Today the United States Supreme Court issued its Opinion in three consolidated cases that dealt with states that criminalize anyone who is arrested for a DUI and refuses to submit to a blood or breath test (Birchfield v. North Dakota).
The short version of it is that the Court did not find a problem with state laws that make it a crime to refuse a breath test. The Court found that a breath test falls within the right of law enforcement to conduct a search subject to arrest and that one’s right to bodily integrity or to avoid self-incrimination were not significantly affected enough to overcome this.
However, the Court found that blood tests are a significant invasion of one’s right to bodily integrity and privacy, and that states could not require warrantless blood draws in DUI cases, except in exceptional circumstances.
Currently, Illinois does not criminalize breath test refusals, however, it does impose a license suspension of one year for first offenders and three years for repeat offenders who refuse to submit to breath, blood or urine testing subsequent to a DUI arrest. However, now that the Supreme Court has ruled that it is permissible, perhaps that will change.
Personally, I feel that it is deep within our traditions to say no to government, to insist on our bodily integrity, to be free of unreasonable searches and seizures and to have the right to refuse to provide evidence that may incriminate ourselves. I feel that this opinion, like so many when it comes to DUI, ignores our legal history and tradition, and ignores the important Constitutional protections that makes America the freest nation in the world, merely to make it easier to convict DUI defendants. This approach is short-sighted. I hope that our Illinois legislators don’t take this opportunity to further chip away out our freedom and liberty.
In a new decision, the Illinois Appellate Court, Second District, affirmed a ruling from a DeKalb County case, rescinding a DUI suspension and suppressing evidence, after police entered a man’s home, without a warrant or obtaining consent to enter, to investigate a a report of a man acting confused and disoriented which lead to the discovery of a one car accident. The case is People v. Swanson, 2016 IL App (2d) 150340.
In summary, the evidence showed that the defendant left a tavern and got into an accident on a cold, snowy and icy night. He sought shelter at a nearby home, but the homeowner would not let him enter and instead called the police. The defendant ran off, and ultimately arrived at home, where, according to his wife, he consumed alcohol to “warm up.” Prior to his arrival at home, police had responded to the homeowner’s call, discovered the smashed vehicle, and visited the defendant’s home and spoke to his wife. She was asked to call the police when he arrived, which she did, but when police arrived, she did not let them enter and told them that she was taking care of her husband. The police entered anyway and arrested him for leaving the scene of an accident and DUI.
The case upheld a longstanding proposition of law that police cannot enter a person’s home without a warrant or without consent, unless there are exigent circumstances.
Lesson: remember your rights. Because this man’s wife insisted on them, the case against him is history.
In Illinois, the only consequence for a DUI suspect who refuses to take a blood, breath or urine is a license suspension which is longer than the suspension he or she would receive had he or she taken and “failed” the test (and there is no suspension for someone who “passes” the test).
However, thirteen states make it an additional crime for a person to refuse such a test. The Minnesota law was recently struck down but the case, and two others, have been taken up by the United States Supreme Court.
In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota. Thirteen states make it a crime to refuse to take a drunk-driving test….
The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver. The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.
In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration. It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving. In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving. The cases to be reviewed by the Court involve either a blood or breath test.
Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision. And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling. The Supreme Court, at its private Conference on Friday, considered thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.
The three apparently were chosen because they involve different legal scenarios: in two of the cases, the individuals were convicted for declining to take a test — one a blood test, the other a breath test. In the third case, the individual was convicted of drunk driving after he refused field sobriety tests and then was taken to a hospital for a blood test against his wishes. The Court will be reviewing that individual’s punishment for refusing the field tests — a two-year suspension of his driver’s license — instead of the jail time and fine he got for the drunk-driving conviction.
The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota. The three will be consolidated, and will be heard together at a one-hour hearing.
I just wanted to share a new podcast called Amicus from Slate magazine. The first episode was just released.
The podcast is hosted by Dahlia Lithwick and will concentrate on the United States Supreme Court. In the first episode, there is a discussion of the Court’s denial of cert in the gay marriage cases, and a case about that raises the issue of whether an Arkansas prisoner has a religious right to grow a beard 1/2 inch in length.
Here is a link to the podcast on the Slate website, or you can download it in itunes or the other places where you get your podcasts.
Apparently, having the medical examiner state that your conviction was based on a misunderstanding of the evidence is not enough to keep you from serving 31 years in prison for a “murder” that you did not commit. From the Chicago Sun-Times:
The Illinois Supreme Court recently ruled it would not take up the case of a Lincolnshire day care worker who was sentenced to 31 years in prison for the death of a 16-month-old boy in 2009…
But the attorney for Melissa Calusinski, who was convicted of killing Deerfield toddler Benjamin Kingan on Jan. 14, 2009, when she became frustrated and hurled him to the floor at the Minee Subee day care center, said she will continue to push for a new trial.
Attorney Kathleen Zellner said an expert witness has revised his conclusion, since the original autopsy was completed, to now include evidence the boy suffered another injury prior to the day he died.
Lake County Coroner Thomas Rudd reopened the investigation and determined there was a prior injury. He made his decision after reviewing the trial testimony, obtaining new evidence and analyzing Forensic Pathologist Eupil Choi’s findings.
Choi stated in a sworn affidavit that the boy “had suffered an old injury that pre-dated Jan. 14, 2009,” the date of his death.
The affidavit has been a key part of the defense’s argument for a new trial.
Zellner called attempts to get the case before the high court a long shot, saying, “They deny a petition for appeal about 98 percent of the time.”
But Zellner is still pressing on with a post-conviction petition in Lake County Circuit Court.
“It’s a work in progress,” she said.
Cynthia Brim, a long-time Cook County Judge who most recently was assigned to hear traffic and misdemeanor cases at the Markham Courthouse, was removed from the bench today by order of the Courts Commission. The order can be found here.
Brim, who suffers from bipolar disorder, had a breakdown two years ago, when she began ranting during a court call, until she was removed from the courthouse. The following day, she went to the Daley Center downtown, where she threw keys at a sheriff and pushed another sheriff. She was arrested and charged with battery but was found not guilty by reason of insanity. She claims that she is now under medication and is fit to return to the bench.
What was disturbing to read in the order was that Brim had been hospitalized multiple times — in 1993, 1995, 2000, 2004, 2008 and 2012 for her mental illness. When her problems would onset, she would not be aware of the problem, and she would only be hospitalized because a family member recognized the symptoms. Each hospitalization was from three to four weeks.
This means that Judge Brim was hearing cases during the onset of her psychiatric illness, without her even realizing it. How many people were the victims of her distorted judgment? It is also disturbing that she has pushed to remain on the bench — and ran for retention, knowing that she is at constant risk to have a relapse, unbeknownst to her.
I have appeared many times in front of Judge Brim. She is a very intelligent and compassionate person and I wish all the best for her. But she should have shown better judgment by retiring from the bench instead of fighting for reinstatement.
Here are links to some news stories that I have seen over the past few days, most of which are updates to stories that I have already blogged about. If you are following me on twitter, you may have already seen these links: