Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
Florida’s DUI defense attorneys should know that the United States Supreme Court heard oral argument in a DUI blood case on January 9, 2013. In Missouri v. McNeely, SC 11-1425, the question presented is: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
Although the Palm Beach Post published a brief report on the arguments, a more thorough discussion of the oral argument can be found at SCOTUSblog. After reading the SCOTUSblog discussion, it seems that the Justices may be leaning towards requiring a warrant before a blood draw can be taken, except in exigent circumstances. Here’s a few paragraphs from SCOTUSblog:
Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court. Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.
A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail. “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?” That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion. And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.
Koester [also] learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument. Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon. “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.
Given the tenor of the Justices’ questions at oral argument, this case has potentially huge implications for Florida’s Implied Consent law. Florida’s DUI defense and criminal appeals attorneys should stay tuned. To read a transcript of the oral arguments, click here. The audio recording should be available at the end of the week, on Friday, January 11, 2013. The general page for links to the US Supreme Court audio recordings can be found by clicking here.
Last week, the Florida Supreme Court issued two opinions which are important for different reasons. The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State. The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.
If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing. If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop. (I remember having to do that fairly often when I was a prosecutor in Broward.) Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore. It’s not a difficult or long opinion to read, so I won’t bother to rehash it here. The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.
Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers. In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion. Justice Lewis stated:
The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts. As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22. Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review. See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district. Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected. See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied). This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.” Nader, slip op. at 29 (Lewis, J., dissenting).
Bowers, SC09-1971, slip op. at pg. 15-16 (Lewis, J., dissenting). Justice Lewis also complains that the Bowers majority failed to recognize such jurisdictional issue.
Don’t get me wrong. I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest). However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.
1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR REFUSING TO TAKE ANY TEST?
2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT’S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?
Nader, SC09-1533, slip op. at pg. 2. The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).
If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases. However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review. As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.