which are vital to understanding this decision: 1) McNeely’s blood was taken against his will; 2) McNeely’s blood was taken without a warrant; 3) The only justification offered for not obtaining the warrant was that any alcohol in McNeely’s blood was dissipating with his natural metabolic processes.

The Fourth Amendment to the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” However, there are also a limited number of legally recognized exceptions to the warrant requirement. This means that if the police are going to search you or seize your property (including your blood) they must either obtain a warrant or an exception to the warrant requirement must exist. In McNeely’s case, it was undisputed that no warrant had been obtained or even requested. So, did an exception apply?

Remember, the only warrant exception the police claimed in McNeely’s case was that the alcohol was dissipating from his blood over time. This, the police thought, fit the warrant exception known as exigent circumstances. That exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. The Supreme Court offered examples such as a situation where the police engage in “hot pursuit” of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause. They all share the common fact that there was a compelling need for official action and no time to secure a warrant.

The police argued that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. Here, the police are saying that because BAC rates go down over time, there is always an emergency. The Supreme Court disagreed, but on a specific point: the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The decision essentially said you need something more. In McNeely’s case, the police only relied on the fact that alcohol dissipates in the blood. They didn’t even try to obtain a warrant. They didn’t even try to justify not obtaining a warrant. They just executed a warrantless seizure of McNeely’s blood. Going forward, this is forbidden. Exactly how hard the police have to try to obtain the warrant, and exactly what kind of justification for not obtaining a warrant will be accepted are questions for another day. But for now, the police need something more.

State v. Giacomini

A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

Probable Cause Determinations in MT DUI

In State v. Haller (2013 MT 199), Dwayne Haller challenged the procedure which lead to his conviction for felony DUI. He argued that he was entitled to a preliminary examination within 48 hours of his arrest. Because a preliminary examination was not held within 48 hours of his arrest, Haller believed, the State had to prove that the time that it took for him to receive a probable cause determination was reasonable. The Montana Supreme Court disagreed, and held that he was conflating the two procedures that require a finding of probable cause. The Court provided the following analysis:

Section 46–6–311(1), MCA, provides that “[a] peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.” To ensure that the officer correctly determined that there was probable cause to make the arrest, the Fourth Amendment gives a criminal defendant who has been arrested without a warrant the right to a prompt probable cause determination by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 124–25 (1975).

Section 46–11–110, MCA, also gives a defendant a right to a judicial determination of probable cause before the prosecution can be commenced in justice court. A sworn affidavit submitted with a complaint is a proper basis for the probable cause determination required by the Fourth Amendment. State v. Brown, 1999 MT 339, ¶ 15, 297 Mont. 427, 993 P.2d 672.

Following all arrests, an initial appearance must be conducted before the nearest and most accessible judge without unnecessary delay. Section 46–7–101, MCA (emphasis added). The Montana Supreme Court has noted that this statute, together with the requirement to inform defendants of their rights set out in § 46–7–102, MCA, is designed to “ensure that a criminal prosecution begins promptly and with a recognition of the defendant’s essential rights.” State v. Strong, 2010 MT 163, ¶ 11, 357 Mont. 114, 236 P.3d 580. In addition, before leave to file an information in district court can be granted, a separate determination of probable cause must be made.

There are three different procedures by which the State can obtain the requisite probable cause determination before filing charges in district court: 1) a preliminary examination; 2) direct application to the district court for leave to file an information; or 3) indictment by a grand jury.1 Section 46–10–105, MCA. The State may utilize whatever process it wishes; a defendant is not entitled to any specific procedure. State v. Farnsworth, 240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). Montana has adopted a flexible standard that requires the district court determination to be made within “a reasonable time” after the defendant’s initial appearance. State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048 (1980); see also § 46–10–105, MCA.


Montana DUI: License Suspension

Montana law provides for immediate and automatic suspension and revocation of a driver’s license if you refuse to comply with a valid request for a Alcohol Content (AC) Test. This could be either a Portable Breath Test (PBT) at the scene, or a more technical and accurate test at the station, or a blood test later. If you refuse to comply with any of these tests your license will automatically be taken away. If it is your first refusal, you will lose your license for 6 months. A subsequent refusal (within 5 years of the past refusal) results in losing your license for one year. You’ll be given a temporary license for 5 days.

My advice is to use those 5 days to find a good DUI Lawyer. In Montana, the suspension/revocation under the implied consent law can be appealed to District Court with the hope of reinstating your license. This MUST be done within 30 days of losing your license. Do not wait. Go immediately to discuss your options with a lawyer, because it will take some time for your DUI attorney to get things in order before the proper documents can be filed. I offer a free consultation for DUI matters, so there’s really nothing to lose by picking up the phone and scheduling a consultation.

