26 April 2013

CrimLaw CLE

Today, I am helping to teach a CLE session on Criminal Law in Virginia. If you are interested, the power point presentation I plan on using is HERE.

Full breakdowns of the cases for the last year-plus are located HERE.

Some of the cases I will be discussing today are cases which I have previously discussed here on the blawg.

Missouri v. McNeely

Florida v. Jardines

U.S. v Jones

Baker v. Commonwealth

18 April 2013

Missouri v. McNeely, DUI's, & Implied Consent

Holding of the case: The metabolizing of alcohol in the blood is not an exigent circumstance justifying the drawing of blood without a warrant.

Implications of the case:  The drawing of blood is a 4th Amendment matter and the 4th Amendment is not nullified by implied consent (raises the question of constitutionality of charging refusal).
Yesterday there was a bit of a kerfuffle when the US Supreme Court put out Missouri v. McNeely.  Mostly, this was because of the way Missouri law enforcement (and maybe their statutes) dealt with refusal to to submit to a breathalizer or blood test when an officer has probable cause to believe a person has driven under the influence of intoxicants.  The Missouri solution?  Take the person to the hospital and take a blood sample against the person's will.

Missouri argued that this had to be done because the human body filters out alcohol as time progresses and this was an exigent circumstance.  The trial court, the Missouri Supreme Court, and the U.S. Supreme Court all rejected this argument. So, Missouri gets credit for persistence, but it loses a whole lot more because it does not understand the definition of "exigent."  All the courts listed above ruled that a human body metabolizing alcohol, absent something more, is not exigent.  It's just a normal bodily function. The U.S. Supreme Court went on to say that in the modern era we have these things called "phones" which can be used to call whomever an officer needs to in order to get a warrant in a timely manner.

All this rises out of "implied consent."  Every State has some form of this legal theory and at its core it makes sense. If you decide to drive the roads of Virginia the implication is that you will follow the laws in doing so.  You'll drive the posted speed; you will stop at stop signs; you will not drive intoxicated. It's basically an agreement to follow a social compact for the road. However, implied consent then gets pushed beyond the area of the driving social compact into the realm of the foundational rights we have baked into our system through the Constitution. Implied consent is held (universally as far as I can tell) to require a DUI suspect to cooperate in the gathering of evidence against herself by agreeing to breath or blood test.  As such, it comes into conflict with the greater social compact of the US Constitution and its guaranties against searches without a warrant.

Virginia's way of handling this was to pass 18.2-268.3, a "refusal" statute.  The pertinent part of this is subsection D:
D. A first violation of this section is a civil offense and subsequent violations are criminal offenses. For a first offense the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2

 If a person is found to have violated this section and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270, arising out of separate occurrences or incidents, he is guilty of a Class 2 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2.

If a person is found guilty of a violation of this section and within 10 years prior to the date of the refusal he was found guilty of any two of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor and the court shall suspend the defendant's privilege to drive for a period of three years. This suspension period is in addition to the suspension period provided under § 46.2-391.2
Thus, in Virginia (and I suspect most States) the officer does not take a refuser to a hospital and force him to submit to an unconstitutional blood draw.  In the vast majority of cases he merely files another complaint to the magistrate and gets a refusal warrant issued against the suspect.  If the officer feels the circumstances are such that there is a reason he needs a blood draw without the suspect's acquiescence, the officer can also ask for a search warrant from the magistrate.  Of course, if there are actual exigent circumstances (best be able to justify it in court) an officer could arrange for a blood draw without a warrant.

The Affect Of McNeely on Virginia Law:

At least initially, not much.  Because Virginia does not authorize taking someone's blood without a search warrant or actual exigent circumstances, things will continue as they have.

In the longer term, the refusal statute may be in trouble.  The Virginia Appellate courts have consistently held that the implied consent waives the 4th Amendment:
We also find no Fourth Amendment violation in punishing a DUI suspect for refusing to provide a breath sample under Code § 18.2-268.3. As a general rule, a search authorized by consent is wholly valid. The general rule applies here because Rowley, like all drivers, consented to submit breath samples by exercising the legal privilege of driving on the Commonwealth's roads. See Code § 18.2-268.2(A). This consent is not "qualified" or "conditional. To allow it to be unilaterally withdrawn would virtually nullify the Implied Consent Law.

Rowley's Fourth Amendment challenge to Code § 18.2-268.3 thus fails for the very reason Code § 18.2-268.2(A) succeeds. The act of driving constitutes an irrevocable, albeit implied, consent to the officer's demand for a breath sample. See Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir.1986) (holding that there "is no Fourth Amendment right to refuse a breathalyzer examination"). The trial court, therefore, correctly rejected Rowley's Fourth Amendment claim.
Rowley v. Commonwealth, 48 Va. App. 181 (2006)(multiple cites and quotation marks removed).
In McNeely it is clear that Missouri has an implied consent law of its own:
Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution.
 And yet, the U.S. Supreme Court clearly recognizes a 4th Amendment right against the seizure of the blood when a person refuses to submit. In its discussion of Schmerber v. California, 384 U. S. 757 (1966) the Court plainly states that it held "the warrant requirement applied generally to searches that intrude into the human body."  While not addressed directly, implied consent for taking a blood or breath sample seems to be in an extremely tenuous position post McNeely.

