In a 6-1 ruling, the Kansas Supreme Court ruled that criminalizing the refusal of the blood-alcohol test during a traffic stop is unconstitutional. The court found that it violates the 4th Amendment to the United States Constitution prohibiting unreasonable search and seizures by the police during these traffic stops. The Court found that a person has a constitutional right to refuse such searches and not be held criminally liable for refusing the breathalyzer test. This decision could reverberate and cause sweeping reform to DUI laws across the country.
Benjamin Franklin wrote, “Those who give up their liberty for more security neither deserve liberty nor security.” That statement strikes at the heart of the recent dispute between Apple and the FBI over iphone access in a criminal investigation. In that dispute, the FBI wants Apple’s help to hack into an iphone used by one of the San Bernardino shooters. In the past, Apple has helped the FBI in criminal investigations in bypassing a built-in security system on one of its phones. This time, the phone used a later model, and it does not contain the built-in security system; therefore, the FBI is mandating that Apple help it hack into one of its own phones. Apple has refused citing numerous privacy concerns and the dangerous precedent this sets. The stage has been set for an epic legal battle between the titans of the tech age and the FBI.
This month Hollywood Presbyterian Hospital disclosed that hackers infiltrated its computer system, and they infected them with malware making the computer system inaccessible. The hackers originally demanded 3.4 million to remove the malware to give control back to the hospital. Although not paying the initial demand, The hospital did take the extraordinary step of capitulating and paying a $17,000 ransom to the hackers. In true cyber fashion, the ransom was paid in Bitcoins, a cyber currency.
Recently, congress passed a law creating the “U-Visa” program which provides legal status to illegal immigrants who are victims of crimes such as sexual assault or domestic violence and other serious crimes. The purpose is to provide police with an added tool to protect victims and encourage witnesses who are residing here illegally to cooperate the police. Given the rise of illegal immigrants to the United States, the U-Visa program is great program to help those least likely to help themselves due to their legal status.
As criminal defense lawyers, we’ve all been there. A client with little to no defense while facing serious charges. You reach back into the file, re-read the entire record, and hope something will jump out at you in hopes of something to help your client. I am sure a similar scenario played out for the criminal defense lawyer representing Ethan Couch in Texas several years ago. On June 15, 2013, Couch, 16 years old at the time, was partying and drinking with his teenage friends in Burleston, Texas. He and his friends then decided to leave the house, and Couch opted to drive them in his parents’ pick-up truck to another location across town. Couch was intoxicated and, with about 6 of his friends in the pick-up truck, began speeding on a narrow two lane road. He weaved off the road, and stuck several park cars and plowed into four pedestrians on the sidewalk. All four of the pedestrians were killed and many others seriously injured.
The United States Supreme decided this past week to hear cases stemming out of North Dakota and Minnesota concerning the constitutionality of criminalizing the refusal of breathalyzer tests. The legal issue in question concerns law enforcement’s potential infringement of the Fourth Amendment right to unreasonable search and seizure under the United States Constitution when police criminalize a suspect for refusing the breath test during a DUI stop. The Supreme Court has ruled in general that the police cannot search a driver or vehicle upon arrest without a warrant unless it is for their own personal safety or to preserve evidence. Challengers to this law look to the Supreme Court’s 2013 decision holding that police could not conduct blood tests without a warrant.
On December 9, 2015, Tatiana Duva-Rodriguez, who is licensed to carry a concealed weapon, discharged her sidearm at a shoplifters’ getaway car at a Home Depot parking lot in Detroit, Michigan. She saw a store security guard chasing a suspect who was pushing a cart filled with merchandise who then entered a getaway car and began to speed off. Duva-Rodriguez then fired her weapon at the car’s wheel thereby impeding the suspects escape. Duva-Rodriguez later pled no-contest to reckless discharge of firearm and received a probationary sentence mandating that her license to carry to a concealed weapon be revoked.
Recently, a Floridian woman was live streaming herself driving intoxicated. She says at one point “I’m so drunk” and “let me see if I can make it home without a ticket” on the live stream Periscope App on which other individuals can comment. While on this application, an officer logged on to it and located her car. She then failed the field sobriety test. She was ultimately arrested and given $500 bail.
In recent news, an Illinois man, Joshua Spudich, pled guilty to aggravated driving under the influence and was sentenced to 11 years in prison by Kane County Judge Susan Clancy Boles. In his system, he had a mixture of five different drugs when he got behind the wheel. He then veered out of his driving lane into oncoming traffic striking a motorist which resulted in that victim’s death. Spudich attributed the incident to him taking depression medication prior to him driving. This case highlights the dangers of going behind the wheel while impaired. In representing defendants in DUI cases, the typical case involves a routine traffic stop followed by an officer’s suspicion that the driver is under the influence. That suspicion triggers the officer’s duty to conduct a field sobriety test and then ultimately a breathalyzer to determine the driver’s blood alcohol content. In New Jersey, there are strict guidelines issued by the Office of the Attorney General as to the specific procedures that must be followed in order to ensure that the officers are accurately assessing an individual’s fitness to drive. The end result is often an arrest followed by municipal court charges that result in some form of a license suspension.
This past week the New Jersey Supreme Court has reversed itself from its prior ruling imposing greater restrictions on law enforcement conducting searches of automobiles. In its 5-2 decision, the Supreme Court relaxed this prior precedent. Under the prior decision, authorities could conduct warrantless searches if “exigent circumstances” existed. An exigent circumstance is, in lawyer legalese, is an emergency or the need to act fast in order to preserve evidence. For example, if a police officer hears screaming like someone is in distress in home, the police officer on the street does not need to obtain a search warrant from a judge to enter the home; rather, the law provides that he can enter the home without the warrant due to the emergency, i.e. the woman screaming.