Friday, June 21, 2013

Free in Kentucky: Some DUIs Can Be Thrown Out Because of Bad Roadblo...

Free in Kentucky: Some DUIs Can Be Thrown Out Because of Bad Roadblo...:             “Roadblock” DUIs are quite misunderstood by most defendants and a lot of lawyers.  Generally, people think roadblock DUIs are w...

Some DUIs Can Be Thrown Out Because of Bad Roadblocks

            “Roadblock” DUIs are quite misunderstood by most defendants and a lot of lawyers.  Generally, people think roadblock DUIs are worse than normal DUIs, but that isn’t the case at all.  Right off the bat, we know that if the client is stopped at a roadblock, chances are they weren’t stopped for a traffic infraction.  That means the Commonwealth doesn’t have one of the key pieces of evidence they like to have in a DUI case – “Bad Driving.”  We are already a step ahead because we know a police officer is not going to come into court and say something like “they were all over the road” or “I witnessed the subject weaving in his/her lane and crossing the center line.”  Those pieces of evidence can be damning, so it’s nice to have a case where the Commonwealth doesn’t have bad driving.
            In addition, roadblocks can be challenged as violations of the Defendant’s 4th Amendment right to be free from unreasonable searches and seizures.  That’s what we’re going to concentrate on today.

            In the past, I’ve given you some general points on how to handle yourself at a police roadblock/checkpoint.  For more information on what to say or not to say when you are stopped at a roadblock, see the blog post at

            Today, we’re going to talk about how roadblocks can be challenged in court.  I’ve had the great fortune of helping make a significant degree of law on this subject, so roadblocks are kind of “my thing.”  My interest and abilities in the subject were sparked and molded by a phenomenal central Kentucky lawyer named Elmer George – who has a pretty impressive reputation and a real knack for DUI work.  While working for Elmer, I got to write the brief for the Monin v. Commonwealth case that we’ll be talking about later today.  But before we get to that, we need to talk a little about the 4th Amendment, and why it’s important for Police to do roadblocks correctly.

            The 4th Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”  U.S. Const. amend. IV.  The Kentucky Constitution provides the same protection from unlawful searches and seizures.  Ky. Const. §10.  It’s important to note that the law doesn’t protect you from ALL searches and seizures – just UNREASONABLE ones. 
            So – What is a “search” or “seizure?”  Case law abounds establishing that even brief detentions by law enforcement constitutes an seizure under the Fourth Amendment of the United States Constitution.  Delaware v. Prouse, 440 U.S. 648 (1979),  Terry v. Ohio, 392 U.S. 1 (1968).  “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”  Terry,  at 16. 
            So the 4th Amendment certainly protects against unreasonable stops of a person in their vehicle.  Normally courts will require that the police officer have reasonable, articulable suspicion that criminal activity is going on, before a vehicle stop is allowed.  That’s a good thing because it means police officers can’t just stop any one for any reason.  If that was allowed, we would be subject to the individual biases and prejudices of officers – and unfortunately, that would lead to even more racial profiling, etc.
            Roadblocks (the word “checkpoints” can be used interchangeably) can basically take the place of the need for reasonable, articulable suspicion.  But, in order to make sure we don’t leave the police officers to their own individual biases and prejudices, Kentucky Courts have laid down some rules for how roadblocks have to be performed.  Basically, we’re trying to take the discretion away from the officers in the field (the ones actually performing the roadblock shouldn’t be able to make the decisions about the roadblock).
            The Kentucky Court of Appeals has ruled that discretionary roadblocks violate the Constitutional rights guaranteed by the Fourth Amendment of those detained.  Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).   The dispositive question of whether a police checkpoint is discretionary is “whether it was constructed in a way to pass Constitutional muster.”  Commonwealth v. Bothman, 941 S.W.2d 479, 481 (Ky. App. 1996).  
            In order to comply with the Court’s demand that roadblocks not be discretionary, the Kentucky State Police (KSP) has come up with some guidelines for its officers regarding the implementation of roadblocks.  Those rules are called the OM-E-4 guidelines.  So Courts say that the KSP needs to try to follow its own rules in order to limit the discretion of officers performing checkpoints.  While “technical noncompliance” with OM-E-4 regulations does not invariably lead to a violation of Fourth Amendment rights, checkpoints must be established in a way so as to limit the discretion of the officers in the field.  Id. 

            In case you’re wondering, “Why is all this necessary?  I’m sure officers wouldn’t try to abuse the power that comes with performing a roadblock.” let’s talk about Monin.