10 April 2013

The Constitution: True American Common Criminal Law

So far, as we have discussed, in criminal law the American common law project has fallen into discord. There are three major sets of laws in the United States: the model penal code common law, the traditional American common law, and federal criminal laws. Even among these major streams of there are further variances as courts not subject to superior review decide differently on the same issue or legislatures adopt different laws in relation to the same issue.  In other words, in the United States, the common law project has failed.

Except in one area.

The one true area of American common law is constitutional interpretation.  In fact, ConLaw is common law triumphant.  Of course, whenever you say this people go apoplectic.  They'll all splutter something about Constitutional Law being unique and different.  It's not a rational reaction; it's simply the response of people who have been taught to think of the Constitution as incomparable holy writ rather than an act.  Of course, they are wrong.

As previously discussed, the British common law had no problem incorporating acts into common law.  One sovereign meant that as soon as an act was made law it, by definition, became the common law.  In the United States many do not understand this as part of the common law because in our separate sovereigns system there were 51 sovereign legislatures passing laws which, by definition, could not become the common law of the land.  Thus, American jurists are programmed to overlook the one sovereign act which is common to the entire nation: the United States Constitution.

The Constitution by its very definition is common to us all.  As well, case law under it develops exactly as common law is supposed to. Issues are addressed by lower courts either in the federal circuits or the State appellate courts and if there is a major disagreement as to how a particular constitutional provision is to be applied there is a single authority, the United States Supreme Court, which can provide a final answer.  There is also a process wherein the body of constitutional law can be changed legislatively by the sovereign, overruling even the Supreme Court, although recourse to this is exceedingly rare because it is extremely difficult (Amendment).  In any event, the presence of a single authority ruling on a singular set of laws applicable to the entire nation makes constitutional common law triumphant.

However, as in all common law, the fact that there is a final authority does not make decisions made by that authority well reasoned or even correct.  It just makes them final.  A perfect example of this in recent times has been the US Supreme Court's jurisprudence as to dog sniffs.  The Caballes decision declares that when a dog sniffs at an object and reveals something inside that object no search has occurred.  It is an incredibly flawed decision. Nevertheless, by virtue of being decided by the final authority, it is the common law of the entire land.

It is also clear that constitutional common law decisions do not have to reflect a majority position.  Constitutional common law decisions have overridden the laws of a significant number of States or a majority.  Most recently, this has been seen in the US Supreme Court's hostility to punishment for minors expressed in  its rejection of the death penalty for those under 18 years of age (overriding the laws of 25 States) and its rejection of mandatory life sentences for those under 18 who commit certain murders (overriding 28 States and Congress).

Constitutional common law merely provides finality; often it is a choice between two possibilities neither of which is necessarily correct.  For instance, in a trial post Miranda the prosecution is not allowed to mention the fact that a defendant refused to talk to the officer about the case.  As more recent Supreme Court opinions have reminded us, the purpose of the 5th Amendment is to prevent coerced confessions.  Theoretically, it keeps officers from beating confessions out of people (whether they are guilty or not) by making any coerced confession inadmissible.  All-in-all, a good idea.  However, there's nothing particular to stopping forced confessions that would require that a defendant's voluntary silence should not be commented on in trial.  If a defense is offered first at trial and the defendant would have known about it when the officers tried to question him, but he invoked his right to remain silent and the officer stopped questioning him, how would allowing the prosecution to comment on the refusal tend to encourage officers to coerce a confession out of defendants? 

All of the above are exemplars of American common laws brought about under the auspices of the United States Constitution (4th, 5th & 8th Amendments).  Thus, while the common law seem irretrievably broken in many micro-aspects because of the separate sovereigns, in a macro-aspect it provides an overarching common law framework which has become more and more restrictive as time has passed.

03 April 2013

The Model Penal Code Experiment: Failure to Create a New Common Law

Part 1          Part 2

Okay, when we last left American common law, it had fallen apart because there were fifty-one supreme courts and fifty-one legislatures messing with it. Then, the federal courts washed their hands of participation in the common law project.

