What Are Your Rights When Confronted with a DWI Checkpoint in Springfield, Mo.?

It seems that there is a different DWI checkpoint conducted by a different law enforcement agency in the Greene County area every single week.  In fact, just a couple of weeks ago, a checkpoint was conducted in a residential neighborhood in West Springfield from 4:00 p.m. until about 8:00 p.m.  Not only can these checkpoints be burdensome and time consuming, but they can cause a great deal of stress and anxiety even for the most law abiding citizens.  With yet another checkpoint scheduled this weekend by the Greene County Sheriff’s Department, it seems prudent to explain your rights and give my advice as to what to do when encountering a DWI checkpoint.

The first thing you have to keep in mind is that you are under absolutely no obligation to roll down your window and speak to these officers.  In fact, I would encourage you not to.  Feel free to assert your constitutional rights; after all, it exists as a protection from an overbearing and over-reaching government.  Secondly, you are under no obligation to provide officers with your driver’s license or insurance card if you are not suspected of a traffic violation or with someone who is.  Although it would be a courtesy to provide those items, you are certainly not obligated to do so.

Below is what I would advise you to keep in writing in your vehicle just in case you encounter a checkpoint.  The below is a point by point recitation of your rights, complete with supporting case law.  I always encourage people to assert their rights, especially in light of overzealous and over bearing police work.

YOU HAVE DIRECTED ME INTO A DWI CHECKPOINT – I AM HERE AGAINST MY WILL

1) I am not in an Intoxicated Condition as defined by RSMo. Section 577.001.3.  I have not committed nor am I in the process of committing a traffic offense.

2) You have no basis in law or in fact to suspect me of a traffic offense or of a crime; therefore, I do not have to supply my license and insurance card to you pursuant to Florida v. Bostick, 501 U.S. 429, 434-35 (1991), and State of Missouri v. Dixon, 218 S.W.3d 14, 19 (Mo.App. W.D., 2007).

3) Based on my respect for law enforcement, even in light of this terrible inconvenience and invasion of my personal freedom, please see my license and insurance card on the window below. (then put those items on the window for inspection)

4) If you believe Missouri law requires me to roll down my window, speak to you, and hand you my license and insurance card, please understand that law would be unconstitutional pursuant to the 4th Amendment as outlined in Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 188 (2004).

5) With all due respect, I will not roll down my window or unlock my car unless you present me with an arrest warrant or a search warrant.

6) Please let me know when I am free to leave your DWI Checkpoint that I have been directed into against my will.

7) I thank you for your time and certainly wish you a nice, safe evening.

 

By kindly asserting your rights in this matter in writing, but at the same time providing the officers the information they desire, you should be saved the the time and stress that normally comes with these increasingly common occurrences.  Best of luck and don’t hesitate to contact me should you ever need the services of an experienced criminal defense attorney.

Springfield DWI Lawyer Adam Woody Offers Advice In Recent News-Leader Article On No-Refusal Policy

Springfield DWI Attorney Adam Woody was recently interviewed by a Springfield News-Leader reporter  for an article titled “Driving Safe:  Alcohol Test Change Lowers DWI Arrests.”

On November 6, 2014, soon after the “no-refusal policy” took effect, we posted our thoughts on the policy.  Many of our concerns have proved true.  The results of many of the blood tests taken in November and December are still not even back from the crime lab thereby slowing down the already lethargic justice system.  We have also seen a few cases where going to the trouble of getting a warrant has actually made the DWI case nearly impossible to prove for the city or state because the BAC was actually below the presumed legal limit of .08% by the time the blood was drawn.

The recent News-Leader article does a great job laying out both sides, but it seems impossible to say that a “no-refusal policy” has any impact on drunk driving.  Anyone who is going to get behind the wheel of a car after drinking is going to regardless of whether they have the legal right to refuse a breathalyzer or not.  All this policy continues to do, as we warned in November, is to slow down the process and add extra burdensome procedures for the police, the prosecutors, the Department of Revenue, the attorneys for those accused, as well as the people themselves who are accused.  The policy still does little to serve the public interest other than to allow public leaders to say “we are tough on DWI offenders”.  This is a costly and burdensome policy to achieve that end.

