Judging Traffic (July 2019)
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Minnesota Supreme Court: Right To Counsel Does Not Apply When Individual Asked to Submit to Blood Test Pursuant To A Warrant

The Minnesota Supreme Court ruled 4-3 a driver's limited right to counsel previously established by the court in blood testing cases did not apply where law enforcement had a warrant. The court in Minnesota v. Rosenbush was asked to apply a prior decision (Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn. 1991)) which held that under the Minnesota constitution a driver arrested on suspicion of DWI was entitled "to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." The Friedman court's majority held that asking for submission to a chemical test under the state's implied-consent law at the time was a "critical stage" in the proceedings against the driver and thus triggered the right to counsel. The majority in Rosenbush noted changes in the legal landscape since 1991, including the U.S. Supreme Court decision in Birchfield v. North Dakota and amendments in state law that reflected the Birchfield decision, including the need for a warrant and a new fluid-test advisory “that refusal to submit to a blood or urine test is a crime.” The court went on to note that with the warrant a "neutral judicial officer has determined that the police may lawfully obtain a sample of the driver’s blood" ensuring via the warrant process that the driver's human rights and human dignity were safeguarded. The dissent expressed concern that a driver facing an officer with a warrant had two choices: submit and give potentially incriminating evidence or refuse and face automatic license revocation. The dissenting justices "reasoned that a driver must make a critical and binding decision regarding chemical testing, a decision that will affect him or her in subsequent proceedings, and that when making such a decision, an attorney, not a police officer, is the appropriate source of legal advice."

New Jersey Supreme Court: Prolonged Traffic Stop Permissible

The New Jersey Supreme Court recently held that a prolonged traffic stop in order to await a canine unit is permissible if there is reasonable, articulable suspicion the defendant possessed drugs. At issue in State v. Nelson was the delayed traffic stop between the defendant's refusal to have his car searched and the arrival of a canine unit. The arresting officer had only moments before the stop received a tip that a silver Infiniti FX35 with a particular license plate being driven by an African-American male was transporting marijuana. The officer observed the vehicle and made a stop for failure to maintain inside the lane and following too closely to another vehicle. The car had several Febreze air fresheners and the defendant changed his explanation as to where he was going. The officer asked to search Nelson's vehicle, Nelson declined, and the canine unit was called for. The state supreme court divided the issued into two parts: was the traffic stop delay "prolonged" and if so, was the delay justified. The court found that the stop was prolonged with the addition of 37 minutes but that given the specific reasonable and articulable suspicion the delay was justified.

Distracted Driving: Strategies and State of the Practice

The Louisiana Transportation Research Center earlier this year released a report compiling information on distracted driving laws, practices, and policies through the entire United States. Conducted in cooperation with the U.S. Department of Transportation, Federal Highway Administration the report has a wealth of information on areas related to what is included in the definition of "distracted driving" as well as studies on the effectiveness of laws banning such driving.

Update: New Pennsylvania Law Allows Multi-Jurisdiction DUI Checkpoints

The last issue of this newsletter noted a Pennsylvania Supreme Court decision (Commonwealth v. Hlubin) finding multi-jurisdiction DUI checkpoints required formal creation and authorization by the municipalities involved. In July, the state's governor signed into law HB 1614 which will allow for such checkpoints and explicitly declares the new law is "intended to reverse the Pennsylvania Supreme Court's interpretation of 42 Pa.C.S. Ch. 89 Subch. D, as set forth in Commonwealth v. Hlubin."

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