The US Supreme Court heard oral argument yesterday (January 9, 2013) in a case that will decide whether a police officer may obtain a nonconsensual blood sample from a suspected drunk driver without a search warrant. In Missouri v. McNeely, the State of Missouri appealed a decision of the Missouri Supreme Court that found the warrantless blood draw violated McNeely’s Fourth Amendment rights. In 2010, McNeely was stopped for speeding and was suspected of drunk driving. He failed field sobriety tests and refused a breath or blood test. The police officer then took McNeely to a nearby hospital and ordered a hospital technician to obtain a blood sample without a warrant.
The State of Missouri asked the Supreme Court to create an exception to the Fourth Amendment warrant requirement arguing that the natural dissipation of alcohol in the blood stream creates an exigent circumstance. The Justice Department joined Missouri in arguing this case. A decision is expected this spring.
This case should not have much impact on DUI cases in Colorado. The express consent law allows a driver in a DUI case to refuse a blood or breath test. However, a driver who refuses the chemical test may have his driver’s license revoked for 1 year for the first refusal; 2 years for a second refusal and 3 years for a third refusal. At the DUI trial, the driver’s refusal to take the chemical test may be admitted into evidence against the driver.
The National Transportation Safety Board today recommended that all first-time DUI offenders be required to have an ignition interlock device installed in their vehicles. The recommendation adopted by NTSB, came as part of the Board’s study on wrong-way collisions. The Board found alcohol-impaired driving was the leading cause of wrong-way collisions.
According to the Board, only 17 states require interlock devices for first-time offenders. Colorado is one of those 17 states. In Colorado, a driver who has had their license revoked for a DUI conviction or a chemical test result above .08 is required to install an interlock in order to reinstate their license. Colorado also requires the interlock for drivers with multiple DUI or DWAI convictions. “Technology is the game changer in reducing alcohol-related crashes on our nation’s highways” according to NTSB Chair Deborah Hersman.
The NTSB study found that of the approximately 260 fatal wrong way crashes each year in the United States, most happened at night and on weekends. The Board also recommended that better lighting, signage and roadway markings could reduce the number if wrong-way crashes.
A recent New York Times article highlighted the struggles courts have had with electronic technology and search and seizure law. Traditional analysis states that the Fourth Amendment to the United States Constitution protects places and things in which a person has a reasonable expectation of privacy. So under what circumstances can police search a cellphone without a warrant?
The new “smartphone” can contain detailed information about locations someone has visited and communications such as texts, emails and posts on Facebook and Twitter. Much of this material is maintained in the records of cellphone providers. According to the New York Times, a response to a Congressional inquiry revealed that cellphone carriers responded to 1.3 million requests from police for text messages and other information in 2011.
Courts have been divided on when police need to obtain a warrant. The California Supreme Court ruled that police could search a cellphone without a warrant if the phone was with the suspect a when he was arrested. A trial judge in a Rhode Island murder case suppressed the search of the defendant’s cellphone finding that there was a reasonable expectation of privacy in the contents of the phone.
Some states are attempting to address the issue through legislation. Bills have been introduced in Delaware, Maryland and Oklahoma to require police to secure a warrant to obtain location records from cellphone carriers. A similar bill was vetoed in California earlier this year. In some courts, prosecutors have argued that the location information they have requested is a business record maintained by the cellphone carrier and not information that is constitutionally protected.
As the courts and legislatures attempt to grapple with this issue, will technology outpace their ability to establish rules for law enforcement?
The Colorado State Patrol announced the launching of its ‘100 Days of Heat’ campaign that starts today. The campaign is an intensive crackdown on DUI’s during the summer months with a goal of reducing the number of deaths caused by alcohol and drug impaired drivers. According to the State Patrol’s press release, 67 people died in alcohol related crashes between Memorial Day and Labor Day in 2011. This represented 36% of all alcohol related fatalities for 2011. El Paso County had 15 alcohol related fatalities last summer.
The State Patrol and more than 90 other law enforcement agencies plan to conduct saturation and increased patrols over the Memorial Day Weekend. Sobriety checkpoints are planned in Aurora, Denver, Lakewood, Jefferson and Weld Counties this weekend.
The Driving Under the Influence of Drugs bill was defeated this week in the Colorado Senate on a tie vote. The original bill was a casualty of the civil unions bill when it wasn’t brought to the floor of the Colorado House before the House went into recess last week. The bill was included in the Governor’s call for the special session. It did not receive a majority vote when it was considered by the Senate on May 15, 2012.
The Colorado Department of Public Health and Environment (CDPHE) put out information that as of April 20, 2012, “no retest has resulted in a lower actual BAC than was originally reported.” This affidavit was sworn to by Cynthia Burbach, the Toxicology Lab Supervisor. We have learned that this information is not correct.
We received a report of the retest of one of the blood samples Mitchell Fox-Rivera originally tested. The original test, which Fox-Rivera analyzed on November 4, 2011 had a BAC of .218. The retest which was done by another CDPHE analyst on April 6, 2012 had a BAC of .199. So we know of at least 1 case where the retest was lower than the original test.
