South Florida Criminal Law Blog

Federal Agency Recommends Lowering Drunk Driving Limit

Wed, 15 May 2013 13:07:03 -0500

If highway experts at one federal agency have their way, the number of drinks a person can have before getting behind the wheel legally is about to go down.

The National Transportation Safety Board is urging states to lower the blood-alcohol content level at which drivers are considered legally drunk. The Board wants to see states lower BAC limits from .08 to .05, meaning a driver whose BAC meets or exceeds this level can be charged with driving under the influence.

"Most Americans think that we've solved the problem of impaired driving, but in fact, it's still a national epidemic," NTSB Chairman Deborah A.P. Hersman said in a press release announcing the recommendation. "On average, every hour one person is killed and 20 more are injured."

Federal lawmakers forced states to adopt a .08 cutoff for DUI by passing legislation 13 years ago that would have withheld money for highways from any state that didn't comply. NTSB points out that more than 100 countries in six continents have set the drunk driving limit at .05 or lower.

"The research clearly shows that drivers with a BAC above 0.05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured," Hersman said. The Board specifically cited figures showing that impairment for some drivers starts with one single drink.

Court Says Police Can't Search Cell Phone Without Warrant - Smallwood v. State

Fri, 03 May 2013 10:37:25 -0500

Last August, we blogged about a couple of cases headed to the state Supreme Court that all raised an important question for law enforcement, prosecutors, defense lawyers and, most importantly, people charged with a crime in Florida: whether evidence, such as photographs, taken from a person's cell phone during an arrest can be later used against the person in a criminal trial. The state's highest court has weighed in on the issue and the answer is "not without a warrant."

In Smallwood v. State, the Florida Supreme Court ruled that while police officers may take a person's cell phone during a search incident to arrest, the cops need a warrant to look at photos or other information, data and content contained in the phone.

The plaintiff was arrested in 2008 and charged with robbing a convenience store in Jacksonville. He was identified by a store clerk who was working at the time of the robbery as well as an acquaintance who saw him jump a fence and run through a nearby park. Police seized the plaintiff's cell phone when he was apprehended 15 days after the robbery, and an officer looked at the phone after placing him in a police vehicle. The policeman found photos of the handgun allegedly used in the robbery next to stacks of money, as well as those of the plaintiff and his fiancé posing with large bundles of cash and what appeared to be new engagement rings.

Rejecting objections from defense counsel, a trial court ruled that the photos were admissible as evidence, finding that the cell phone search was perfectly legal. The plaintiff was convicted of robbery and possession of a firearm. He was sentenced to 65 years in prison with a minimum sentence of 13 years.

The First District Court of Appeal affirmed the decision on appeal. The court relied on the U.S. Supreme Court's 1973 decision in United States v. Robinson, in which the nation's highest court ruled that police can inspect items found on a person during a search incident to the person's arrest. In that case, the court said a police officer properly looked inside a crumpled cigarette packet found on a person arrested for driving on a suspended license.

Florida Court Says Man Who Came Out of House Not Responsible for Marijuana in It - Evans v. State

Thu, 25 Apr 2013 15:45:03 -0500

In Evans v. State, the Fourth District explains that police must show that an illegal drug actually belonged to a certain person in order to convict him for possession.

After seeing Timothy Evans exit a house under surveillance by Florida law enforcement, an undercover officer approached Evans and arranged to buy 45 oxycodone pills from him. The officer later drove back to the house and called Evans on a cell phone to let him know that the officer was outside. Evans emerged from the house, got into the officer's unmarked car and gave him 45 pills in exchange for $675 as they had previously agreed. A second police officer watched the exchange from another undercover vehicle.

The police arrested Evans when he attempted to leave the house in his car. They later obtained a warrant to search the home, where officers found loose marijuana among other items. Evans was charged with oxycodone trafficking and possession of less than 20 grams of marijuana. The trial court denied his motion for acquittal on the latter charge, in which Evans argued that there wasn't enough evidence to tie him to either the house or the bedroom in which the marijuana was found to establish that the drug was his.

At trial, Evans' cousin testified that she lived at the house, but Evans did not. The home was allegedly owned by Evans' sister, on whose behalf he collected rent each month. Meanwhile, Evans' girlfriend testified that she had been living with him in another city for about a year at the time of his arrest. A jury nevertheless found him guilty on both charges. Evans was sentenced to more than 65 months in prison with a minimum term of at least three years.

