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July 18, 2016
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MORE SUCCESS ON A 2ND TIME DUI
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3rd Dui in less than ten years BY CLIENT DANIEL N.
I was charged with a 3rd DUI in ten years, driving on a suspended license, and violation of my summary probation. With a BAC of .14 and two previous DUI's within ten years, in two different counties, attorney Silva not only won my DMV hearing, but then proceeded to reduce a 3rd DUI in ten years charge, in Riverside County, down to a misdemeanor drunk in public with no violation of probation, no jail time, and a fine of 500 dollars. Attorney Silva handled my case with the utmost professionalism and proposed an ambitious plan of attack. Attorney Silva advised that we go straight to trial and that he was confident he could beat this. Taking into account his decade plus years of experience in the field, I put my faith in Attorney Silva's judgment and expertise, and I ponied up for trial. A few weeks before the trial, the DA contacted Attorney Silva and Silva negotiated what we would plead to. If you are willing to step into the arena, Attorney Silva will champion your cause. In summation, Attorney Silva has the gumption and the expertise to secure you the best possible outcome of your case.
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ROMERO G: was charged with an alleged .11 BAC after he was stopped for having no rear license plate. What made the negotiations even tougher was the fact Romero picked up a 14601 (driving on a suspended license) a few months after his dui. We aggressively fought the charges and on day of trial we got the dui DISMISSED as well as a DISMISSAL on the 14601 and the only thing he pled guilty to was a traffic infraction for not having a license plate on his car, and this was in a Riverside County Courthouse.
CARLOS Z: was charged with an alleged .21 dui after he was stopped for squealing his tires while doing a U-turn. We lost the DMV hearing which suspended his COMMERCIAL LICENSE for 1 year. We filed a motion to suppress challenging the cop's reason for the stop. We were able to resolve the case by having Carlos plead to a wet/reckless BUT we had language in the plea bargain which overturned the dui suspension at the DMV. Instead of not being able to drive his big rig for a year and losing his job, we were able to get Carlos back in his truck in less than 2 months.
CASE DISMISSED- 2nd time offender
I was facing a DUI charge and a driving on a suspended license charge. Five years previous to these charges I had also been arrested for another DUI. Being a second time offender I had my doubts that I would beat these charges. Mr. Silva was able to answer any questions I had which really helped me get through this depressive situation and my anxiety. If convicted I would have lost my job, yet the DA still was not willing to negotiate any type of deal that would prevent me from losing my job. Mr. Silva really made me confident that we would win even with my record so I decided to put my faith and trust in Patrick Silva and decided we would take my case to trial.
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Charles G. COPELIN, Appellant,
STATE of Alaska, Appellee.
Joe Ray MILLER, Appellant,
ANCHORAGE, a Municipal Corporation, Appellee.
Nos. 5453, 5708.
Supreme Court of Alaska.
February 18, 1983.
1207*1207 Daniel Westerburg and Stanley Lewis, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, for appellant Copelin.
1208*1208 Jeffrey M. Feldman and James D. Gilmore, Gilmore and Feldman, Anchorage, for appellant Miller.
Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee State of Alaska.
David G. Berry, Municipal Prosecutor, Theodore D. Berns, Municipal Atty., Anchorage, for appellee Anchorage.
Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.
In separate cases, Charles G. Copelin and Joe Ray Miller were convicted of violating state and municipal drunken driving prohibitions. These convictions were upheld by the Court of Appeals. We granted Copelin and Miller's petitions for hearing in order to review whether the police may refuse the request of one who is arrested for driving while intoxicated to consult an attorney before deciding whether to submit to a breathalyzer test. A second issue, raised only in the case of Copelin, is whether a judge may consider one's refusals to submit to such breathalyzer tests in sentencing proceedings.
We have concluded that when a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, AS 12.25.150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test. Where, as here, the arrestee is denied that opportunity, subsequently obtained evidence must be suppressed, and we accordingly reverse these two cases.
On September 16, 1979, Charles G. Copelin was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of state law. AS 28.35.030.On April 16, 1979, Joe Ray Miller was arrested for operating a motor vehicle while his blood alcohol level exceeded .10 percent, in violation of a municipal ordinance 1209*1209Anchorage, Alaska Municipal Code § 9.28.030 (1978).
