A York County DUI prosecutor has lost his job after being charged with drunk driving and leaving the scene of an accident, police and court officials said.
Jamie Terrell Nichols, 28, is charged with DUI and leaving the scene of a crash on Mount Gallant Road Saturday night, according to Master Trooper Gary Miller of the S.C. Highway Patrol.
A crash happened outside Rock Hill city limits and was investigated by the highway patrol. Then a second crash occurred inside the city limits, on Mount Gallant Road at Museum Road, and was investigated by Rock Hill police.
Nichols left the scene of the first two-car collision, Miller said.
Nichols then was taken into custody a short while later at the scene of a second collision. Rock Hill police issued a failure to stop for a red light citation at the second crash scene, said Lt. Michael Chavis of Rock Hill Police Department. No injuries were reported in either crash.
A wanted Michigan City man was arrested Sunday for alleged drunken driving and violating the governor’s COVID-19 stay-at-home order, according to the LaPorte County Sheriff’s Office.
Wilbert Bureau Jr., 61, faces three counts of operating while intoxicated — including one that is a level felony 6 for having a prior OWI on his record. The other two OWI charges are class C misdemeanors, the sheriff’s office said.
Wilbert also faces charges of violating Gov. Eric Holcomb’s no-travel order during the coronavirus pandemic, a class B misdemeanor.
The office said LaPorte Sheriff’s Deputy Austin Epple was eastbound on U.S. 20 west of the Ind. 2 interchange at 11:43 a.m. Sunday.
There, he saw a vehicle driving eastbound on U.S. 20 pass Epple’s fully marked squad car at a speed above the posted limit, police said.
While traveling behind the vehicle, Epple checked his squad car computer to find the license plate was expired and the registered owner — Bureau — had a suspended driver’s license, police said.
Epple initiated a traffic stop on the vehicle in the 6500 East block of Ind. 2. It was then that Bureau was identified as the driver, who had an active warrant, police said.
Sheriff’s Deputy Justin Phillips arrived to assist with the roadside investigation. Capt. Derek Allen said Bureau was allegedly found to be driving under the influence.
Bureau was taken into custody and eventually transported to the LaPorte County Jail for the latest offense and an outstanding, unrelated warrant in a domestic violence case, police said.
WASHINGTON COUNTY, Wis. (CBS 58) — Washington County officials say they responded to three OWI incidents over the weekend of April 25-26.
According to a police report, a Washington County deputy stopped a car driving in and out of a ditch and traveling down the middle of an interstate in the Town of Addison around 2 a.m. Saturday morning.
The female driver was completely naked with a male passenger slouched down in the passenger seat, holding a marijuana pipe.
The driver told the responding deputy that she had left her house to bring the passenger to his home in Juneau and “had not thought to put clothes on.” She said she was doing it for “the thrill of it.”
The 29-year-old woman was arrested for operating a motor vehicle while intoxicated and the passenger was cited for possession of marijuana and drug paraphernalia.
While this incident was being investigated, a citizen called 911 to report a vehicle that had struck several construction barrels.
The vehicle was stopped by a deputy on I-41 and a 28-year-old Fond du Lac man was arrested for 3rd offense operating while intoxicated as well as possession of fentanyl, possession of cocaine, and possession of drug paraphernalia.
Washington County deputies also arrested a 29-year-old Neosho man Sunday afternoon, for operating while intoxicated 2nd offense after he crashed his vehicle with his 7-year-old daughter in the car. The incident occurred on County Highway 0 near State Highway 83 in the Town of Erin. The man was also arrested for possession of fentanyl and drug paraphernalia. Authorities say there were no major injuries as a result of the crash.
