October 2012

  • Welcome to the First Edition of Judging Traffic
  • U.S. Supreme Court and Traffic Law
  • Illinois Supreme Court Reviewed Standard for DUI Stop
  • Texting While Driving and the Fourth Amendment
  • Integrating Systems: Creating a Continuum of Care

Editor: Gregory S. Hurley

Welcome to the First Edition of Judging Traffic

Judging Traffic is a monthly newsletter that describes traffic and impaired-driving issues. The newsletter is made possible through a cooperative agreement between the National Highway Traffic Safety Administration and the National Center for State Courts. The target audience is judges and court staff but others are welcome to subscribe. To subscribe, send an email to the editor, Greg Hurley at Additionally, if you are aware of stories or events that may be of interest to the readership of Judging Traffic, please email them to the editor, as well.

U.S. Supreme Court and Traffic Law

The Institute of Bill of Rights Law at William and Mary Law School in Williamsburg, Virginia held the 25th Annual Supreme Court Preview last month. This fascinating event highlights upcoming Supreme Court cases and predicts which cases will be heard by the Court.

This year several traffic cases were highlighted. One case involves drug-sniffing dogs used during traffic stops, and the other involves a DUI case with a nonconsensual and warrantless blood draw. However, the Court will not take several taser cases, leaving the issue of police use of tasers during routine traffic stops unresolved. Without guidance from the U.S. Supreme Court, police departments will have to determine the legality of taser use based on decisions from state or federal courts in their own jurisdiction, if any are available.

Missouri v. McNeely is one of four Fourth Amendment cases accepted so far. It involves the question of exigent circumstances in a traffic stop where the individual refused consent to both the breathalyzer and a blood test at a local hospital. The police directed the lab technician to draw the sample anyway, and the BAC was 0.154 percent. The Court will need to balance the privacy interest of a warrantless blood draw against the workability issue of getting a warrant during a traffic stop when the alcohol blood level is dissipating. This will involve a new look at Schmerber v. California, 385 U.S. 757 (1966), which allowed a warrantless blood draw where there were exigent circumstances and "special facts," in addition to the dissipation of alcohol. For more information on the Missouri blood-draw case Missouri v. McNeely see the SCOTUS blog.

Dog cases are always fun, and this year's Fourth Amendment review will look at two Florida dog cases, of which one involves a traffic stop. Florida v. Harris involves a dog sniff and alert on the handle of a truck. What makes this case unique is that it involves the interior search of a vehicle which the state supreme court found deserved greater protection when the dog, Aldo, only alerted to a scent on the door handle. The court also found that law enforcement had to provide some documentation or evidence that Aldo was appropriately trained and certified. Again for more information on the dog-sniffing cases, see the SCOTUS blog. Determining what training and certification are necessary, as well as whether an "alert" is sufficient for the search of a vehicle, will be important issues for law enforcement officers in traffic cases.

The U.S. Supreme Court will not be reviewing the taser cases, one of which involved a traffic stop. This interesting case from Seattle involved a pregnant mother dropping off her child at school. She exceeded the 25-mile-per-hour school-zone speed limit and then refused to sign the ticket. The Supreme Court will not address the issue of whether the three jabs with the taser gun to subdue the pregnant mother were excessive force (the Ninth Circuit ruled that they were) or whether the police had legal immunity for the use of such force on the resisting pregnant mother driver (according to the Ninth Circuit they did).

The Traffic Resource Center will be watching these cases and will let you know of any developments.


Lyle Denniston, The dog-sniffing cases: Made simple, SCOTUSblog (Jul. 26, 2012, 3:20 PM),

Lyle Denniston, Police power to use stun guns left unclear, SCOTUSblog (May. 29, 2012, 1:02 PM),

Traffic Resource Center for Judges

The Traffic Resource Center for Judges is a cooperative effort between the National Highway Transportation Safety Administration and the National Center for State Courts to establish a resource for judges, court administrators, court clerks, and other court staff on issues related to traffic adjudication. It is an integrated clearinghouse of information as well as a training and technical assistance resource to improve court decision-making and processing of traffic cases involving impaired driving, drugged driving, distracted driving, and commercial driving. Please take a look at the website at .

Illinois Supreme Court Reviewed Standard for DUI Stop

The Illinois Bar Journal published an article in their October 2012 edition that highlights a recent Illinois Supreme Court opinion in People v. Hackett, 2012 IL 111781. Mr. Hackett was driving when a police officer saw him deviate slightly from his lane of travel on two occasions. The officer stopped the vehicle, which led to an arrest for DUI and driving with a suspended/revoked license. The trial court ruled that the officer did not have probable cause to stop the vehicle and suppressed all of the evidence that was developed as a result of the stop.

However, the Illinois Supreme Court indicated that the proper test is reasonable suspicion. It further stated that the officer was justified in conducting an "investigatory stop" on the defendant's vehicle based on the "momentary crossings" of the highway lane line. The effect of this case in the state of Illinois is that it will be far more difficult for defendants to suppress evidence that was collected following a traffic stop. The entire opinion is available online.

Texting While Driving and the Fourth Amendment

Professor Adam M. Gershowitz of the William and Mary Law School published an article in the fall 2012 edition of the Arizona Law Review titled "Texting While Driving Meets the Fourth Amendment: Deterring both Texting and Warrantless Cell Phone Searches." He argues that while states have created statutes to curb texting while driving, "r ecent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter." He notes that states like Virginia and California have set their statutory penalties at levels that resemble parking tickets rather than reflecting the extreme danger that texting causes the public. He also notes that some statutes are so under-inclusive that activities like surfing the Internet on a cell phone would not meet the statutory criteria for a violation. This is an interesting article worth reading.

Integrating Systems: Creating a Continuum of Care

The Traffic Injury Research Foundation recently released a report titled "Integrating Systems: Creating a Continuum of Care." The report was based on the information presented at the Twelfth International Alcohol Interlock Symposium and contains a wide variety of information regarding the use of interlock systems. For example, the report notes, "Not only is there a growing emphasis on incorporating a treatment component into interlock programs to target high risk offenders with diagnosed alcohol dependency issues, but there is also a growing recognition that criminal justice elements may be the only strategy to ensure that offenders who are consistently non-compliant are appropriately managed and adequately supervised." The report contains a number of case studies which describe the way jurisdictions are utilizing the technology to achieve positive outcomes. This report is well written and worth the time to read.


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Some online research provided by LexisNexis.