            The case of Monin v. Commonwealth involved an over-zealous State Trooper who passed a bar in Marion County.  As he passed the bar, he noticed a driver who pulled out of the bar’s parking lot.  The officer wanted to pull over the driver.
            The truth is that “pulling out of the parking lot of a bar” does not constitute reasonable, articulable suspicion that someone has done something illegal.  So, the Trooper did NOT have the right to pull the driver over.  Therefore, as the Trooper approached a pre-approved checkpoint site, he radioed in for permission to start a roadblock.  He got permission, turned on his lights, pulled over the car behind him, took the driver to jail and the roadblock was then over.  It was a one car roadblock.
            The Court of Appeals found that the roadblock in Monin was a violation of the driver’s constitutional rights based on the fact that the “roadblock” wasn’t designed so as to limit the discretion of the Trooper in the field.
            Recently, I argued in front of the Court of Appeals on a similar issue.  In this case, the police officers did nearly everything correctly, except that the start and stop times of the roadblock were not pre-approved by a supervisor.  My argument before the Court of Appeals is that the failure to pre-approve a start and stop time leaves too much discretion to the officers performing the roadblock. 
            Carried to its logical conclusion, an officer in the field could spot a driver he didn’t like, who was not acting suspiciously in any way, radio in for authorization to conduct a traffic checkpoint, and detain the driver.  A valid traffic checkpoint could consist of the stop of exactly one car, in direct contradiction of this Court’s decision in Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).  And even worse, a prejudiced officer could wait to start a roadblock until he saw a minority driver, and end the roadblock after the stop of that minority.  It’s exactly this type of discretion that the roadblock law in this great Commonwealth seeks to prevent.
            Anyway – we’ll see what the Court of Appeals says.
            It should take a couple of months or so to get our decision, but I’ll post it when it comes out.  If you have any more questions about roadblock law, or DUI in general, don’t hesitate to ask.  My door is always open.

Greg Simms, Attorney at Law – 502.618.4949

Friday, June 7, 2013

Free in Kentucky: The Police Can Go Inside You, Now. Maryland v. Ki...

Free in Kentucky: The Police Can Go Inside You, Now. Maryland v. Ki...: Start with the presumption that a search without a warrant is an unreasonable search and is prohibited by your 4 th Amendment right to be ...

The Police Can Go Inside You, Now. Maryland v. King DNA Case Analysis

Start with the presumption that a search without a warrant is an unreasonable search and is prohibited by your 4th Amendment right to be free from unreasonable search and seizure.

Start with the presumption that the police cannot search you for no reason, and that’s a good thing.  It’s a good thing for the same reason that the government putting a microchip under your skin is a bad thing. 

On top of those presumptions we can find some common ground.  Traditionally, people on both sides of this conversation agree that 4th Amendment law is a balancing act.  Courts should weigh the privacy rights of individual citizens against the need for governmental intrusion.  If the privacy right is more important than the government need for intrusion, the intrusion should not be allowed. 

Let’s talk about intrusion.  On one end of the spectrum is the drug dog sniff.  In our scenario, we’ll say you pack a suitcase, go to the airport and prepare to board a plane.  As you pass through the terminal on your way to your gate, a uniformed officer walks a German Shepherd against the grain of pedestrian traffic.  Nobody is stopped.  Everybody is sniffed.

This type of governmental intrusion is minimal.  The police don’t stop you.  They don’t search your clothes.  Your baggage isn’t opened and you go about your business.

Moving up the spectrum of intrusion, you have things like: Police officers looking into the windows of your vehicle in a public parking lot; A roadblock DUI safety checkpoint that only lasts about 30 seconds of stop time; Police search of the cartilage around your home; Search of the inside of your home; Stop and Frisk search to make sure someone isn’t armed and dangerous; Strip Search to ensure you aren’t hiding contraband; and lastly, and most invasively, the search of a human body inside the human body.

For the most part, it is conceded on both sides of the argument, that the search of a person generally requires individual suspicion that THAT PERSON has committed a crime.  For the purpose of today’s argument, we’ll say that if the person is already in custody, the standard is whether it is reasonable – based on whether the promotion of government interest outweighs the degree to which the search intrudes on a person’s privacy.

Now let’s get down to the recent Supreme Court Ruling.  The case is called “Maryland v. King” and was decided by 5-4 vote on June 3, 2013.  Since there are 9 Supreme Court Justices, that means that this is the most narrow margin by which a case can be decided.  That should tell you something about how heated the debate can be, and how grey this subject can be.