“We want the community to know that our officers are out actively pursuing those that choose to endanger the lives of others by driving impaired,” Sheriff Martin Schulteis said. “These examples illustrate people showing an utter disregard for human life. We are thankful that no one was injured however the consequences could have been tragic. The Washington County Sheriff’s Office in partnership with observant citizens will continue to aggressively pursue justice on the roadways.” https://cbs58.com/news/washington-co-officials-make-3-weekend-owi-arrests-including-driver-who-was-completely-naked
The paramedic told police he had taken over-the-counter cold medicine and some prescribed drugs before hitting another rig outside a senior care facility
RIPLEY COUNTY, Ind. — An Indiana paramedic faces multiple charges, including felony official misconduct, after allegedly driving an ambulance while intoxicated.
Police received a call in October reporting that Ripley County EMS Paramedic Paul Robert Heon, 49, seemed to be having trouble operating the rig outside of an assisted living facility, missing the facility’s driveway, driving on a grassy area and hitting another parked ambulance while apparently on a medical run, according to The Versailles Republican.
Heon was transported to the hospital for evaluation, with EMS providers checking his blood sugar and for signs of stroke in transit.
In the emergency room, an Indiana State Patrol trooper performed field tests and questioned Heon, who told the trooper he had not had anything to drink but had been taking over-the-counter medication for a cold as well as prescribed medications, including Ambien.
Heon later told law enforcement officials he remembered going out on a call but did not remember going to the senior facility, and that he didn’t realize until after he exited the ambulance and people were staring at him that he was feeling foggy and “felt like he was going sideways,” The Versailles Republican reported. Heon told police he had been dealing with a cold for about two weeks.
After a toxicology report, Heon was charged with official misconduct, which is a level 6 felony, operating a vehicle while intoxicated and operating a vehicle while intoxicated endangering a person, and operating a vehicle with a schedule I or II controlled substance or its metabolite in the body.
A major breathalyzer manufacturer is under criminal investigation for possible forgery. Police forces nationwide have been using the same company’s machines to turn alleged drink-drivers into convicted ones—seizing licenses, imposing fines, and, in some cases, imprisoning people. Defendants have been asking judges to look under the hood of the machine that tests them, only for the breathalyzer maker to refuse to play ball.
These aren’t dystopian hypotheticals, but the reality surrounding a major supplier of breath-alcohol testing machines to cops across America.
Police departments in 11 states use the Datamaster DMT, a breathalyzer the size of a printer. Cops ranging from the Los Angeles County Sheriff’s Department to Vermont State Police have relied on it to test suspected drink-drivers at precinct houses, where—unlike the tests done on the side of the road—results are a major factor in criminal cases.
At least they did. In January, Michigan State Police announced it had suspended its contract with the maker of the Datamaster DMT, Intoximeters, and even mounted a criminal probe into possible fraud by the company in calibrating 203 devices in the state, the Detroit Newsreported.
The cops alleged that two members of the company’s maintenance staff, responsible for the state’s Datamaster DMTs, falsified records on multiple occasions. Police were investigating whether the technicians forged public documents saying they had performed routine maintenance when they had not, thus allowing the machines’ accuracy to erode.
But Intoximeters’ alleged obfuscation is not confined to Michigan.
In fact, the company has resisted at least three Minnesota court mandates that police furnish the source code of its breathalyzer software to defendants, court records and interviews show. Instead of cooperating, Intoximeters has submitted documents saying it is open to police doing so—contingent on various conditions—and then opposed requests to actually follow through.
The code underpinning the Datamaster DMT and other breath testing machines has remained obscure to advocates and defense lawyers for many years, and as a recent New York Times investigation reported, the reliability of breathalyzer devices in general is suspect. But even when courts have compelled cops to reveal the code, the case of Intoximeters shows how they have nimbly evaded disclosure—and risked sabotaging their police clients.
“Unless the court order is addressed to Intoximeters itself, they’re not violating it, but the court could well order the results of a test inadmissible, which would likely result in the case being dismissed without other evidence of intoxication,” said Georgetown law professor Paul Rothstein, author of three books on legal evidence.