The Fourth District overturned the marijuana conviction on appeal, however, ruling that there was not enough evidence to show that he actually possessed the drug. "Because the defendant was not in actual possession of the marijuana, the state had to prove constructive possession," the court explained, meaning that he had "dominion and control" over either the weed or the house.

High Court Says Cops Need Warrant to Take Blood From DUI Suspects - Missouri v. McNeely

Tue, 23 Apr 2013 07:53:26 -0500

The U.S Supreme Court ruled April 17 that police officers must obtain a warrant before taking a blood sample from a person suspected of driving under the influence of drugs or alcohol against his or her will. The decision, stemming from a Missouri case that we discussed in January, is likely to have far reaching effects, including in Florida.

"The fact that alcohol dissipates from the bloodstream over time does not by itself give the police the right to draw blood without a warrant in drunken-driving investigations," the New York Times' Adam Liptak explained, reporting on the decision. Specifically, Justice Sonia Sotamayor explained in an opinion rendering the court's decision that whether it is reasonable for an officer to take a blood sample in any particular case "must be determined case by case based on the totality of the circumstances."

The latest decision updates an important issue in DUI cases to reflect drastic technology enhancements since the Supreme Court ruled almost 47 years ago in Schmerber v. California that officers properly extracted blood without a warrant from a suspected drunk driver in an accident that caused injury to both the driver and another person. In that case, the high court noted not only the fact that blood alcohol levels naturally fall over time (making it difficult get an accurate read of a person's intoxication level if the test is performed several hours later), but also the typically long waits necessary to obtain a warrant.

In the latest decision, the court observed that technological developments have made it much easier for officers to get a warrant quickly via email. Thirty states currently use an electronic warranting system, according to the Times.

The case worked its way all the way up from a state trial court decision in which the judge threw out a blood test taken from a driver who police said appeared to be intoxicated after they pulled him over for erratic driving. Taken without the driver's consent, the test showed that his blood alcohol content was nearly twice the legal limit. Nevertheless, a state appellate court upheld the ruling, saying that there were no "exigent circumstances" to support the cops' failure to obtain a warrant.

Gun Possession Gets Florida Man 15 Years in Prison Under Armed Career Criminal Act - U.S. v. Weeks

Fri, 19 Apr 2013 08:19:53 -0500

A felony conviction in Florida often has wide ranging consequences, from jail time and fines to revocation of voting rights. It also means that the person convicted can no longer carry a gun. In U.S. v. Weeks, the U.S. Court of Appeals for the Eleventh Circuit explains that possession of a firearm by a convicted felon can mean a long stretch behind bars, depending on the extent of person's previous convictions.

Mr. Weeks was sentenced to 15 years in prison after he plead guilty to possession of a firearm and ammunition as a convicted felon. Despite the plea, Weeks argued that he should not have been sentenced under the Armed Career Criminal Act, a federal law that enhances prison times for convicted felons who commit crimes with guns.

Specifically, the ACCA provides that a previously convicted felon later convicted for possession of a firearm must be sentenced to at least 15 years in prison if the person has at least three prior convictions for either violent felonies or serious drug offenses. These felonies and offenses must have been committed on different occasions in order to qualify under the Act.

A pre-sentence investigation report indicated that Weeks had been previously convicted on four separate violent felony counts - three for burglary of a structure and one for aggravated battery with a deadly weapon - committed on separate occasions. Weeks, however, argued that prosecutors failed to show that these crimes were committed separately. Two of the burglaries, according to Weeks, occurred on the same day at two businesses (Shirley's Restaurant and the Florida Times Union building) 56 feet apart from each other. Weeks further claimed that the battery charge did not qualify under the ACCA.

A district court denied Weeks' request to withdraw his guilty plea when it became clear he would be sentenced under the ACCA. Noting that the crime of burglary requires the person charged to enter into a structure unlawfully, the district court said that Weeks committed two separate crimes when he entered and later left the restaurant and then entered the Times Union building next door.

Florida Court Throws Out Felony Charge for Failure to Prosecute - Mora v. State

Tue, 09 Apr 2013 13:00:30 -0500

Facing a criminal charge in Florida is a serious matter that can come with severe consequences. In addition to jail time and legal costs, the specter of a potential conviction can loom heavily over criminal defendants as they prepare for adjudication. That's why, as the Fourth District Court of Appeals explained in Mora v. State, the law requires prosecutors to commence proceedings by certain deadlines, depending on the nature of the case.