Basically, King was arrested in Maryland.  After he was booked and arraigned a few days later, he was forced to give a buccal swab, pursuant to the Maryland DNA Collection Act.  That means that some officer took what is essentially a big Q-Tip, and ran it across the inside of King’s mouth, in order to collect a sample of his DNA.

Months later, they matched King’s DNA in a central database against a DNA sample taken from a victim in an unsolved rape case.  King was then tried and convicted of rape – then challenged the search procedure of taking his DNA by buccal swab after arraignment.

Some of you at this point are thinking “Well I don’t give a shit whether the police did something wrong – that guy’s a rapist and I’m glad he got punished.” 

Raise your hands if you think Rape is bad and it should be punished.  Ok – all of you?  Good.  Me too.

Now that we’ve all agreed that rape is bad, we can set that aside for a moment and have a legitimate intellectual discussion about the means of governmental intrusion versus privacy interests at stake.  Because if your analysis of government intrusion ends with “crime is bad” then you should go live somewhere else where freedom and privacy aren’t valued, and the police can do anything they’d like to maintain what the government considers to be “order.”  Try Germany around 1940.

The Supreme Court in King upheld the Maryland law regarding DNA collection of people in custody, post-arraignment.  In the opinion, written by Justice Kennedy, the Court called the buccal swab of the inside of a body orifice “negligible.”  Then they went on to say that the search was akin to fingerprinting – which is helpful to identify suspects in custody.

There was a strong dissent to the case, written by Scalia.  For those of you who don’t follow the Supreme Court Of the United States (“SCOTUS” if you’re a law nerd), Justice Scalia is a pretty strict conservative (some of my law nerd friends are smirking right now about that understatement).  And in the dissent, Scalia joins some relatively liberal individuals, including Clinton nominated Justice Ginsburg, and Obama nominated Justices Sotomayor, and Kagan.

Scalia goes on and on about the major difference between DNA collection and matching, and fingerprint analysis.  The difference is pretty huge and Scalia points out how the majority is pretty misleading by saying the 2 are alike.  On one hand, fingerprinting is used primarily for identifying people who are ALREADY suspected of criminal activity.  Often, people who are in custody and need to be identified.  On the other hand, the Maryland law allows the DNA collection for INVESTIGATIVE purposes.  To try to solve crimes, for which there are no suspects.  For example, they did not suspect King of the 2003 rape (for which he was later convicted) when they collected his DNA.

That is a pretty big difference, especially since we’re talking about 2 different government interests.  The first is the interest in identifying someone that police already have reason to suspect of illegal activity.  The second is just broad, investigative purposes.  Normal law enforcement needs.

Scalia said: [t]here is a “closely guarded category of constitutionally permissible suspicionless searches,” (Chandler v. Miller, 520 U. S. 305, 309 (1997) that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (internal quotation marks omitted).

Scalia makes some very good points, but my beef with the ruling is on the flipside of the coin – the privacy interest. 

You know how people use the phrase “You gotta draw the line somewhere.”?  That line, I submit to you, when it comes to extra scrutiny for invasive police searches, is when the police want to go INSIDE your body.  Regardless of where they want to go.

Inside the body is the most private of areas.  It is a place that, no matter where you are, you have the most reasonable expectation of privacy.  Inside you.

The Supreme Court acted like the search was no big deal.  Negligible.

That’s a problem for me.

And let’s take a little detour here.  If the police suspect you of a crime, they can get a warrant to go inside your body.  They can get your blood drawn or a buccal swab done to match your DNA left at a crime scene if they have probable cause to believe you committed a crime.  So I’m not saying that police should never be able to get your DNA.  I’m saying that they shouldn’t be allowed to go inside a person’s body if they don’t have (at the very least) an individualized suspicion that YOU committed a crime that they are investigating.

Going inside your body is not “negligible.”  It is a big deal.  There was a time when the Supreme Court believed that virtually any intrusion into the human body would be considered an invasion of cherished personal security, that is subject to constitutional scrutiny.  That time was in 1968, in Terry v. Ohio.  The strange thing is that the Supreme Court actually QUOTES the above language in the body of the King Opinion, but FAILS to apply it to the buccal swab search which intrudes into an orifice inside your body.

I think the Supreme Court (and Scalia, for that matter) could have spent some more time on the degree of intrusion into the body, and that they most certainly should have given it more respect.  And a higher degree of protection.