Intoximeters, like other industry majors, has long insisted its products are both accurate and cutting edge. In a 2013 press release announcing the company’s acquisition of the Datamaster’s original maker, National Patent Analytical Systems (NPAS), Intoximeters CEO Rankine Forrester said, “We have long felt that NPAS has the best infrared technology in the industry.”
But that doesn’t mean they welcome anyone looking too closely at the inner workings of their machinery.
“Source code is a red herring,” Intoximeters’ counsel Wilbur Tomlinson concluded in his rejection of an October 2018 court order in Hennepin County, Minnesota, after inveighing at length against the prospect: “Testing the instrument itself is the recognized method for determining whether the instrument has an issue. Any problem with the source code that could produce an erroneous result should be detectable by testing the instrument. The converse, however, is not true.”
Even as emerging techniques of modern law enforcement like facial recognition and large-scale data analysis have raised new privacy questions, the breathalyzer has remained ubiquitous in American policing. So have concerns about the precision of their measurements. A Minnesota district court judge found in 2018that the state’s Datamaster DMT machines were falsely rounding up their results. (The company claimed the judge didn’t get how it worked.)
But critics say the legal tactics employed by the companies are just as disturbing as the machines themselves.
“The hallmark of good science is transparency, which is not what Intoximeters is doing,” said Charles Ramsay, an attorney representing defendants in the Minnesota cases. “They safeguard their software more tightly than Microsoft. It’s not because it’s something they need to do to protect their business. They do it to prevent us from discovering the fatal flaws in the software.”
“The consent order does not comply with Intoximeters’ contractual obligation with the State,” Tomlinson wrote in response to an October 2018 Minnesota court order. He asserted that a protective order meant to safeguard Intoximeters’ intellectual property was inadequate, and disputed the qualifications of the defendant’s expert, who wanted to analyze the source code.
When contacted by phone, Tomlinson declined to comment. A spokesperson for Intoximeters itself did not respond to requests for comment for this story.
The company’s fight against transparency is not unique in an industry that has traditionally worked hard to conceal trade secrets. But shoddy design and subpar maintenance by police affecting various breathalyzer brands have had dire consequences for the U.S. legal system. Judges in Massachusetts and New Jersey have invalidated upwards of 30,000 breath tests over the past year alone, according to the Times investigation.
“It’s basically the defendant’s constitutional right to defend himself and confront the evidence versus the need of commercial companies to protect information that they own,” Rothstein said. “There is a societal interest in protecting trade secrets. On the other hand, the defendant’s right is expressly in the Constitution, so that weighs very heavily.”
There may not be a clear winner—the defendant’s right to confront the evidence or protecting IP—until such a forensics case makes its way to the Supreme Court, according to Rothstein.
Until then, part of how companies like Intoximeters get away with this is simple geography: The company is headquartered in Missouri, where a Minnesota judge has no jurisdiction, and Missouri also has not signed an interstate evidence sharing agreement with Minnesota, according to a court order in the ongoing case of a Minnesotan accused of driving while impaired with a suspended license. The man’s driving privileges were revoked for months based on two Datamaster DMT tests.
But even if a technology company like Intoximeters might have legitimate intellectual property concerns, judges have shown signs of cracking down harder on attempts to keep breathalyzers secret in recent years.
Chastising the state commissioner of public safety for not providing the code in a case, Minnesota District Court Judge Andrew Pearson wrote in a December 2019 court order, “The Court points out that this request for discovery of the source code is neither surprising nor unexpected, given Minnesota’s experience with the prior model of breath testing machine or the litigation surrounding it.” The judge also suggested that Intoximeters had failed to cooperate with at least one prior Minnesota court order.
Courts have repeatedly ordered the Minnesota Department of Public Safety (DPS) to supply the source code, according to documents obtained by The Daily Beast. The contract for the Minnesota DPS purchase of Datamaster DMT machines grants the agency the right to share the source code and obligates it to do so at a court’s request, Judge Pearson wrote in December.