Following their traffic stops both Copelin and Miller were taken into custody and transported to law enforcement headquarters. Both Copelin and Miller were asked to submit to breathalyzer examinations and both responded to this request by expressing a desire to contact their attorneys first. Permission was denied. Both Copelin and Miller were told that they did not have the right to contact counsel until after they decided whether to take the test.
Copelin did not take the breathalyzer test, did not perform requested field sobriety tests, and was videotaped throughout this refusal. Miller did take the breathalyzer test. Following their respective arraignments, Copelin moved to suppress the videotape of his actions and Miller moved to suppress the results of his breathalyzer test. These motions produced conflicting results in the district and superior courts and eventually made their way to the Court of Appeals. The Court of Appeals affirmed the convictions of both Copelin and Miller, holding that there was no error in the failure to suppress Copelin's videotape, no error in the failure to suppress Miller's breathalyzer test results, and no error in considering Copelin's past refusals to submit to breathalyzer tests in imposing sentence. dui attorney in san bernardino county
Copelin and Miller contend that they had a statutory right of access to counsel which was violated by law enforcement officers' denial of their requests to speak with their attorneys. We agree.
1210*1210 AS 12.25.150 sets forth the rights of a prisoner after arrest. Subsection (b) of that statute provides:
"Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested." (Emphasis added). dui attorney in san bernardino county
The language of this statute is clear and unambiguous and mandates that every arrestee have the right to telephone or otherwise communicate with his attorney immediately.This mandate was viewed by the legislature as sufficiently important to warrant criminal and civil penalties for its willful or negligent violations.
Relying on this court's interpretation dui attorney in san bernardino county of AS 12.25.150(b) in Eben v. State, 599 P.2d 700 (Alaska 1979), the Court of Appeals found Copelin and Miller's invocation of that statute to be misplaced. In Eben, we stated:
"[AS 12.25.150(b)] is not concerned with implementing dui attorney in san bernardino county an arrestee's right to consult privately with his or her attorney, but with right to contact an attorney, relative or friend for the purpose of arranging bail or legal representation."
Id. at 710 n. 27.
However, there is nothing in the language of the statute which dui attorney in san bernardino county suggests any limitations on the type or nature of communication which an arrestee may have with his attorney following arrest. In fact, in Eben, this court noted:
"[W]e caution that to the extent deemed appropriate in light of the dui attorney in san bernardino county circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend."
Id. By recommending that private communication be allowed where feasible, this court implicitly recognized that the opportunity to consult and communicate with an attorney and to receive legal advice was also a contemplated purpose of the statute. To the extent that language in Eben indicates that the sole purpose of AS 12.25.150(b) is to aid an arrestee in the attainment of bail or legal representation, it is 1211*1211 disavowed. We hold that one intended purpose of AS 12.25.150(b) is to provide an arrestee with the opportunity to obtain legal advice.
We now must determine what the legislature intended when it gave an arrestee "the right to telephone or otherwise communicate with his attorney" "immediately after an arrest" in the context of a driving while under the influence (DWI) arrest. The state and the municipality argue the right to consult an attorney "immediately" means after any sobriety tests are administered. They argue that since the evidence which these tests are designed to detect dissipates quickly, it would be impracticable, unreasonable, and contrary to the intent of the implied consent statute to allow prior consultation. We disagree. "Immediately" means just that. This "destruction of evidence" argument does not preclude the limited statutory right of access to counsel that Copelin and Miller are seeking.
In Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), we weighed the benefits of assistance of counsel against the possibility that requiring such assistance following an arrest for driving while intoxicated and prior to field sobriety tests would interfere with the acquisition of relevant evidence. Id. at 1192. We are mindful of the important state interest in obtaining reliable evidence of an arrestee's blood alcohol level and the fact that alcohol concentration will dissipate with the passage of time.
However, the proper procedure by which breathalyzer examinations are to be given in Alaska as set forth in 7 Alaska Admin. Code § 30.020 requires that the test subject be observed by the test operator for at least 15 minutes immediately prior to testing to assure that the subject does not vomit or place anything in his mouth which might invalidate the test result. Since a minimum of a 15 minute wait is necessary before administering the breathalyzer test, no additional delay is incurred by acceding to a request to contact an attorney during that time.