Luis Mora was charged with three counts of contracting without a license - a misdemeanor that applies to individuals who operate a contracting business without the requisite certification - in July 2008. Arguing that Mora had previously been convicted of the same offense, prosecutors also charged him with a third degree felony four months later. Because notice of the new charge was sent to the wrong address, Mora did not become aware of the felony count until December 2011, more than three years after he was notified of the misdemeanor charges.

Florida law requires the state to commence prosecution for a third-degree felony within three years from the date on which the crime was allegedly committed. Following a hearing on the matter, a trial court denied Mora's motion to dismiss the felony charge for failure to prosecute, ruling that the elements of proof required for a conviction under the misdemeanors mirrored those for the felony and therefore Mora was not harmed by and delay in prosecution.

The Fourth District disagreed on appeal, however. "Petitioner correctly argues that the felony unlicensed contracting charge is a different crime" than the misdemeanors, the Court explained. Specifically, while all of the elements of the misdemeanors still had to be proved in order to convict Mora for the felony offense, the felony offense also required at least one additional element of proof: that Mora had previously been convicted for misdemeanor contracting without a license.

The Court compared the matter to its 2007 decision in Cicilian v. State, a DUI case in which the Court ruled that a felony DUI charge was separate and distinct from a misdemeanor charge, and granted the defendant's motion to dismiss the felony charge for failure to prosecute. "Analogously, in this case, the felony unlicensed contracting offense requires proof of an element that the misdemeanor does not; that is, the existence of a prior conviction," the Court said.

Nurse Arrested for Refusing to Take DUI Suspect's Blood Sues Police Officer - Depalis-Lachaud v. Noel

Tue, 26 Mar 2013 07:55:52 -0500

In January, we talked about an important case out of Missouri that asks the U.S. Supreme Court to decide whether police officers can force a person suspected of DUI to submit to a blood test. Today, we bring you Depalis-Lachaud v. Noel, a case in the U.S. Court of Appeal for the 11th Circuit. It centers around a Florida nurse who was arrested after she refused an officer's demand that she take blood from a man hospitalized after allegedly driving drunk and causing an accident.

Palm Beach County Sheriff's Office deputy Kenneth Noel arrived at a local hospital shortly after 10 p.m. on June 17, 2009 to perform an intoxication assessment on a man who had been involved in a car crash earlier that evening. At some point, Noel approached the nurse's station and asked Nurse Depalis-Lachaud to withdraw blood from the suspect so that it could be tested for alcohol content.

As Noel recalled, Depalis-Lachaud told him that the hospital "didn't do that" and began to walk away. When he persisted, Depalis-Lachaud told Noel again that the hospital did not "do that for law enforcement." Noel informed Depalis-Lachaud that he didn't have time to wait for her to check with a supervisor and informed her that she would be violating the law by obstructing a police officer if she further declined to assist him. Depalis-Lachaud was arrested when she again refused to perform the blood withdrawal.

Depalis-Lachaud, on the other hand, claimed that she expressly told Noel that it was against hospital policy for her to withdraw blood for a police officer. Noel persisted and Depalis-Lachaud responded: "We're waiting for the doctor. The doctor has to make that decision." Noel refused to wait for chief emergency room physician to arrive, however, and instead arrested Depalis-Lachaud.

Noel later returned to the hospital, where another nurse on duty withdrew the blood for him.

Confidential Informant Credibility in Florida Criminal Cases - Becker v. State

Tue, 19 Mar 2013 10:00:00 -0500

Many Florida criminal cases turn on the testimony, and participation of confidential informants and many times these informants themselves have criminal records that are less than clean. As a result, an informant's motive for helping law enforcement and prosecutors is often the subject of intense debate, which can weigh on his or her credibility in the eyes of a jury. In Becker v. State, the Fourth District Court of Appeal sets one important ground rule: the prosecution cannot vouch for the credibility of a confidential informant.

Todd Becker was charged with solicitation to commit home invasion robbery and other crimes stemming from an alleged plot to rob a home that was thwarted before it occurred.

The prosecution's case was based largely on testimony from a confidential informant, a childhood friend of Becker's who had already been convicted of 14 felonies at the time. During a meeting in April 2007, Becker allegedly told the informant that he was trying to get his hands on a gun so that he could rob a house somewhere on the state's west coast. The informant agreed to help Becker get a gun and even intended to participate in the robbery, but later claimed that he changed his mind because he did not want to go back to prison.