But Minnesota DPS won’t submit the code because, spokeswoman Jill Oliveira argued, the agency does not “own, possess, or control” it, making disclosure impossible. By the department’s logic, Intoximeters, the manufacturer of the machines and the software that runs on them, owns the code.
Pearson disagreed. “The Court concludes that the Commissioner does have possession and control of the source code for the purposes of this discovery motion,” he said. The case is ongoing.
That question—whether cops have the ability to disclose the source code of the machines they use to make cases—has divided judges. Another judge in Minnesota, JaPaul Harris, ruled in September that the state did not possess the source code after Intoximeters refused to give it up. But Harris had issued a ruling reaching the opposite conclusion in the same case back in March.
Even Intoximeters itself may not own the entirety of the code: The company said in a 2016 disclosure agreement that there are some elements of the code it does not have the intellectual property rights to share. It has left unspecified exactly who does.
Technical arguments about possession of IP aside, judges and experts say inspecting the source code of breathalyzers remains important because it allows defendants to analyze the methodology used to convict them of driving under the influence.
“If a person doesn’t get to test the evidence that’s relied on to convict them, doesn’t get to confront that evidence, doesn’t get to test the accuracy of that evidence, doesn’t get to air these questions in public, it violates their Constitutional rights to due process,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project.
Judge Pearson seemed to agree. In the December 2019 court order, he wrote, “Given that there is no way to retest this sample on a different machine, source code review of the only analysis that will ever be performed on this now-absent breath sample is that much more crucial and proportional.”
One Minnesota forensic expert said in July went so far as to say he believed the Datamaster DMT produced “bad evidence.”
Other experts say source code analysis isn’t necessary. The National Safety Council Committee on Alcohol and Other Drugs, a safety advocacy nonprofit, issued a position statement in February 2009 asserting that analyzing the source code of a breathalyzer was not “pertinent, required, or useful for examination or evaluation of the analyzer’s accuracy, scientific reliability, forensic validity.” The Safety Council stood by the opinion when contacted by The Daily Beast for this story, and Intoximeters cited the paper in at least one rejection of a court order for disclosure.
Privacy advocates aren’t having it.
“The evidence is presented as being from an infallible, truth-telling computer,” Eidelman said. “But algorithms are human constructs that are subject to human bias and mistakes, which get in the way of their design and use.”
Drink-driving cases involving fights over source code disclosure have persisted for more than a decade. The Minnesota Supreme Court ruled in 2009 that another company, CMI, must make the source code for one of its testing devices available to a defendant. CMI initially declined, claiming the code was a trade secret, but later made it available. Meanwhile, in 2013, a North Carolina judge ruled that Intoximeters could withhold the source code from a defendant.
In 2007, a New Jersey court ruled that a defendant’s experts could analyze a breathalyzer made by Dräger, an Intoximeters competitor. The analysts described it as riddled with “thousands of programming errors,” but the court deemed the machine “generally scientifically reliable,” even if it also had “shortcomings,” according to the Times. The company claimed it quickly fixed the problems.
“There is a problem with junk science in forensics. We’ve seen numerous instances of technologies used in court getting debunked,” Eidelman said. “Public access to information about that technology and the underlying principles has been central in making those challenges successful.”
One source code inspection of a breathalyzer in Washington state made by Dräger revealed alleged flaws so glaring that the analysts commissioned by defense lawyers summed up their findings in a report titled “Defective Design = Reasonable Doubt.” The researchers said the company quashed the report with legal threats, to which Dräger replied that it was only protecting its intellectual property.
But privacy stalwarts say these quiet legal fights over breathalyzer code point to larger trends in the legal system. Those trends do not favor defendants.
Doing 120 mph in a 45 after leaving a bar is not a good idea
It is one of the purposes of youth to do things that can only be justified with the phrase, “We were young, what can I say?” Two GM engineers have allegedly given themselves an excellent opening to use that plea decades hence, after a Kentucky state trooper reportedly caught them street racing pre-production 2020 Chevrolet Corvettes down a city street in Bowling Green, Kentucky. WNKY reports that the incident occurred last Wednesday, January 8, the charges rung up including racing a motor vehicle on a public highway, reckless driving, and speeding 26 miles per hour or more over the speed limit. That last charge means a mandatory court hearing and a potential loss of license. The details laid out on the citation lead us to believe the two engineers could have more to worry about than a fine or needing to bum rides for a few months.