When Can Police Legally Enter Your Home or Dwelling

Police entering apartments or homes, particularly of college students, is becoming an increasingly hot topic in and around the Springfield area. At this point it seems prudent to briefly discuss the current state of the law regarding when police can legally enter your home and to outline the rights of individuals faced with a decision as to whether to grant a government officer permission to enter.

The Fourth Amendment to the United States Constitution provides the backdrop to all entries into homes and dwellings, as well as any other governmental search (including vehicles). Simply put, the Fourth Amendment provides all people the right to be secure in their bodies and homes against unreasonable searches and seizures, and this right cannot be violated absent a warrant based upon probable cause. As with all Constitutional provisions and laws, Courts have carved out a few other exceptions to the freedom against unreasonable searches and seizures and to the warrant requirement.

The first thing people must understand is that government agents routinely conduct what is called a “knock and talk” investigation. What this consists of is simply knocking on the door of a home and speaking to the resident or whomever answers the door. In so doing, oftentimes officers attempt to gain entry into the home by getting consent. Officers also will take the opportunity to look inside the residence to determine if they see anything that could give them probable cause to enter. BY NO MEANS do you have to give them consent to enter. In fact, there is absolutely nothing that prohibits you from plainly saying you are refusing consent and politely closing the door in their face.

To determine when the Fourth Amendment applies, Katz v. United States, 389 U.S. 347 (1967), outlined a two part test: 1) has the person exhibited a subjective expectation of privacy; and 2) is society prepared to recognize this expectation as subjectively reasonable. Stated plainly, if a person is in a home, dwelling, or vehicle and they have the legal right to be there, they will almost always have their Fourth Amendment rights intact. What this means is that if a person is seized or searched, or if the dwelling they are legally in is searched, then they can challenge the legality of that search in Court if they are charged. The legal remedy in this situation would be called exclusion, which means the person can file a Motion to Suppress Evidence, claiming that the evidence was illegally obtained. If granted, the State would not be allowed to use the illegally obtained evidence at trial.

As the Fourth Amendment clearly states, law enforcement can enter a home to search or to arrest an individual if they have a warrant based upon probable cause and signed by a neutral and detached magistrate (which is now called a judge). However, even without a warrant, law enforcement may enter a home based upon a few other exceptions. As mentioned previously, consent is the most common exception to the warrant requirement. People are routinely nervous when speaking with police and frequently consent to a search even if they have something to hide. Either way, I never advocate consenting to a search as it is an invasion of privacy no matter what. Again, YOU DO NOT HAVE TO CONSENT.

A second widely used exception to the warrant requirement is the “plain view doctrine”. What this essentially means is that if the police have probable cause to believe that they have observed something in plain view that is contraband, then they have the legal right to enter and seize that item. This is again frequent when an item is in plain view in an automobile, or when it is easily seen through a window of a home. It is also common, again, when people open the front door of their residence during a “knock and talk”. If the officer observes an illegal item in plain view, then that gives the officer the legal right to enter and seize the item.

The “plain view doctrine” leads to a third widely used exception, and that is a search based upon probable cause to believe the search will uncover criminal activity or contraband. Very importantly for this discussion is again the situation when a person answers their front door for a “knock and talk”. We see this scenario play out time and again, and that is when a person answers the front door when they are having a party and the officer sees several people at the party who appear to be under the age of 21 consuming alcohol. This gives the officer probable cause to enter the residence and investigate the possibility of minor in possession of alcohol. A second common observation by police that can lead to probable cause is the odor of marijuana. If police smell the odor of marijuana coming from a room, that gives them probable cause to enter and search. These are frequent justification for entry into apartments, lofts, and dorm rooms in Springfield. Again, there is nothing that says you have to keep the door open or to open it wide enough for police to see inside.