The statutory right to contact and consult with counsel is not an absolute one (which might involve a delay long enough 1212*1212 to impair testing results), but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes.
The municipality argues that it is not clear whether Miller would have been able to contact his attorney within any specific time period. The state points out that Alaska does not by statute establish a period of time during which the breathalyzer must be administered to guide the court in prescribing a time limit. Both of these observations are valid. Reasonableness will depend on the circumstances of each case, such as the amount of time between the stop and the transportation to the station, when the request is made, and how much time is needed to set up the test. If the attorney cannot be contacted within a reasonable time the suspect must decide without the advice of counsel, whether to take the breathalyzer test. As both Copelin and Miller were denied any opportunity whatsoever to contact their attorneys, they were denied their statutory rights.
The state and the municipality next contend that since there is "no right to refuse" to take the breathalyzer tests, any right to consult an attorney would be meaningless to the accused. In Graham v. State, 633 P.2d 211 (Alaska 1981), we stated:
"Under Alaska law, as in most other jurisdictions, one arrested for operating a motor vehicle while under the influence of intoxicating liquor has no constitutional or statutory right to refuse to submit to a breathalyzer test.Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979); Wirz v. State, 577 P.2d 227, 230 (Alaska 1978). Nor does he or she have the right to have counsel present before being required to take the test. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). Since there is no right of refusal, we have also held that it is not necessary to inform the person arrested that he or she can refuse the test, in order to render the test results admissible.Palmer v. State, 604 P.2d 1110."
Id. at 214 (footnote omitted).
The prosecuting authorities in the present case have seized upon the language that there is "no right to refuse" to take the breathalyzer test to argue that there is no issue as to which the advice of an attorney might help to preserve any of the accused's rights. The state goes a step further, insisting that it cannot conceive of any ethical or lawful assistance which a criminal defense attorney could render for a client arrested for drunk driving who is asked to take a breathalyzer test.
These arguments misperceive what is meant by "no right to refuse." There may be no right to refuse a test for determining blood alcohol level in the constitutional sense. SeeSchmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). And, there may be no right to refuse in the statutory sense, in that the arrestee will suffer adverse legal consequences in the form of suspension or revocation of his driver's license. AS 28.35.032. However, the statute does not deprive an accused of the power to refuse to submit to the test: if the suspect refuses to submit to a breath test, nochemical analysis of his breath, blood, or urine may be given. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) (interpreting AS 28.35.032).
1213*1213 Therefore, the law has deliberately given the arrested person a choice between two very different alternatives and potential sanctions. The arrested driver must weigh and evaluate a number of different factors. He may only be vaguely aware of some of these and need not be informed of all of them by the police.
The decision as to whether to comply with an arresting officer's request to take a sobriety test is not a simple one. Clearly, an attorney's advice at this stage would not only be ethical and lawful, but helpful. The choice which an individual driver must make is a meaningful and binding one that will affect him in subsequent proceedings. Where the important chemical testing procedures are not unreasonably delayed, the driver should, upon request, have the benefit of the advice of his own counsel, with whom he has a statutory right to communicate. Given the conclusive nature of the evidence which the accused is asked to provide, this decisive point may be the only occasion when this statutory right is of any use.
The prosecuting authorities finally argue that to apply the statutory right to communicate1214*1214 with one's attorney at the pre-decision stage would thwart the legislative intent underlying the implied consent statute. The courts in a growing number of jurisdictions recognize at least a limited right to communicate with counsel prior to making the decision to submit to chemical testing. While many of the cases cited in the briefs can be distinguished on significant statutory differences, see Wirz v. State, 577 P.2d 227, 230 n. 12 (Alaska 1978), some cases have found a predecision right to communicate with counsel based upon state statutes similar to AS 12.25.150(b) or court rules similar to Criminal Rule 5(b). These cases have found no inconsistency between these statutes and court rules and implied consent statutes. The prosecuting authorities have failed to cite and we have failed to find any case that denies a limited statutory right to counsel if a statute similar to AS 12.25.150(b) or Criminal Rule 5(b) exists.