There are four issues on appeal in a case like this: 1) whether the officer had “reasonable grounds” to believe that you were driving under the influence; 2) whether you were under the age of 21 and placed under arrest for DUI; 3) whether the officer had “probable cause” to believe that you were driving under the influence and part of an accident resulting in property damage, personal injury, or death; and 4) whether you actually refused to submit to the test.

One thing to remember is that the officer MUST inform you of the consequences of a refusal to comply with the test. Most Montana police departments that I am aware of now have a standard form that you sign when you refuse to participate in the test. It lays out the consequences of a refusal. ALWAYS read something carefully before signing it. You never want to be in front of a judge claiming you signed something without understanding it or reading it. This applies throughout your life, and especially if you have been stopped for suspicion of DUI (or any crime).

Finally, remember that once you refuse the test – you can not take it back. Under Johnson v. Motor Vehicles Division and Hunter v. State the Montana Supreme Court has clearly said that a subsequent attempt to withdraw a refusal is no fix. Always, always, always think before you act.

If you’ve been charged with DUI and had your license revoked for refusal to give an Alcohol Content Test, call me today to discuss your options. You can reach my office at 406-752-6373 and schedule a free consultation.

Montana DUI Per Se

A traditional DUI is the operation of a motor vehicle while impaired by alcohol or drugs. This is a relatively subjective assessment with no bright line rule. Determining whether you are “impaired” requires an assessment of your skills that is difficult to make and even harder to prove. The results of Field Sobriety Tests are used to make an assessment of a person’s skills. But the results of the tests are subjective and can be argued about. This makes the state’s job tougher when trying to convict citizen’s accused of DUI. In response to this, a DUI per se was created.

A per se violation is based on a legal assumption. The DUI law in Montana assumes that if your blood alcohol level is at .08 or above, you are too impaired to safely operate a vehicle. It makes no difference whether you are actually impaired, it only matters what level of alcohol is present in your blood according to a test. A Montana DUI per se is a strict liability offense. The state does not need to prove that you were a danger behind the wheel, only what your B.A.C. was at the time.

Proving B.A.C. generally comes down to the result of a breath or blood test administered by a police officer. As I’ve discussed on here before, these results can be skewed by any number of factors, and despite what they would have you believe on TV: are not always accurate. This is why discussing your situation with a Montana DUI attorney is so important, especially one with experience. A per se violation is very difficult to defend unless your attorney is familiar with the technical requirements of Field Sobriety Tests, Particularized Suspicion, and Breathalyzers.

DUI Drugs in Montana

Montana DUI law prohibits operating a vehicle “under the influence of alcohol or drugs.” While we usually think of a DUI as involving alcohol, in Montana it could also be drugs (even if you have a prescription). Any substance that impairs your ability to safely operate a vehicle can lead to a charge of Driving Under the Influence. Montana law specifically states that a prescription for a drug is not a defense to DUI. Obviously, a combination of alcohol and drugs can also lead to DUI charges.

Obviously, charges and conviction for DUI Drugs involve a slightly different process than when the charges simply involve alcohol. While a breathalyzer can supposedly detect the amount of alcohol in a person’s blood, it does nothing for narcotics. Instead, a blood test is required to establish the amount of a drug in a person’s system.

Likewise, police officer’s often rely on the “smell” of alcohol on a person’s breath to establish the probable cause necessary to extend a traffic stop. Prescription drugs give off no odor, so the officers have to rely on other indicators to establish a reasonable suspicion. These indicators are often subtle and very subjective, giving your attorney grounds for challenges at trial.

Charges for DUI drugs are complicated and technical. As with all criminal charges, it is a good idea to obtain legal guidance specific to your situation. If you have been accused of Driving Under the Influence of Drugs in Montana, I offer a free consultation to discuss your situation. Please call today to schedule an appointment.

Prescription not a defense.

State of Montana v. Larson

Joshua Larson was charged with Driving Under the Influence in District Court in Missoula, Montana. He appealed his DUI/DWI conviction to the Montana Supreme Court, who affirmed the District Court.

While making a traffic stop in Missoula, officers witnessed Larson squeal his tires through an intersection. One of the officers followed Larson, observed that he had over-sized tires and no mud flaps, and initiated a traffic stop. Larson slurred his speech, which lead the to the officer requesting that he perform Field Sobriety Tests (FSTs). The tests produced a “sub-par” performance, leading the officer to request a breath test, wherein Mr. Larson blew a .023 (well below the legal limit). The officer asked to search Larson’s vehicle because he thought Larson might be under the influence of drugs. At that point Larson went to his truck and retrieved a bag of marijuana and a pipe which he admitted to smoking an hour before the stop.

Larson moved to suppress all evidence and statements made during the roadside investigation. He argued a lack of particularized suspicion to justify the stop, a lack of particularized suspicion to justify the FSTs, and that Miranda warnings were required prior to his retrieval of the drugs. The Montana District Court found sufficient particularized suspicion to justify the initial stop, and subsequent evidence justified the continued detention.