A fourth exception to the warrant requirement is known as “exigent circumstances”. This is really a secondary exception to probable cause in that if an officer has a reasonable belief that evidence may be lost or destroyed in the time it takes to get a warrant, then they can legally search for or seize the evidence. Again, this typically applies if the officer already has probable cause, but is an exception worthy of its own category. One topic that is gaining major steam is that of blood draws and other intrusions into the human body. That topic is outside the scope of this article, but it is a hot Fourth Amendment issue right now, and often the government’s argument in those cases is exigent circumstances. However, Courts have recently ruled that a warrant is required for intrusions into the human body even in the cases of possible driving while intoxicated.

As far as searches of homes and dwellings, the lines are blurred somewhat when we are dealing with fraternity houses. Oftentimes the fraternity houses are owned, at least in part, by the university itself, thereby giving the university officials or security guards the ability to consent to an entry into the houses. However, in that situation, university officials do not have the authority to allow a search of the individual rooms within the fraternity house. Again, the people who live in the rooms will have a reasonable expectation of privacy in those rooms and they cannot be searched absent a Fourth Amendment exception. The common areas of the fraternity houses, however, are different and can be searched with valid consent.

The law on police entering the home is always being tested and ever evolving. When dealing with searches of your person or searches of a vehicle, exceptions other than those listed above might apply to the warrant requirement as well. If you ever have a question as to whether your rights have been violated, do not hesitate to contact an experienced criminal defense attorney with in depth knowledge of Constitutional law and emerging issues. Feel free to contact my office at 417-720-4800 or email adam@adamwoody.com. Remember, you don’t have to consent to a search and you can revoke consent at any time.

New Greene County “No Refusal Policy” in DWI Cases

As a DWI attorney the major question I get is, “if I’m pulled over and investigated for DWI, should I blow or refuse”.  I would always explain that for various reasons there is no cookie cutter answer and that all cases are different.  Typically, with everything being equal, I would usually advise to refuse the breathalyzer if there is any question in your mind whether you’ll blow over the presumptive legal limit of .08%.  Due to a recent change in policy in Greene County, however, for reasons I’ll explain, I pause before giving someone the advice to refuse the breathalyzer.

Missouri v. McNeely, 133 S.Ct.1552 (2013), is a fairly recent and hugely important case regarding blood draws in DWI cases.  In that case, the U.S. Supreme Court held that forcing a DWI suspect to submit to a blood draw without a warrant is unconstitutional.  However, the case left open the possibility for forcible blood draws as long as police officers get a warrant.  A person’s body is clearly protected under the Fourth Amendment, but as with any other type of evidence, if police can demonstrate that they have probable cause to believe evidence of a crime will be found, judges can sign warrants allowing an intrusion into the human body.  As communistic as it may sound, forcible blood draws are included.

Greene County has now instituted what they call a “no refusal policy”.  What this means is that any time the Springfield Police Department, the Greene County Sheriff’s Department, or the Missouri State Highway Patrol have a DWI suspect refuse to blow into a breathalyzer after a DWI arrest, the officer will fill out the paperwork requesting a warrant, submit the paperwork electronically to a judge, and will request an electronic signature.  Once a warrant is signed, police can then go to any means in order to extract blood from a suspect, even if it means strapping them to a gurney and forcing a needle into his or her arm.

Setting aside the numerous human decency and rights arguments, there are a few things that people need to be aware of before making the decision to refuse in Greene County.  Traditionally, if a person blows and the breath alcohol content is .08% or greater, they can request an administrative hearing with the Department of Revenue.  Typically, they would still lose their license for 30 days followed by 60 days of a hardship, and would have to jump through some hoops to get it back.  If a person would refuse to blow after arrested for DWI, in the scenario of a first offense, there were ways to keep that person from losing his or her license at all.  On a second or subsequent arrest in that situation, things got murkier and oftentimes the suspect would lose their license for one year, with eligibility for a hardship after 90 days.  An ignition interlock for the full year, plus an additional six months, was one of the hoops required before reinstatement.  Now, if someone refuses to blow and a warrant is obtained, not only are they looking at the refusal suspension, but depending on timing, they could also be looking at the administrative suspension, not to mention a possible point suspension if convicted of the criminal case.   The blood draw will be sent to the Missouri State Highway Patrol Crime Lab for analysis, then the results forwarded on to the Department of Revenue.  This process can often take several months, so the suspect could be almost finished with the first license suspension before the second and third suspensions even start.