It is concerning that an affidavit was signed two weeks later that no retest has resulted in a lower BAC than the original test. This calls into question the accuracy of the information coming from CDPHE and whether Mr. Fox-Rivera did not follow the proper procedure in using a lower volume of blood than called for by CDPHE’s protocol.
We have requested that CDPHE produce documents for us to review under Colorado’s Open Records Act. We will provide a summary of those documents after we receive them later this week
We have new information, since we first reported about the problems with the Department of Health blood tests at the Colorado Department of Public Health & Environment.
We subpoenaed the analyst, Mitchell Fox-Rivera for a DMV hearing on April 25, 2012. Much to our surprise, he appeared at the hearing by telephone. He testified that he had little to no training. Basically, he was told about the operating procedures at the lab and had another lab tech watch him for a few days. He said the lab supervisor, Cynthia Burbach, did not supervise his work. Apparently, there were questions about his work that came up in early March, but he did not receive any additional training and none of the other lab personnel observed how he was performing his tests. We have ordered a transcript of his testimony and will post it when we receive it from the transcriber.
At the DMV hearing, we obtained a Revised Affidavit that Ms. Burbach had provided to the DMV. In that affidavit, which was signed on April 20th, Ms. Burbach said that 250 blood samples had been retested and “10 have been found to have an actual BAC significantly higher than reported by the technician.” The variance in the tests ranged between 24 and 77 percent. She indicated that the error in the technician’s process has been found. According to Ms. Burbach, “the technician did not follow the standard operating procedure and failed to properly operate a standard piece of equipment. This resulted in a lower volume of blood being analyzed than is proper. This decreased volume, then resulted in a lower reported BAC than the actual BAC.”
A number of things in this affidavit don’t make sense. First, were there variances in the other 240 samples that CDPHE says were not significant? What was the percent of variance in those tests? Second, CDPHE says the problem has been identified and is due to a lower volume of blood being analyzed than is proper. CDPHE tests multiple samples at a time. If the technician was using a lower volume of blood than is proper, then all of the samples should have the same problem.
We have filed an Open Records request to get the documents and communications from CDPHE. I suspect that much of what we have requested will be denied and CDPHE will hide behind some form of privilege that these records relate to an ongoing
In going through some police reports earlier this week, we came across a memo from the toxicology lab supervisor at the Colorado Department of Public Health and Environment. The supervisor reported in her memo that several blood samples analyzed by a particular lab analyst who worked at the Department of Health were inaccurate. The lab supervisor stated that as of March 21, 2012, she knew of “5 samples that were reported outside of the appropriate reporting range.” These samples were retested and new reports of the results were to be issued. The lab at the Department of Health is going to retest approximately 1,700 samples tested by this particular lab analyst, who was fired for unsatisfactory performance on March 14, 2012.
The toxicology lab at the Colorado Department of Public Health and Environment tests DUI blood samples that are submitted by police agencies from across the state. This episode is reminiscent of an incident reported in late 2009 by the Colorado Springs Metro Crime Lab where the blood alcohol results were found to be incorrect in 167 cases. The Colorado Springs crime lab identified the inaccurate tests were due to an inadequate amount of the internal standard n-propanol being added to the blood sample prior to analysis. After this problem was uncovered, the Colorado Springs Police Department began sending its blood samples to the Colorado Department of Health for testing.
At this point, the cause of the inaccuracies in the results of the blood tests performed by the Colorado Department of Health has not been reported. In our office, we found a handful of tests that were performed by the fired technician that are firm, Daniel, Thom and Katzman, is handling. We do not know what impact this problem will have on cases throughout the state. We will post additional information when it becomes available.
This week, the Colorado State Patrol and Colorado Department of Transportation released statistics for DUI arrests over the St Patrick’s Day weekend. 112 agencies reported a total of 424 DUI arrests in Colorado for the 4 day weekend (Friday to Monday). 50 people were charged with DUI in El Paso County. By agency, that figure is broken down as follows: the Colorado Springs Police Department arrested 36 people for DUI; The State Patrol in Colorado Springs made 4 arrests; The El Paso County Sheriff’s Department reported 6 arrests and 3 other agencies in El Paso County made 4 arrests.
If you happen to be one of the unfortunate ones who were arrested, you should contact an experienced Colorado Springs DUI lawyer for help. Those who submitted to a blood test, should be receiving a revocation order from DMV in the next few weeks if your BAC result was over .08. That order requires you to act quickly to avoid the immediate revocation of your driver’s license. If you would like to discuss your particular case and how a Colorado Springs DUI attorney can help you, please call us for a free initial consultation.
Tired of the two or three hour wait at DMV? The Colorado Division of Motor Vehicles announced a new program that it hopes will reduce waiting times at DMV. Called the “Wait Less” program, the state unveiled an on-line computer reservation system on March 15, 2012. The program will allow the scheduling of appointments online that is designed to cut the waiting times at DMV offices. A kiosk station will checkin people when they arrive at the DMV office. This program is only available at the main DMV office at 1881 Pierce Street in Lakewood. DMV has plans to expand the service to other cities, including Colorado Springs, by the end of the year. You can use the service at https://www.colorado.gov/apps/jboss/dor/online/appointment/scheduling/index.xhtml