The informant then told his former probation officer about the robbery scheme. After meeting with FBI agents, the informant agreed to have several calls with Becker monitored and recorded. He also introduced Becker to an undercover FBI agent acting as a gun dealer. Becker was arrested when he met the informant and undercover agent in a parking lot to buy a gun.

On direct examination, the informant denied receiving any benefit from the FBI in exchange for his assistance. On cross examination, however, he admitted that he had been arrested twice since the incident with Becker. Although he was charged with crimes carrying heavy prison time, the informant was instead given probation. On redirect, the informant maintained that his participation in the Becker prosecution had nothing to do with his sentencing and probation for the recent felonies.

Florida Battery Charge Requires Proof of Intent - Yarn v. State

Mon, 11 Mar 2013 12:24:28 -0500

While anyone who has watched a police drama on TV recently may be familiar with the criminal charge of battery, it's likely that few can explain what the term actually means. As the Second District Court of Appeal clarifies in Yarn v. State, a battery involves not only a physical element, but also an intent to commit the crime.

Dwight Yarn was arrested and charged with a number of crimes, including aggravated battery on a law enforcement officer with a deadly weapon and battery on a police dog, stemming in part from a car accident that occurred as Yarn was attempting to flee a police officer after committing a robbery. According to the Second District, Yarn was driving down a dead-end street (toward the dead end) when a police deputy blocked the only way out with his Chevy Tahoe K-9 police vehicle. Yarn turned around at the dead end and accelerated before ramming into the Tahoe in an attempt to get by it. The deputy and a police dog - Rex - were in the Tahoe at the time and were both injured.

A trial court denied Yarn's motion for acquittal on the aggravated battery on a law enforcement officer with a deadly weapon and battery on a police dog charges. He was later convicted and sentenced for these and other charges.

On appeal, the Second District upheld the conviction for the battery on a police officer charge, but overturned the conviction for police dog battery.

Under Section 784.03, Florida Statutes, battery occurs when a person "[a]ctually and intentionally touches or strikes another person..."or intentionally causes another person bodily harm. Battery is enhanced to aggravated battery when the person charged uses a car or other deadly weapon. With or without such a weapon, the crime includes an element of intent, which prosecutors must establish in order to convict, the court explained, citing its 2003 decision in Beard v. State.

Florida Court Reverses Battery Conviction on Faulty Comma in Self-Defense Instructions - Talley v. State

Wed, 06 Mar 2013 08:05:37 -0500

Attention to detail is an important skill in many walks of life, including criminal defense. As the Second District Court of Appeal's recent ruling in Talley v. State makes clear, even a seemingly insignificant issue like a stray comma in written jury instructions can deprive a criminal defendant of a fair trial.

Douglas Talley was charged with felony battery stemming from an altercation with JM, the alleged victim. At trial, JM testified that he felt Talley stab him twice with a sharp object without provocation. JM then punched Talley and pushed him away. Talley claimed self-defense, however, alleging that JM attacked him first. According to Talley, JM started the fight by punching Talley in the jaw and was injured as the men wrestled against a chain-linked fence.

At the close of evidence, the trial court instructed the jury on self-defense and the related "stand your ground" law. The Court explained that Talley would be justified in using non-deadly force against JM if he reasonably believed it necessary to defend against JM's imminent use of unlawful force against Talley. The Court further instructed that if Talley was not breaking the law and was attacked by JM in a place where Talley had a right to be, "he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm."

The jury found Talley guilty and he was sentenced to more than 68 months in jail.

The Second District reversed the decision on appeal, however, finding that the trial court erred in providing its "stand your ground" instruction. Specifically, the trial court added one single comma to the statutory explanation of this defense, set forth in Section 776.013, Florida Statutes.

The trial court: Talley "had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed..."
Section 776.013: A defendant "has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes...

Florida Court Explains Williams Rule in Marijuana Trafficking Case - Ricketts v. State

Thu, 28 Feb 2013 07:36:32 -0500

In Ricketts v. State, Florida's Fourth District Court of Appeal explains the Williams rule, which allows Sunshine State prosecutors to introduce evidence that may seem unrelated to the crime for which a defendant is charged in order to show that the person knew exactly what he was doing.

Jerome Ricketts was arrested and charged with the trafficking of between 25 and 2,000 lbs of marijuana after a stash of the drug was found in a crate in a storage unit he rented under an assumed name. At trial, he sought to prevent the prosecution from entering into evidence a number of comparable, empty crates featuring similar shipping labels with addresses from California, which were also found in the storage unit and police said smelled strongly marijuana (enough, at least, to get the attention of a drug-sniffing police dog). The trial court allowed the evidence, ruling that it was relevant to prove Ricketts' knowledge of the crime.