There are cases, however, where this new policy could come back to bite law enforcement and prosecutors.  For example, if someone refuses to blow in cases where they would have been very close to .08%, once law enforcement goes to the trouble of getting a warrant (which can take up to an hour or longer) the alcohol may have very well dissipated and the BAC is then below .08% at the time it is tested.  This situation will put an even heavier burden on the state because by statute they will have to show “substantial evidence of impairment” if the BAC is below .08%, whereas if above the legal limit, a presumption of impairment is created.  With those who refuse, although no legal presumption is created, the law makes it clear that the refusal can be used as evidence of guilt by the judge or jury, thereby creating a presumption even if not specifically enumerated as such.  Therefore, in the actual prosecution of cases on the criminal side it is unlikely to help and may realistically hurt those that would have been strong cases without the blood draw.

Because of the above, to me, this is an unnecessary and burdensome step in an effort to gain public attention.  The procedure will do absolutely nothing to help prosecute DWI cases.  All it will do will be to punish hard working people who have perhaps made a poor decision, even if for the first time, to get behind the wheel after drinking, by suspending their licenses for longer and making it more difficult and costly to get reinstated.  It will add extra cost and time for law enforcement and for the judges who are up in the middle of the night to review and sign the warrants, for very little benefit in the courtroom.  It is much more a publicity stunt than a tool to combat DWI offenses, while dehumanizing those accused.  Time and money would more wisely be spent on giving the officers added education and knowledge in the science and investigation of DWI cases rather than wasting it on figuring out ways to legally invade the human body.

Excessive Force By Police

In light of the recent events in Ferguson, Missouri where an unarmed 18 year old man was gunned down by police, it is important that we stop and remember that there are ways to combat excessive force by police. When race is involved, it is obviously a polarizing issue. Media and news outlets from across the nation have weighed in on the Ferguson Police shooting. I was recently interviewed by our local ABC affiliate to discuss the potential ramifications of police brutality or excessive force.

Realistically, any time there is an officer involved shooting there is a potential of three different things happening: An internal investigation by the police department, a criminal investigation by the police department or an outside agency, and a civil lawsuit against the officer and/or the department.
Internal Investigation – This is an investigation done by the police department that employs the officer involved in the shooting. Typically the officer is placed on paid administrative leave while the investigation is conducted. The point of this investigation is to determine what disciplinary action, if any, the officer should face for the shooting. The most severe thing that can happen here is that the officer can lose his or her job. However, the department could also determine that the officer’s actions were justified, leading to no discipline whatsoever.
Criminal Investigation – There is the possibility that either the department that employs the officer involved in the shooting or an outside agency could conduct a criminal investigation to determine if criminal charges should be sent to the prosecuting attorney against the officer involved in the shooting. In my opinion, it is a terrible idea, not to mention a deep conflict of interest, for the police agency that employs the officer to conduct the criminal investigation. It is much safer and reduces the appearance of impropriety if an outside agency conducts any criminal investigation. Much like in the Ferguson shooting case, rather than the Ferguson Police Department investigating the case, the FBI has stepped in to investigate. Once the investigation is complete, the case file will likely be turned over the the prosecuting attorney to determine if there is any criminal liability on the part of the officer. If it is decided that there are grounds for charges, which would include a criminal mental state by the officer, it is up to the prosecutor on what charges to file. Those can range from misdemeanor assault all the way up to various degrees of murder. Oftentimes, however, the shooting will be determined justified and no criminal charges are filed. If criminal charges are filed, the burden is on the prosecutor to be able to prove them beyond a reasonable doubt at trial.
Civil Rights Lawsuit – The last possible outcome of a police involved shooting is for the victim or victim’s family to file a civil rights lawsuit alleging that the police officer violated the victim’s civil rights. There is a provision of the United States Code, 42 U.S.C. Section 1983, which allows for such a lawsuit. The lawsuit will usually name the officer involved in the shooting, as well as the police department that employs he or she. Any time a police officer touches a civilian, even if it is with an object, or even a bullet in the most severe instances, legally speaking a seizure has occurred. As the Fourth Amendment to the U.S. Constitution states, all citizens are presumed free from unlawful searches and seizures. Therefore, when it is alleged that the Fourth Amendment has been violated, a 1983 action can be filed. It is then up to the officer or the department to justify the actions of the officer and to demonstrate that the actions were lawful. As has been reported, the family in the Ferguson, Missouri case has hired the same attorney from Florida who Trayvon Martin’s family has hired. It is anticipated that a civil case against Ferguson PD and the officer is imminent. Once a civil 1983 action has been filed, it is up to the victim or his family to prove the allegation by a preponderance of the evidence to the jury, which basically means that the force used by the officer was more likely than not excessive under the circumstances.