GM employee Alexander Thim, 27, does computer-aided engineering on induction and exhaust systems according to his LinkedIn page, while the same site lists Mark Derkatz, 30, as an electrical engineer. Both men are are temporarily in Bowling Green, home of the Corvette assembly plant, preparing America’s sports car for its retail launch. Going by the description on the ticket, sometime after after leaving the Cue Time Cocktails and Billiards bar in Bowling Green in a trio of Corvettes — Thim in a red one, Derkatz in a white one, an unnamed third GM engineer in a blue one — two of the three decided to hit a back road called Lovers Lane to enjoy the fruits of their labors. On a street with a 45-mph speed limit, Thim allegedly hopped in the left lane and got clocked by radar doing 120 mph, Derkatz took the right lane and got clocked at 100 mph. The third engineer, heeding his good sense or a guardian angel, reportedly didn’t participate in the race and was not cited.
It appears that police either knew something was up, or were merely intrigued by the sight of three of the country’s most important and forbidden-fruit vehicles in patriotic color scheme tooling around on a school night. The report details troopers noticing the three Corvettes at 11:20 pm, then following them for at least a mile as the engineers made their way from the main road to Lovers Lane. Measured from the turn onto Lovers Lane, the police who made the stop were 1.5 miles down the road.
The worst bit is this line from the citation: “The odor of an alcoholic beverage was present on the breath of the operator. PBT detected presence of alcohol.” The trooper didn’t include names, but none of the three engineers were reportedly charged with driving under the influence.
Thim and Derkat were booked and released on $1,000 bail, and will need to deal with a pretrial conference on February 18. The cars were confiscated, towing services hauling them to an impound lot where a representative retrieved them the following day. When Automobile asked GM for comment, the automaker responded, “We are aware of an incident involving our test vehicles and are currently investigating. Safety remains our overriding priority at General Motors. We have no further comment at this time.”
As an aside, seems one of the troopers did have time to comment. A Corvette Forum thread has popped up to run a full CSI routine on the incident, with member DebRedZR1 tracking down a snapchat photo of Thim’s stop. The caption: “GM ain’t gonna be happy with these engineers tomorrow.” Which was probably true.
ONONDAGA COUNTY, N.Y. (WSYR-TV) — This week’s Fugitive of the Week is wanted on two felony county court bench warrants for driving while impaied by drugs.
Carrie Phalen, also known as Carrie Riccardi and Carrie Mayhoefer, was arrested twice in 2017 on charges of driving while impaired by drugs.
Her first arrest in July 2017 was by the Onondaga County Sheriff’s office after a volunteer fireman observed her swerving all over the road. When Phalen pulled into a gas station, the volunteer fireman pinned her vehicle in until authorities arrived.
Phalen’s second arrest came in October 2017 by the New York State Police on the same charges.
Phalen was placed on probation, which was violated in January of 2018.
Phalen is described at 5’3” and 103 pounds with blond hair and green eyes.
Ethyn Buotte was driving drunk and under the influence of drugs when his car hit a tree May 31, 2018, in Weld – resulting in the death of a Dixfield man.
Ethyn Buotte, right, is comforted by his attorney, Jeffrey Wilson on Friday morning in Franklin County Superior Court in Farmington as Buotte reacts to Justice Robert Muller reading the obituary of Griffyn Smith, who was killed in a crash exactly a year ago in a car Buotte was driving. Sun Journal photo by Russ Dillingham
FARMINGTON — A Franklin County justice sentenced a Rumford man Friday to serve three years of a 10-year sentence for driving drunk and under the influence of drugs when his car crashed in Weld on May 31, 2018, and a Dixfield man was killed.