The Montana Supreme Court ruled that because Larson screeched his tires and revved his engine continually, while crossing a busy intersection, and had a mud-flap violation these two events, along with rational inferences, reasonably warranted the stop.

Likewise, the Montana Supreme Court ruled that the FST was warranted based on the particularized suspicion for the stop combined with the subsequently discovered evidence (like Larson’s slurred speech, and other factors in the opinion).

Montana DUI Preliminary Screening Tests

If an officer has stopped you (because he had a particularized suspicion) he will then watch for any indications that you are under the influence of alcohol or drugs. Assuming that there are some indications, the officer will then perform a Preliminary Screening Test. These tests come in a number of different formats, and carry a different amount of weight in making a determination of whether to perform an arrest for DUI.

We’ve discussed Montana field sobriety tests before. These are one of the preliminary screening tests that officers use to determine whether you have been driving under the influence of alcohol or drugs. A videotape of the tests is admissible even if no Miranda Warnings have been given. And successfully performing the field sobriety test does not mean you can’t still be arrested for DUI. Montana courts have ruled that the tests are not required to establish probable cause for an arrest and that probable cause may still be established with other evidence.

The horizontal gaze nystagmus (HGN) test is really a field sobriety test, but common enough to warrant its own discussion. This is when an officer holds something in front of your face and moves it left and right asking you to follow it with your eyes. The officer is trained to watch the way your eyes move to determine whether you are impaired by alcohol. Although it seems simple enough, properly administering the HGN test requires a great deal of specialized knowledge, and before the results of one can be admitted into court, the evidence must show that the arresting officer was properly trained to administer the test and that he was administering it in accordance with that training.

The Preliminary Breath Test (PBT) is a portable breathalyzer that officers use at the scene of a traffic stop to establish probable cause for DUI arrest in Montana. If the officer has a particularized suspicion that a driver has consumed alcohol, Montana law allows him to request a PBT. The law is similar to the implied consent law, in that a refusal to take the PBT may result in the suspension or revocation of the driver’s license or privilege to drive. However, the results of these tests are not substantive evidence of the amount of alcohol present in a person’s body. They just provide an estimate of alcohol concentration for the purpose of establishing probable cause.

Particularized Suspicion in Montana DUI Cases

In order to stop a vehicle in Montana, a police officer must make a determination of particularized suspicion. This is based on what the officer has observed and must be articulable facts that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Officers cannot stop you on the road for no reason.

In order to show sufficient cause to stop a vehicle, the burden is on the State to show: 1) objective data from which an experienced police officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity. State v. Gilder, 1999 MT 207. Objective data means things that actually happened. A “hunch” is not objective data unless the officer can point to facts that brought about the hunch. But alone it is insufficient.

Particularized suspicion is less than reasonable cause or probable cause. Montana law does not require the officer have probable cause in order to stop a vehicle.  State v. Sharp, 217 Mont. 40 (1985). While this tells us that particularized suspicion is not probable cause, it does not give much information on what it is.

Particularized suspicion involves the totality of circumstances, and the court should consider the quantity, or content and quality, or degree of reliability of the information available to the officer. State. v. Pratt, 286 Mont. 156 (1997).

A few examples of situations that have been sufficient to create probable cause:

A citizen report of a DUI, the reported vehicle observed half-way off the road, and a vehicle pulling away when an officer approached.  State v. Sharp.

One swerve into the wrong traffic lane, in the vicinity of bars around closing time.

Two anonymous phone calls corroborated by officers and evidence of excessive speed. State v. Shaffer, 227 Mont. 221 (1987).

The Preliminary Breath Test in Montana

When a driver suspected of DUI is stopped in Montana, the officer will determine whether there is a particularized suspicion to believe that the driver is intoxicated. If the driver has such a suspicion, he may ask the driver to submit to a preliminary alcohol screening test (PAST). This is what is commonly called the breath test, or “blowing.”

By driving on the roads of the state of Montana, you have consented to such a test. Under Montana statute 61-8-409(1) “a person who operates or is in actual physical control of a vehicle upon ways of ths state open to the public is considered to have given consent to a preliminary alcohol screening test of the person’s breath.”

Of course, you can refuse the test – but doing so results in the suspension of your license for up to a year. But, you can request a hearing to challenge the suspension where the court will examine whether the officer legitimately had a particularized suspicion that you were driving while under the influence of alcohol. The court will also examine whether you actually refused to submit to the test.

The Montana Supreme Court has ruled that only a particularized suspicion that the driver was under the influence of alcohol, and does not need the higher standard of probable cause. State v. Toth, 317 Mont. 55 (2003).

Also, evidence from this test are not substantive evidence of the amount of alcohol present in a person’s body. Instead, it is just an estimate of alcohol concentration for the purpose of establishing probable cause to believe that person is under the influence of alcohol prior to making an arrest. State v. Strizich, 286 Mont. 1 (1997).