Judging Traffic (October 2018):
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New Marijuana Impaired Driving Study

On October 15, 2018, a study was released on effects of marijuana use on driving. The study was conducted by a multidisciplinary research team at the Centre for Innovative Medicine of the Research Institute of the McGill University Health Centre and was funded by the Canadian Automobile Association. A group of 18-24 year old regular marijuana users inhaled smoke from 100 mg of marijuana. This is a low dose as typically marijuana users consume the smoke from 300-500 mg of marijuana. The study then had the participants “drive” using a driving simulator. Participants demonstrated significant deterioration in their driving abilities “as soon as they were exposed to the kinds of distractions common on the road.” This was true even 5 hours after marijuana use. This is a particularly important finding because another study found that a significant number of marijuana users do not believe that use of the substance impairs their driving ability. Researchers noted that follow-up studies are necessary to determine if these results will remain consistent for other age ranges. The complete study is available here.

Regional Judicial Outreach Liaison Paid Position Opening

There is an opening for a Regional Judicial Outreach Liaison for Region 3 (North Carolina, Kentucky, West Virginia, Virginia, Maryland, Delaware, District of Columbia). This position is designed for a sitting or retired judge that lives in any of the states or territories listed. This is a paid position. Interested judges can read more about the position and the application process at http://www.americanbar.org/groups/judicial/conferences/specialized_court_judges.html or by contacting Cheronne Mays, Program Associate, Judicial Division at cheronne.mayes@americanbar.org. The position for the RJOL closes on Tuesday, November 1st.

Warrantless Blood Draw Case

The Court of Appeal of the State of California, First Appellate District rendered an opinion in People v. Gutierrez on October 2, 2018.  Mr. Gutierrez was arrested for DUI and told he had the option of submitting to either a breath test or a blood test.  He opted for the blood test.  The trial judge determined that Mr. Gutierrez was never told the consequences of his choice so from his perspective he was being compelled to take a test, the only issue was which one.  On appeal, he argued that the state should have obtained a search warrant before extracting blood and he cited to the U.S. Supreme Court ruling in Birchfield v. North Carolina (2016).   In Birchfield, the court determined that prior to extracting blood for testing pursuant to a statute which authorized the same, an officer was required to obtain a search warrant, subject to a few exceptions. 

The Court of Appeal of the State of California, First Appellate District determined that this case was different.  Although Mr. Gutierrez’s blood draw was effectively non-consensual because he was not told he could refuse testing altogether, he was given the option of a breath test which law enforcement can constitutionally require without a warrant.  As he was given this option, this situation is fundamentally different than the situation addressed in Birchfield.  The appellate court held that the “element of choice is dispositive, and that if a DUI suspect freely and voluntarily chooses a blood test over a breath test then the arresting officer does not need a warrant to have the suspect’s blood drawn.”  

Warrantless Blood Draws in Cases with Serious Bodily Injury

Timothy Andrea of the Boston College Law School recently published a law review article titled The Exigencies of Drunk Driving: Cripps v. State and the Issues with Taking Drivers' Blood Without a Warrant. This is an interesting article because it depicts how one state has redefined the exigent circumstances exception to the warrant requirement for blood draws in a specific category of cases. The abstract to the article states:

"Few of the government’s investigatory techniques implicate individual privacy concerns more than the taking and testing of a suspect’s blood. These blood draws are a common tool used to fight drunk driving. In 2013, in Missouri v. McNeely, the U.S. Supreme Court reiterated the need for case-by-case review when considering whether exigent circumstances justify warrantless blood testing of drunk driving suspects. An Oklahoma statute takes a different approach by categorically abdicating the warrant requirement and authorizing law enforcement to draw blood from any driver involved in an accident that results in serious bodily injury. In 2016, in Cripps v. State, the Oklahoma Court of Criminal Appeals affirmed the constitutionality of this statute, concluding that this categorical exigency did not run afoul of either McNeely or the Fourth Amendment. This Comment discusses how the decision in Cripps represents a significant departure from established Fourth Amendment law that has always required a case-by-case approach to exigent circumstances. Accordingly, this Comment argues that when done without a warrant under the guise of an exigency, blood draws require a high degree of judicial scrutiny to ensure that law enforcement officials are not encroaching on fundamental civil liberties."

Unit of the Crime Case

The Appellate Court of Illinois, First District issued an opinion in People v. Costa on September 20, 2018.  Mr. Costa was convicted of two counts of aggravated DUI following a bench trial.  He was sentenced to 4 months in jail, 30 months of probation with intensive probation for the first year, 25 days of community service and $26,854 in fines/court costs.  The terms of incarceration for both counts were run concurrently.  The difference between the two counts in the charging document is that Count 1 included an additional aggravating factor which was transporting a person under the age of 16 at the time of the offense.

On appeal, the defendant asserted that he should only have been convicted of one offense under the “one act, one crime” doctrine where both convictions are based on the same physical act of driving under the influence of alcohol.  The Appellate Court of Illinois, First District agreed.  They overturned the conviction stemming from Count 2 of the charging document.  This is an interesting case because “unit of the crime” issues rarely are addressed by appellate courts.  The ruling in this case is based on the specific language contained within the code sections at issue and the results may have been different in other jurisdictions that define their impaired driving crimes slightly differently.    

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