Upon his release from prison, Ethyn Eric Buotte, 19, who pleaded guilty to manslaughter Friday in Franklin County Superior Court, will serve four years probation in connection to the death of his best friend and neighbor, 19-year-old Griffyn Smith.
Smith was well liked and was a four-time state champion wrestler when he attended Dirigo High School in Dixfield. He earned an associate’s degree at college as a precision machinist and had planned to enter the U.S. Navy. He had studied precision machining in college and graduated with an associates degree.
Buotte’s guilty plea was part of a partially negotiated agreement with the sentence being 10 years with the suspended portion of it capped at three years, Deputy District Attorney James Andrews said.
Ethyn Buotte enters Franklin County Superior Court in Farmington Friday morning for his sentencing. Sun Journal photo by Russ Dillingham
The state dismissed a charge of operating under the influence resulting in death.
Andrews read a summary of the facts before Buotte was sentenced.
If the case went to trial, the court would have heard from several witnesses including a front-seat passenger Alysa St. Cyr, police and experts.
According to Andrews, Buotte was 18 and driving a 2008 Toyota Corolla at 71 mph in a 35 mph zone when he lost control of the car at about 11:30 p.m. on the West Side Road in Weld. Smith was a passenger in the back seat of the car. The car started to spin, rolled over several times. The car hit a tree and the roof imploded and came down on Smith. The car continued to spin and Smith was ejected. The cause of Smith’s death was blunt force trauma, Andrews said.
Evidence shows that Buotte had been drinking alcohol and there was a presence of marijuana and had snorted an opioid painkiller — hydrocodone and had taken a prescription medicine in his system.
According to St. Cyr, Buotte moved the car in an attempt to leave the scene. She called 911, according to Andrews. Buotte moved Smith’s body and tried to resuscitate him. Buotte also burned some evidence — a pair of pants to before first responders arrived, St. Cyr told police. He had a blood-alcohol level 0.138% about two hours after the crash, Andrews said.
Defense attorney Jeffrey Wilson said Buotte disagrees with some of the state’s evidence, including that he attempted to leave the scene and burned evidence. Wilson had motions to suppress evidence filed with the court but Buotte told him not to go through with them because he wants to take responsibility for his actions, Wilson said. He withdrew those motions.
There were lots of tears in the courtroom from both side, even after the sentencing was over.Advertisement
This was a fatal crash that resulted in layer after layer of reckless conduct, Andrews said. Buotte also had two contacts with police within two months of the crash, one of those resulted in a conviction on a misdemeanor charge of terrorizing, he said.
Andrews argued for Buotte to serve three years while Wilson argued for nine months and a day. The latter means it would be a sentence to the Department of Corrections and would allow Buotte could continue to better himself.
Ethyn Buotte, right, listens as his attorney, Jeffrey Wilson addresses Justice Robert Muller in Franklin County Superior Court in Farmington Friday morning. Sun Journal photo by Russ Dillingham
“Ethyn has the rest of his life to live and my son has none,” Smith’s mother Cheryl Smith said. She said her family has been very compassionate with Buotte.
“It is only fair he get the full amount,” Smith said, meaning the plea agreement’s three-year cap.
Other family members also asked for him to serve the three years.
Cindy Smith Prakash and Allison Smith Daley, Griffyn’s aunts, both addressed the court. Prakash read from a prepared statement. She told the court her nephew was killed by Buotte’s intentional, selfish and senseless actions. In a cruel twist of fate, it was on his parents wedding anniversary, she said. The car Buotte was driving was unsafe and had two spare donut tires on it, she said.Advertisement
“I can’t imagine the terror that Griffyn experienced,” Prakash said, right before his death. “Griffyn actually cared about you, Ethyn, when others didn’t,” she said.
When she started to cry harder, Daley took over reading the statement.
In part, she said, “A bright shining light of a young man is now gone.”
