The Great 2016 U.S. Supreme Court Freakout: DUI's

Every year there is a freak out over some decision from the U.S. Supreme Court. Sometimes, it's mostly a tempest in a teapot and that seems to be the case with this year's big paroxysm, Birchfield v. North Dakota, JUN16, USSC No. 14-1468.

Birchfield is a consolidation of three different drunk driving cases. It's poorly organized and requires at least a couple readings before you can suss out its organization and ruling. Everyone seems to be jumping to the false conclusion that it changes things an incredible amount, but if you actually read it rather than just listening to third person hype it doesn't (at least not in Virginia).


QUESTION:

The question is poorly laid out in the opinion so I'll quote the two sentences exactly:

The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches. 

Put more succinctly, can the government impose criminal sanctions for a person refusing testing to see if that person is intoxicated?


ANSWER:

The answer? Yes for breath tests. No for blood draw tests.


CASE ORGANIZATION:

The case rambles around, but it is organized into three possible rationales. First, do exigent circumstances justify the testing? Second, does search incident to arrest justify testing? Third, does implied consent justify testing? These three are confused in that the case is addressing both breath test and blood draws across the three questions.


EXIGENT:

To begin with, the court reiterates its holding in Missouri v. McNeely, APR13, USSC No. 11-1425, that while there are circumstances, to be determined on a case-by-case analysis, that justify an exigent blood draw the fact that the body metabolizes and removes the intoxicant is not enough by itself to make an exigent circumstance.


SEARCH INCIDENT TO ARREST:

A breath test is allowed as a valid search incident to an arrest because there is no expectation of privacy in air in the lungs and it can only provide evidence of drunkeness.

A blood test is not a valid search incident to arrest because the breath test is available, it is a significant bodily intrusion, and it can be used to develop evidence of more than drunkeness.


IMPLIED CONSENT:

The Court starts by stating very clearly,

Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.

So, under implied consent, non-criminal penalties for refusing a blood test are still valid. However, the court makes short shrift of the argument that criminal penalties should still be allowed.

Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

APPLICATION UNDER VIRGINIA LAW:

First, let's set out what the rule of this case is: A government cannot criminalize the refusal to submit to a blood test in order to prove drunk driving.


APPLICABLE VIRGINIA LAW:

§ 18.2-268.3(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.

The green part is clearly allowed. The parts in yellow are allowed for breath tests, but not for blood tests. It's as simple as that. Here's the only thing which needs to change in the way in which officers handle DUI's in Virginia: When the officer reads implied consent for a blood draw he cannot mention any possibility of a criminal prosecution. If he does and the suspect relents and allows the blood draw it will be suppressed by the courts.

Otherwise, everything is just the same as it was. Carry on. Nothing to see here. At least until the Supreme Court goes back in session this Fall and people find some other tempest in a teapot to make them start screaming about falling skies again.

Service Dog Fraud

Sadly, one of the statutes just put in place by our legislature is one putting a $250 fine on fake use of a dog under claim that it is a service dog. You'd think this wouldn't be much of a problem, but I know that I have spoken with more than one inn keeper about people claiming that all sorts of dogs are service animals in order to keep Spot with them in their hotel room. So, I thought I'd try to put down what the state of Virginia law is in this matter.

To begin with, let's look at the new statute: 

§ 51.5-44.1. Fraudulent representation of a service dog or hearing dog; penalty

 Any person who knowingly and willfully fits a dog with a harness, collar, vest, or sign, or uses an identification card commonly used by a person with a disability, in order to represent that the dog is a service dog or hearing dog to fraudulently gain public access for such dog pursuant to provisions in § 51.5-44 is guilty of a Class 4 misdemeanor [up to $250 fine].

I can't find anything under Virginia law specifically set up to give a handicapped individual a specific ID card. Maybe the DMV issues cards listing specific disabilities as part of providing ID cards. Consequently, I think the manner in which service dogs are identified is by the equipment they are wearing. In fact, that seems to be the exact method of identification called for in § 51.5-44(E):

 E. Every totally or partially blind person shall have the right to be accompanied by a dog in harness trained as a guide dog, every deaf or hearing-impaired person shall have the right to be accompanied by a dog trained as a hearing dog on a blaze orange leash, and every mobility-impaired or otherwise disabled person shall have the right to be accompanied by a dog, trained as a service dog, in a harness, backpack, or vest identifying the dog as a trained service dog, in any of the places listed in subsection B without being required to pay an extra charge for the dog, provided that he shall be liable for any damage done to the premises or facilities by such dog.

 Notice that there are only three types of service dogs allowed and each has to be wearing some sort of identifying device. This is the only real identifier that an inn keeper could use to differentiate Spot the pet from Spot the service dog. To be fair, one would expect that in the vast majority of cases it will be clear if someone has vision, auditory, or mobility problems.  However, the "otherwise disabled" leaves a lot of wiggle room. And if anybody wanted to cheat in that area it is ridiculously easy to buy the gear which proclaims a dog is a service animal.

The only real limit here is that "[t]he provision of emotional support, well-being, comfort, or companionship shall not constitute work or tasks for the purposes of this definition."  Va. Code § 51.5-40.1.

In the end, I have to conclude that hotels and motels should be within their rights under Virginia law to refuse service to people without the obvious handicap who don't have the dog properly outfitted. Beyond that, if anyone is caught faking they could end up coming to court to get fined. If the innkeeper is suspicious he should call local law enforcement to investigate.