The Fourth District affirmed the decision on appeal, finding that the evidence was admissible under the so-called Williams rule. Evidence of other crimes is general not admissible for the purpose of proving a defendant's bad moral character of propensity for wrongdoing. In Williams v. Florida, however, the state supreme court ruled in 1959 that evidence of collateral crimes is admissible for the purpose of proving things like a defendant's motive, intent, knowledge or lack of mistake.

"In determining the admissibility of collateral crime evidence, the trial court must make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed an any prejudice," the court explained, citing its 2011 decision in Santiago v. State.

Here, the court explained that Ricketts was charged with violating section 893.135 for "unlawfully and knowingly" purchasing or possessing a certain amount of marijuana. The evidence of the other crates -presumably also used for shipping and storing the drugs - was therefore relevant to proving the "knowingly" element of the crime, according to the court. "Because knowledge is a specific element of the crime charged," the court ruled that "the evidence of the other crates was admissible Williams rule evidence because it was relevant or material to some aspect of the offense being tried, rather than used simply to prove propensity."

Florida Court Explains Time Requirements in Obtaining a Search Warrant - Barrentine v. State

Mon, 25 Feb 2013 21:24:11 -0500

In Barrentine v. State, Florida's Second District Court of Appeal explains that, in order to get a warrant to search a home, police must show not only that they have probable cause to believe illegal activity is happening on the property, but that the belief is based on evidence from the not-too-distant past.

Lewis Barrentine was convicted on charges of drug possession, maintaining a structure for selling controlled substances and possession of equipment for animal fighting or baiting after police searched his house on suspicion of animal cruelty.

Prior to conducting the search, officers obtained a warrant to scour the property for evidence based on information contained in an affidavit completed by Detective Paul Wright. Wright stated in the affidavit that three separate witnesses - two neighbors and a land surveyor - had contacted the local sheriff's office with concerns about possible dog and rooster fighting and related cruelty. The land surveyor in particular reported seeing emaciated pit bulls as well as aggressive roosters missing large swatches of feathers. Aerial photographs from the land surveyor's website also showed a large number of dogs held individually on the property. Based on his experience policing animal fighting and cruelty, Wright said he believed there was illegal fighting going on at the property.

A trial court denied Barrentine's motion to suppress the evidence found during the search, arguing that there was not sufficient probable cause to support the warrant. On appeal, however, the Second District agreed with Barrentine that the officers had not established a fair probability of finding evidence on the premises at the time the warrant was signed.

"The deficiency in the affidavit is its failure to establish the relevant time period during which the animals were observed on Barrentine's property," the Court explained. "To establish a fair probability that evidence of a crime will be found at the place to be searched, the affidavit must reflect the specific time of the illegal activity that forms the basis for the alleged probable cause."

Self-Defense and the Forcible Felony Exception in Florida - Crimins v. State

Mon, 18 Feb 2013 12:06:32 -0500

Self-defense may be one of the best known criminal defenses available to a person charged with a violent crime, but it is also probably one of the least understood. In practice, self-defense is an important tool for criminal defendants, but it requires significant proof of certain legal elements in order to be viable in any given case. In Crimins v. State, Florida's Fifth District Court of Appeal explains the concept of self-defense as well as the so-called "forcible felony exception."

John Crimins was charged with attempted first degree murder and aggravated battery stemming from an incident in which he allegedly attacked Jason Warren with a meat cleaver. Warren is the boyfriend of Moriah Mace, Crimins' former girlfriend and the mother of his child. Crimins claimed that he was approaching Mace's apartment when Warren came out swinging a baseball bat at him. After pinning the baseball bat to his side, Crimins said he removed the cleaver from his jacket and swung it at Warren in order to disarm him. Crimins further claimed that he was carrying the cleaver because Warren had previously threatened him.

At trial, a judge instructed the jury on the law as it relates to both self-defense and the "forcible felony exception." Under Florida law, the use of deadly force is justifiable where necessary to prevent imminent death or great bodily harm. A defendant cannot claim self-defense, however, when the person uses force while attempting to commit, committing or escaping after the commission of a forcible felony. The jury convicted Crimins of aggravated battery.

