SCOTUS Weighs in on Forced Blood Draws in DUI Cases

In the wake of today’s decision by the U.S. Supreme Court in Missouri v. McNeely, DUI defense attorneys across the land are doing the “happy dance.”  Prosecutors (both state and federal) on the other hand are rending their garments and hair trying to figure out how to deal with the high court’s ruling that forced blood draws in most DUI cases will now require warrants, and the flood of “refusals” sure to follow as the implications of the case filter out to the public.

Wisconsin’s approach, first established in 1993 in State v. Bohling and then reinforced in 2004 in State v. Faust had been to allow warrantless blood draws in drunk driving cases after several criteria were met, including the presence of  probable cause for the officer to believe the driver under investigation had indeed been driving under the influence of alcohol. The key factor that drove the Wisconsin interpretation was the fact that the blood alcohol level of a drunk driving suspect is continually shifting and dissipating from the time the driver is apprehended, and the extra time it takes to procure a warrant incontrovertibly causes BAC evidence to be lost.

Wisconsin’s rationale had recently served as a kind of dividing line in the national debate about warrantless blood draws. 

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For Love of the Game…

I had my “eureka” moment about appellate advocacy when I was still a law student. With too few credits to even apply for the Milwaukee District Attorney’s “prosecutor clinic,” I still made an appointment to meet with a deputy DA to see if there was some way I could still volunteer and be useful.

I was stashed aside in a room with a table, lots of books and stacks of papers to wait for the meeting, but as I waited my eye was drawn to a slip opinion sitting on the table. I started to read, of course. The case, as I recall, had something to do with how much Spanish language interpretation was due to a defendant at a particular point in the process. I never got to the end of the opinion, so I don’t know how it turned out.

But I remember feeling the light turn on in my head, recognizing in an instant that this was an area of the law where, if you believed passionately in something and gave it your all in the higher courts, win or lose, your words and your efforts had a resonance beyond just a single case.

Of course, at that time I don’t think I even realized that there was a difference between “published” and “unpublished” opinions. Too late now, the fuse was lit!

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Advice on Appeals from Howard Eisenberg

Just like the prospect of being hanged in the morning, there’s nothing like having fourteen people over to Thanksgiving dinner to concentrate the mind.  In my case, it’s also the galvanizing principle to buckle down and clean house.

This year, the task was truly daunting — the family room had become nearly impassible, swamped by pile after pile of paper and other detritus related to serial family emergencies and funerals of the past few years.  And let’s face it, if the laws of physics dictate a that an object in motion tends to remain in motion, the rules of law and gravity at my house dictate that clutter tends to remain in place, and magnetically attracts more of the same.  Exponentially.

Still, the pool table and foosball tables weren’t going to excavate themselves for company, and so I parked the puppy in “doggie day-care” and rolled up my sleeves.  

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