The bottom line for me is this:  When you balance the most intrusive of intrusions against the normal need for law enforcement, you should protect the inside of the human body.  That's why Maryland v. King is a bad ruling.

Anyway, some of you have got to be bored to tears by now.  And I’ve got to get some actual work done. 

So if you have questions, hit a brotha up.  My door is always open.  502-618-4949.

Monday, June 3, 2013

Free in Kentucky: How Can DUI be Considered Murder?

Free in Kentucky: How Can DUI be Considered Murder?: I’ve said before that DUIs are like snowflakes.  And I love that about my work.  I’ve done some work in other areas of the law and to me, a...

How Can DUI be Considered Murder?

I’ve said before that DUIs are like snowflakes.  And I love that about my work.  I’ve done some work in other areas of the law and to me, a lot of it is just boring compared to criminal defense.  For example, when I was doing some personal injury work, it just seemed like every time I worked on a “soft tissue injury” rear-end collision, it was the same case.  Over and over.

But DUI is different every time.  That’s why when some people call me and say “Well, my brother/friend/cousin/acquaintance got a DUI and ________ happened to them.”  Usually my response is something like, “They had a different case than you.”  And my new client’s case may be better or worse.

Concerning the levels of seriousness, DUI cases can be as benign or as serious as one can imagine.  A person can be “over-charged” with DUI if they had a beer with dinner and they are stopped at a roadblock.  Maybe a police officer smells alcohol on their breath and they make a decision immediately that the person is DUI.  In that circumstance, my client may not be guilty of any crime whatsoever.

On the other end of that spectrum, DUIs can be extremely serious, depending on the consequences that occur as a result of the intoxicated driving.  A person can even be charged with Murder as a result.

Pursuant to a WLKY report:  “Metro Louisville police said 24-year-old Anthony Smiley struck another car head on in the 7100 block of Manslick Road about 8:30 p.m. Friday.  The coroner's office said the occupant of the second car, 57-year-old Robin Jent, of Louisville, died an hour after the accident.  Smiley is being held at Metro Corrections on charges of DUI and murder.”

At this point it may be appropriate to back up and discuss a broader principle of criminal law.  Assuming the primary function of punishing someone for criminal conduct is to deter others from committing the same conduct, isn’t it appropriate to punish based on the action, and not the consequence of that action?  The conduct of driving at a .3 BAC is the same conduct regardless of whether the driver causes an accident, no?  For the sake of brevity, we’ll continue this conversation on another day, and focus on how and why a person can be charged with Murder based on driving under the influence.

Typically people think of Murder as an intentional action.  The actor pulls a trigger, intending to kill another, and the intended result occurs.  But with DUI, we’ll assume the driver doesn’t intend to harm anyone.  Rather, the intent is simply to get home (or whatever the final destination should be).

How, then, can someone be charged with Murder based on drunk driving?

Under KRS 507.020(b), A person is guilty of Murder when “Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

The key language that we’ll look at today is “wantonly” engaging in conduct that creates grave risk of death.  In order to figure out what constitutes wanton behavior, we’ll jump to the definitions of Mental States under KRS 501.020(3).  Under this subsection, Wanton behavior is defined as follows:  “A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.”

Now, I know there’s a lot of what one might consider unnecessarily* superfluous legalese in that definition, so let’s cut through the fluff and get a real definition.  The difference between reckless conduct and wanton conduct is this:  People who are reckless do things without regard to risk involved.  People who are wanton KNOW the risk and they disregard that risk.

Specifically, the risk we’re talking about today is the risk that driving drunk can cause serious or fatal accidents.  And the drunker the driver, the higher the risk.

Here’s the rub:  As a person’s intoxication increases, the risk of hurting someone on the road increases.  Also, as a person’s intoxication increases, the cognitive ability decreases.  Thus, if a person is incredibly drunk (such that they are more dangerous), doesn’t it naturally follow that the likelihood that they can appreciate (and consciously disregard) risk has decreased?

Marinate on that a bit.

Anyway, the Wanton provision of the Murder statute is a way that the Commonwealth can prosecute someone for Murder without the actual INTENT to kill someone.  In legal slang, this is called “Depraved Heart Murder.”

I think that would make a phenomenal movie title, don't you?  I wonder if Ashley Judd and Morgan Freeman are available...

If you have any more questions about DUI, Murder, or any other issues, my door is always open.  You can call me at 502.618.4949.

*See what I did there?  Glad you're paying attention.