Although these types of cases are polarizing and can sometimes grip a nation, it is best to let the various legal processes play out. It is not time to jump to conclusions either way, rather, it is time to let the investigators investigate and to simply observe as the legal chess match subsequently ensues. It is no doubt going to be a long process, and surely emotions that lead to criminal behavior such as rioting, burglary, and damaging people’s property cannot run this high for long.

US Supreme Court to Decide if Person Can Be Stopped Based on Anonymous Call

On January 21, 2014 the United States Supreme Court (SCOTUS) heard oral arguments in the case Navarette v. California.  In that case an anonymous caller dialed 911 to inform the police that a person was driving recklessly and had almost ran the caller off the road.  The caller provided only a vague description of the vehicle.  Police officers spotted a vehicle matching the description the caller gave some 19 miles down the road and continued to follow the vehicle for 5 more miles.  After observing no other traffic violations at all, police stopped the vehicle based only on the anonymous call.  Police then found marijuana and the occupants of the car were arrested.  Navarette, the driver of the car, asked his trial court to suppress the marijuana, meaning that the State could not use it as evidence at trial.  Navarette’s argument was that the stop was an illegal stop and seizure in contravention of the Fourth Amendment to the United States Constitution.  The general rule is that police may stop a driver, but only if they have articulable reasonable suspicion that the driver was, is, or is about to commit a crime.  His motion to suppress was denied, and the California Court of Appeals upheld the trial court.  Navarette then appealed the case to the highest Court in the land.

This pending Supreme Court opinion is something that criminal defense practitioners, as well as state and federal prosecutors all over the country, will no doubt watch for closely.  But more importantly, this case potentially has consequences impacting the Constitutional rights of all of us.  Freedom from unlawful search and seizure is something we take for granted every day.  Any time we are stopped by police, we become nervous, agitated, and downright scared.  We surely expect there to be a valid reason for the stop, and a good one at that.  If SCOTUS upholds the California Court of Appeals, a portion of those freedoms we take for granted will be peeled away.  Police and the government will have another legal reason to meddle in the lives of the everyday citizen.  If upheld, what is to stop an ex-spouse or partner, a disgruntled neighbor, an angry co-worker, or a whole host of other people from calling “anonymously” and reporting a non-existent traffic violation for the simple pleasure of knowing that the police will intervene.  That scenario is in direct contrast to the country we all know and have become accustomed to, where law-abiding citizens are not concerned with undue police harassment.  On the one hand, this SCOTUS opinion has the potential to erode those rights we have held so dearly for so long.  On the other, it can establish yet again that the Constitution is not just a historical document we learn about in civics class.  It lives and breathes, and even the almighty Government is bound by it.  A decision on which way we are going is expected later this year.