A case worker for Buotte said for the past six to nine months he has not only worked hard to better himself, he has set some goals with one of them being to speak youth to help them not make the mistakes he made.
Buotte has started to take control of his life, Wilson said, and even went back and finished high school. Buotte was just 18 at the time, barely an adult, and is very remorseful of what happened. Buotte wanted the Smiths kept informed of what was going on in the case. Buotte requested a day be added to the nine months so that he would serve his sentence in the Department of Corrections facility and not a county jail.
Buotte spoke directly to Errin and Cheryl Smith, Griffyn’s parents, and apologized more than once to the family, and he recognized that was not enough. He thinks of Griffyn constantly and wishes he could undo that night. He also apologized to his family and the community.Advertisement
“I will never be able to make this right,” he said.”I want to reach out to young adults to keep them from doing the same things I did.”
Once Buotte was sentenced and before he was taken into custody, he spoke to the family personally. It ended with a handshake from Smith’s father and a hug from Smith’s mother.
WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday wrestled with whether police need a court-issued warrant to draw an unconscious suspect’s blood in a case involving a Wisconsin man convicted of drunken driving based on blood obtained without his consent.
The nine justices appeared divided over the case as they heard about an hour of arguments in an appeal by the man, Gerald Mitchell, of state court rulings that endorsed the ability of police to test blood drawn from an unconscious person.
Mitchell appealed a ruling by Wisconsin’s highest court that the blood draw did not violate the U.S. Constitution’s Fourth Amendment protections against unreasonable searches. Police drew the blood, which showed his blood-alcohol concentration far above the state’s legal limit, after finding Mitchell shirtless, wet and covered in sand near the shores of Lake Michigan.
At issue is a Wisconsin law that assumes motorists automatically give consent to tests of their breath or blood simply by driving on the state’s roads, even if they are unconscious. More than half the 50 U.S. states have similar laws.
Chief Justice John Roberts and Justice Samuel Alito, both conservatives, appeared sympathetic to Wisconsin.
“Ignorance of the law is no excuse,” Roberts said, invoking a old legal maxim. “Why do you need them to sign a piece of paper?”
Alito noted that agreeing to a blood draw could be viewed as “a condition to the privilege of driving” on Wisconsin’s roads.
Liberal justices appeared to sympathize with Mitchell. Justice Sonia Sotomayor said although motorists generally know that driving under the influence is illegal, whether they are aware blood can be drawn without consent is a different issue.
“This is not quite ignorance of the law. This is something substantially different because you’re talking about … knowledge that your body can be invaded by police to secure evidence to prove you drove intoxicated,” Sotomayor said.
Fellow liberal Justice Elena Kagan said a law like Wisconsin’s works fine when drivers are conscious because they can withdraw consent when police ask for a blood draw.
“But that falls apart in this situation of the unconscious driver,” Kagan added.
The Supreme Court in recent years has limited police ability to draw blood without a warrant and without a motorist’s consent, and frowned upon criminal penalties against people who refuse to consent to a blood draw.
The case dates to 2013 in Wisconsin’s Sheboygan County when Mitchell’s neighbor called police to report that Mitchell had driven away in a van, apparently drunk, and may have been suicidal. He had taken about 40 pills along with vodka mixed with the soft drink Mountain Dew, according to court filings. Mitchell later testified he had been depressed and suicidal.
After police found him, Mitchell fell unconscious as authorities drove him to a hospital, where they ordered staff to draw his blood for an alcohol concentration test despite not having a warrant. Police charged him with operating a vehicle while intoxicated.
Greg Willis, Willis Law Firm, Atlanta (Courtesy photo)
The Georgia Supreme Court’s unanimous opinion Monday barring a drunken-driving defendant’s refusal to take a blood test from being used as evidence at trial is being portrayed as a bombshell ruling threatening to undermine law enforcement’s ability to keep impaired drivers off the road.