Into this void stepped a number of non-governmental actors including most prominently the American Law Institute. The ALI project which is most pertinent to this blawg is the model penal code. In this, the ALI promulgated an entirely new criminal code meant to replace the varied criminal codes and case law developments around the nation. This attempt to create a new American common law has not been nearly as successful as other ALI projects. The MPC was promulgated in 1962 and through the 60’s and 70’s a number of States adopted large parts of it. However, no State’s criminal code adopts the MPC in its entirety and about a third of the States and the federal government rejected it entirely. This would not have been so much of a problem had the ALI’s Model Penal Code been a restatement of American common law. It was not. The ALI decided it could do better and rewrote large sections of law in a direction different from existing American common law. In so doing, and thereafter failing to gain adoption across the board, the MPC added to the cacophony rather than dampening it. Now, there are three conflicting streams in American criminal law. A third of the States still have criminal codes with roots in old American common law. Two thirds of the States have criminal codes which are (at least in significant part) tied to the MPC. The federal government is off wandering in its own briar patch of unique criminal law.

Even worse, the MPC failed to deal with certain matters. Most significant among these was probably illicit drugs. Consequently, every State, whether an MPC common law State or a traditional common law State has gone off and developed its own law dealing with their illegalization. The only “common” part for most of these laws actually comes from federal example in the scheduling of drugs. Other than that, they vary widely from State to State.

As well, some parts of the MPC are now out of date. The example I have seen given most often in this regard is the marital rape exception. In times gone by, the law considered sex a wifely duty and therefore, a man could not commit rape by taking what was his due. The MPC adopted this marital rape exception. Of course, in modern times this has been roundly condemned and rejected as States have written it out of their laws. It remains in the MPC.

To be fair, the ALI is trying to update the portions of the MPC having to do with Sentencing and Sexual Assault. However, the politicization of the ALI (which became extremely clear when it removed capital punishment from its sentencing) put it out of touch with the great majority of States and citizens. This almost surely dooms the Sentencing project. So far, to the best of my knowledge, no controversy has surfaced concerning the Sexual Assault project. Nevertheless, it does not seem that the ALI's penal code is in favor anymore. It has been over thirty years since the last State which was going to adopted a variation of the MPC and it seems quite likely that the ALI's attempts to change its penal code and further influence the nation's criminal law is a form of whistling in the dark.

So, in the end the ALI's MPC has not streamlined American criminal law (although it probably simplified criminal law in particular States). Instead, when it failed in a third of all States to supplant traditional American common law with its new and improved common law it created a great split. On one side are a sizable minority of States which have stayed “common law” and rely on laws and practices as they have developed in court and have roots as far back as the Magna Carta. On the other side is a majority of States who to some extent have replaced that with a penal code created in the 1950's – 60's. By their very natures, the two systems do not interact well with each other and thus, inadvertently, the MPC did much damage to the idea that all States could move in the same direction with their criminal laws. Additionally, the penal codes based upon the MPC have been fraying for the very same reason that the traditional American common law did. Each State which adopted parts of the MPC has now had somewhere between thirty to fifty years for legislatures to fiddle with the statutes and courts to develop divergent interpretations. Without a centralized authority capable of providing a binding final answer, the MPC was just as doomed as traditional American common law.

01 April 2013

An Open Letter to Harvard & Yale

Good Day,

Thank you for your interest, but I am satisfied by my current employment and not interested in leaving Virginia to come to either of your schools. While I appreciate the offers of fully tenured employment and the salary proposals are impressive, I must ask you to stop this unseemly bidding war. Currently, the salaries you are both offering are high enough that they are basically indistinguishable. Were I interested, I would make the choice on merit - not the additional twenty thousand dollars blocks of money with which each of you keeps topping the other. You are rapidly approaching the point at which you will begin embarrassing yourselves and I must ask you to desist.

I understand that you both are desperate to find someone to teach criminal law and related classes who has actually spent time practicing law and has been the lead attorney on a few dozen juries. I also agree that the fact I have spent time as both a defense attorney and prosecutor gives me a good perspective from the trenches. In so far as we agree on these points, perhaps I would have been a good fit at one of your institutions.

However, the advanced classes you were asking me to teach were not things which I feel relevant to the practice of law. Yes, I have studied Arabic and Hebrew. Nevertheless, I fail to see how “Shariah as a Blueprint for Reforming Modern American Criminal Law” and “The Tanakh and Talmud as Underpinnings of the Model Penal Code” will be helpful to students who actually plan to practice law. Certainly, they would be fun to teach, but I do not believe my personal foibles should be allowed to sidetrack the education of those who will most likely be leading the legal profession into the future.

As well, the dog issue remains unresolved. As you know, I have a german shepherd and labrador retriever and I am rather attached to them. Sadly, I not convinced that either the environs of New Haven or Boston are favorable for dogs. The last time I was in New Haven I walked through town and saw no dog larger than an ankle nipper and I have never seen any dogs in Boston. Of course, as any dog lover knows, this is a deal breaker. Abandoning Laddie and Holly would be an unconscionable act and I cannot bring myself to commit that wrong.

Again, I am sincerely honored and humbled by your generous offers. Walking in the door with a fully tenured position and a yearly salary over five times what I now earn is very tempting. However, I must regretfully decline your offers.


Ken Lammers Jr., Esq.