The Fifth District reversed the decision on appeal, ruling that the trial judge should not have instructed the jury about the forcible felony exception. As the court explained, the exception applies only where the defendant was committing a separate felony than the one for which he claims self-defense. Here, the court rejected the State's argument that the attempted murder charge (for which Crimins was acquitted) counted as a separate crime for purposes of the exception. The court noted that both charges stemmed from the same underlying facts and that Crimins argued self-defense for each charge.

The court further ruled that the trial judge's decision to give the forcible felony exception instruction was a fundamental error that deprived Crimins of a fair trial. "Crimins' sole defense at trial to the count for aggravated battery against Warren was self-defense," the court noted. While the State impeached much of Crimins' testimony about his version of the incident, the court said "we cannot conclude that the evidence of guilt was overwhelming or that the claim of self-defense was extremely weak."

Florida Court Dismisses Charge Against Man Carrying Gun in Union Hall Parking Lot - State v. Little

Sat, 09 Feb 2013 10:48:15 -0500

If you've read or watched the news recently, you are probably aware of the ongoing debate about guns in America. On the one side, are gun control advocates who would like to see many (or all) of the firearms currently available for sale in the U.S. banned. On the other, are the gun connoisseurs who see almost any regulation as an infringement of their Second Amendment right to bear arms.

In Florida, lawmakers have attempted to reach a happy medium. In State v. Little, the Fourth District Court of Appeal explains one of the major gun laws on the books in Florida - the concealed carry law - as well as one of its largest loop holes, the "place of business" exception.

Torrence Little was charged with possession of a concealed weapon in Florida after an unidentified person informed police that someone was carrying a firearm in a union hall parking lot. Officers observed Little carrying a gun tucked into his waistband and covered by his shirt when they arrived on the scene. Because he did not have a permit to carry a concealed weapon, Little was arrested.

Following a hearing, the trial court granted Little's motion to dismiss the charge, in which he argued that he was not covered by the law requiring a person carrying a concealed weapon to have a permit because he was carrying the weapon as part of his job. Under Section 790.25(3)(n), Florida Statutes, the ban on carrying concealed weapons does not apply to "[a] person possessing arms at his or her home or place of business." Little was the union's financial secretary and also responsible for providing security in the union hall and its parking lot, among other duties.

In 1991, Florida's Third District Court of Appeal ruled in State v. Commons that the "place of business" exception is not "confined to a place of business owned by the defendant himself. To the contrary, it includes . . . premises where the individual is employed by another." Other courts, meanwhile, have said that the exception also extends to non-working hours.

U.S. Supreme Court Takes on Blood Tests for DUI Suspects

Sun, 27 Jan 2013 18:16:14 -0500

The nation's highest court recently considered an important and divisive legal issue which could have a substantial effect on DUI cases in Florida and across the country: whether police officers should be required to get a warrant before forcing a person suspected of driving under the influence to take a blood test.

Missouri v. McNeely concerns the case of Tyler McNeely, who was pulled over by police officers in The Show Me State and exhibited many of the signs associated with intoxication, including bloodshot eyes, slurred speech and the smell of alcohol on his breath. McNeely refused to submit to a breath test and later declined a blood test after being transported to a hospital. His blood was drawn anyway and testing showed that his blood alcohol content was nearly double the legal limit.

A state trial court suppressed the blood test evidence at trial, ruling that the cops were required to get a warrant before taking McNeely's blood. In 1966, the Supreme Court held that police officers could have blood extracted without a warrant from a driver in an accident resulting in injury to both the driver and another person. In that decision, the court not only focused on the principle that alcohol dissipates in the blood over time, but also noted the time lost investigating the accident and in transporting the injured parties to a hospital.

In the current case, the court is asked whether the fact that blood-alcohol levels subside with time, alone, is a sufficient basis for allowing a warrantless blood test. According to The New York Times' Adam Liptak, the current crop of Justices seemed skeptical. "Several justices expressed discomfort with what Chief Justice John G. Roberts Jr. called the 'pretty scary image' of government-sanctioned bodily intrusions involving sharp needles," Liptak wrote of oral argument in the case, which took place in early January.

Meanwhile, Missouri prosecutors and federal government attorneys told the court that the time it takes to obtain a warrant can vary from 15 to 20 minutes for those obtained by phone to more than two hours. During this time, blood-alcohol levels necessarily fall for a driver who has been drinking. On the other hand, American Civil Liberties Union lawyer Steven Shapiro told the court that "the privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the state does something as intrusive as putting a needle in somebody's arm."