In fact, as Justice Keith Blackwell noted during oral arguments last year, an array of amicus briefs filed by the Office of the Attorney General, Prosecuting Attorneys’ Council of Georgia and district attorneys from Cherokee, Gwinnett and Athens-Clarke counties weighing in to support the state’s implied consent law presented a “sky is falling” scenario if the justices ruled exactly as they did.
But the lawyer who argued and won the case said he believed the outcome was likely all along.
“I would like to say that this was some magnificent legal work, but it’s really just straight black-letter law,” said Willis Law Group principal Gregory Willis. “My entire argument was that the Georgia Constitution has been interpreted this way since 1879. Every one of our constitutions has used the same language.”
Willis’ client, Andrea Elliott, was stopped by Athens police in 2015 and charged with driving under the influence of alcohol and other offenses. She was read the Georgia “Implied Consent Notice,” which notifies drivers they are required to submit to blood, breath or urine tests. Drivers also are told that refusal to comply can result in their license being suspended and that refusal can be offered as evidence at a criminal trial.
Elliott refused to take a breath test and was arrested and jailed.
Her lawyer filed a motion to suppress the evidence, which the trial court denied.
During oral arguments last April, Willis argued that the use of Elliott’s breath test at trial was a violation of her constitutional protections against self-incrimination under the U.S. Constitution’s Fifth Amendment and the Paragraph XVI of the Georgia Constitution.
Athens-Clarke County Chief Assistant Solicitor William Fleenor argued the requirement to take a test is not a “coerced action” but is instead part of the agreement between a driver and state laying out the duties and obligations necessary to drive in Georgia.
If the justices did feel there might be constitutional concerns, he said, the state has a compelling interest in keeping impaired drivers off the road. The statute is narrowly tailored to meet that interest and thus meets the “strict scrutiny” necessary to pass constitutional muster, he said.
Fleenor’s arguments were met with skepticism, particularly an assertion that his office could find no case law asserting the Fifth Amendment is a “fundamental right” that can be subjected to strict scrutiny.
Monday’s 94-page opinion overruling the lower courts harkened back to a 2017 ruling inOlevik v. State, S17A0738, that said forcing someone to take a breath test was unconstitutional.
Monday’s opinion, penned by Justice Nels Petersen, said Georgia’s Constitution actually goes beyond the U.S. Constitution’s guarantee against being forced to testify against oneself.
“Based on the well-established meaning given to the constitutional right against compelled self-incrimination and carried forward into subsequent state constitutions, we concluded that a breath test is an act incriminating in nature and, therefore, Paragraph XVI prohibits the State from compelling such a test,” according to the opinion.
Such evidence may not be introduced in a criminal trial, Petersen wrote, although he observed that the General Assembly may want to “revise the provisions of the implied consent law, particularly the content of the implied consent notice.”
Willis said he was encouraged by the justices’ strong reaction during oral arguments to the state’s suggestion that the Fifth Amendment may not be a fundamental right but also by the fact that it has no case law supporting its position.
“The argument really comes down to self-incrimination,” Willis said. “If you look at what the Fifth Amendment and Paragraph XVI protect, the rights are very similar. The state could not provide a single case under the Fifth Amendment or state Constitution where someone invoked their right prior to trial, and it was still submitted as evidence.”
“Whether it’s the right to not to blow into a machine, give a handwriting sample … they could not provide a single example,” he said. “They asked the court to reverse an unbroken line of cases back to 1879 and prior to that.”
The opinion noted that a blood or urine test can still be obtained if an officer gets a warrant, which happens “every day,” Willis said.
“I’m of the opinion that this implied consent warning should have been changed years ago,” Willis said.
“They need to take out that section about Georgia law ‘requiring’ you to submit,” he said. “You have a constitutional right to refuse testing.”
“I’m just proud of our Supreme Court for empowering the law as required,” he said.
Athens-Clarke County Solicitor Carroll Chisholm said officers there will adjust their procedure for DUI arrests accordingly.
“Our local law enforcement will continue to enforce the DUI laws here in Athens-Clarke County,” said Chisholm in an email.