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How to Detour the Constitution When the Subject is Drunk Driving

Although I have written elsewhere about the evolving and long-standing drunk driving exceptions to the Constitution and to various evidentiary and statutory and customary norms, there is a growing evil in our courts on a critical drunk driving issue that dangerously impacts liberty.

In 1966, the U.S. Supreme Court [SCOTUS] ruled, in Schmerber v. California, that a warrant is presumptively required for blood draws from people arrested for drunk driving because the integrity of the human body is at least as inviolate as a residence from a standpoint of governmental invasion, and warrants are presumptively required for searches of residences.  Of course, proven exigencies could excuse the warrant requirement for chemical testing of the human body just as for residential searches, but the urged evanescence of alcohol in the human blood stream did not suffice as that warrant-detouring exigency.

Because of the drunk driving exception to the Constitution, however, many states, including California, pretended that Schmerber didn't say what it said, and they started flouting  SCOTUS's constitutional rules on the point, not unlike the “Jim Crow” judges of the old South who flouted equal protection rulings.

Fast forward to 2013, and SCOTUS reiterated the Schmerber rule in a new case, Missouri v. McNeely, reminding all that a warrant is presumptively required for those invasive searches [which in the interim SCOTUS held includes breath and urine testing]. California [and a couple of other jurisdictions] feigned surprise: “Whaaat? – we thought that evanescence alone justified the invasion, which is why we have warrantlessly done so for 40 years!”

The law was clear then, and clear now, as is the hypocrisy of the California Courts on the subject matter.  They take their hypocrisy a step further: “And because we thought it was ok, don't punish our poor policemen by suppressing the fruits of their 47 year old illegalities, because they didn't know.  Honest!”  Wonderful, ignorance of the law is a defense for law enforcers and for law adjudicators, but not for the folks on the street.

One of the biggest devices the courts are employing to detour the clear warrant rule is the state statutory, administrative oxymoron “implied consent.”  You see, the fiction is manufactured, from whole cloth, that motorists are deemed to have given [past tense] their “consent” to chemical testing by the virtue of obtaining a driver's license or of driving on the public roads.  Huh?  “Deemed”?  Yep.

The problem for an honest government would be that state statutory rules do not define federal constitutional rights.  Moreover, something that is “deemed” is not the product of arms length's agreements, required in true consent matters.  And McNeely said there will be no per se detours around the warrant clause, and applying “implied consent” across the board as that detour is a per se rule, which SCOTUS forbids.

It is notable that Missouri has the same implied consent statute we do, but the SCOTUS plurality merely nodded in its direction, not giving it any weight, while writing on for many pages about the warrant requirement. Many want to urge that it was because the defendant refused in McNeely that the opinion needed to be written, but (a) if you are deemed, in the past tense, to have done something, you cannot undo it in the present tense, and (b) SCOTUS did not hold that the refusal was a revocation of Fourth Amendment consent in that case.  Why?  Because everyone knows that “implied consent” is not Fourth Amendment consent.

McNeely does not hold that a warrant is required only if one refuses; it holds that a warrant is required, absent established justification otherwise, established by evidence.

It should also be noted, as does one of the many helpful Texas cases, that the “implied consent” language nowhere provides that a warrantless extraction is permitted.  Nor could it, since SCOTUS decides federal constitutional law, not state legislatures [as the “Jim Crow” judicial tyrants finally found out].  Then too, the limited “implied consent” nod in McNeely was not joined in by the majority of the court anyway.

One of the great ironies in this discussion is that the courts of the Death Penalty Capital of the World, Texas, fully understand that “implied consent” is not Fourth Amendment consent.  Texas, Colorado, South Dakota, Arizona, and other places have sided with liberty in this liberty vs power debate, understanding that SCOTUS has held that warrants are required, and that state statutory doctrines cannot eviscerate that.

Texas in particular did not like the McNeely rule, but when their implied consent appeals case was remanded by SCOTUS to reconsider in the wake of McNeely, the state courts saluted and have deferred, requiring warrants for drunk driving blood extractions, and suppressing evidence where none have been produced. Our state, however, is quite, quite different on the liberty debate.

I just got a ruling against me on a clear McNeely matter based on a Maryland federal magistrate's motion ruling memo that they dredged up.  They had to leap over clear appellate rulings in Texas, Colorado, and elsewhere favoring individuals to scratch around and find that non-precedental trial court ruling [not even an appeals case!] to steal my client's liberty!  That is obscene!  And worse.

Courts are not supposed to decide in advance what they want their destination to be and then search around until they can find authority that appears to support that that pre-ordained destination!  Result-orientedness has no place in the hall of justice. Moreover, trial court motions memos have absolutely no precedental or persuasive value in the Courts.  Out of state appellate rulings, and federal appellate rulings, have persuasive value – trial court memos, whether in-state, out-of-state, or federal, have none.  On that utter non-authority, my client's liberty was eviscerated.  The Framers must be furiously spinning in their graves.

Because of this state thumbing its nose at SCOTUS for 47 years, in many of the opinions and motions the courts are allowing the cops to invoke the “good faith” exception [always in quotes because they know it is not!], which the Nixon justices-led SCOTUS from the ‘70's claims has the “sole ground” of deterrence and of educating the cops. Excludability of fetid evidence was not part of the Fourth Amendment but merely an appendage manufactured by the Court, goes their fiction.  That is utterly fallacious.

The early Courts understood that the Fourth Amendment was so inviolate and protective of people's liberties and security that cases could be dismissed, habeas could issue, evidence could be excluded, government agents could be arrested and sued, and judges could be sued for allowing its violation.  There was no manufactured “rule,” nor one with a “sole ground” of taking care of cops.  Violating the Fourth Amendment was the same as violating the 5th, 6th, or due process clauses: the fruits could not come into the courts, due to the imperative of judicial integrity.  SCOTUS has deftly eliminated habeas, case dismissal, suing the judges, arresting the cops, and have granted limited immunity from suit to their cops for Fourth Amendment violations.

While we noisily pretend to be advancing liberty for peoples elsewhere in the world, we have slowly ratcheted down liberty for our own people. Justice Alito's latest proclamation that the “rule” was “created” by the court with that “sole ground” should invite protestations beginning with “Liar, liar, pants on fire!,” but it has not. The general ignorance of the public, and of legal practitioners, of the constitutional history and theorems of this Republic is allowing courts to make outlandish constitutional claims with impunity, and those claims are always in the direction favoring power and against liberty.

The tyrannies and terrorisms we see thousands of miles across the seas, in foreign lands, are nowhere nearly the threat to us as are the tyrannies and terrorisms practiced on us by our own government, especially the courts, and our silence allows it to grow and metastasize until the organism is consumed.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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