The question remains as to whether denial of a statutory right to counsel requires the suppression of subsequently obtained evidence. Copelin and Miller argue that invocation of the exclusionary rule is appropriate for violations of AS 12.25.150(b) even though there is no provision for doing so in the statute and the statute itself provides for civil and criminal sanctions. The state argues that the exclusionary rule is reserved for constitutional violations, and that since this remedy was not included in the statute, it was not thought by the legislature to be appropriate.
In State v. Sundberg, 611 P.2d 44 (Alaska 1980), we elected not to apply the exclusionary rule to a violation of AS 12.25.080 (forcible arrest statute). While noting that the primary purpose of the exclusionary rule is deterrence of future illegal conduct by police, we also concluded that other deterrents might render adoption of an exclusionary rule unnecessary, given society's interests in crime prevention and the apprehension and trial of offenders. Id. at 52. Given those considerations and the absence of a history of excessive force in arrests by police officers, we concluded that the imposition of the exclusionary rule for violations of the forcible arrest statute would at best achieve only a marginal deterrent effect.
Under a Sundberg analysis we reach the opposite conclusion with regard to AS 12.25.150(b). In Sundberg we distinguished the forcible arrest situation from a "conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct." Id. The breathalyzer test, in contrast to the hot pursuit of fleeing felons, provides time for reflection before action and, like a traditional search, consists of intentional efforts by the police to obtain evidence. Given these distinguishing factors, we believe that application of the exclusionary rule will serve to deter future illegal police conduct.
Additionally, a violation in this type of case, as opposed to a violation of the forcible arrest statute, has an effect on the defendant's ability to present a defense at 1215*1215 trial. Here, the defendants were deprived of their statutory right to counsel, and evidence gathered after the right to counsel has been denied should be excluded from trial. SeeEscobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In deciding to apply the exclusionary rule in a situation similar to that presented here, the Minnesota Supreme Court stated:
"[W]hat sanctions should attend violation of the right? While we note that § 481.10 contains civil and criminal penalties against the police officer, these alone are not sufficient to fully vindicate the driver's right. When the driver has been coerced into making a complicated decision without the assistance of counsel required by this opinion, he should not be bound by that decision, since he might have otherwise made it differently. Therefore, if such a driver elected to take the test, the results should be suppressed. If he elected not to take the test, he should not be deemed to have unreasonably refused it and his driver's license should not be revoked."
Prideaux v. State Dept. of Public Safety, 247 N.W.2d at 395.
Application of the exclusionary rule to Miller requires that the breathalyzer test results be suppressed. Copelin, however, presents a more difficult case. The State argues that the evidence against Copelin was "de facto suppressed" since Copelin refused to take the test, and the portion of the videotape having to do with his refusal was not heard by the jury. However, we conclude that the videotape evidence of his actions after he requested to speak with his attorney should have been suppressed entirely. Had he been allowed to consult with an attorney he may have elected to take the breathalyzer, and gained exculpatory evidence. Furthermore, had he been granted the right to consult with his attorney, it is likely that the videotaped events (his growing anger at not being able to talk with his attorney and his consequent verbal abuse of the police officer) would never have occurred.
In conclusion, we find that when a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test. If the suspect is denied that opportunity, subsequent evidence, whether in the form of the test results or the refusal to submit to it, shall be inadmissible at a later criminal trial. This statutory right is limited, however, to circumstances when it will not unreasonably hinder the police investigation. If the person arrested is unable to reach an attorney by telephone or otherwise within a reasonable time, the accused may be required to elect between taking the test and refusing it without the aid of counsel. As both Copelin and Miller were denied the opportunity to contact counsel, these cases must be REVERSED.
COMPTON, Justice, dissenting in part.
I disagree with the court's holding that evidence obtained subsequent to a refusal to allow an OMVI suspect to contact counsel in violation of AS 12.25.150(b) must be excluded. In support of this result, the court relies on State v. Sundberg, 611 P.2d 44 (Alaska 1980). I believe that Sundberg and other Alaska cases discussing the exclusionary rule support the opposite conclusion.
Determining whether an exclusionary remedy is appropriate requires a balancing of the purpose behind excluding illegally obtained evidence with the interest in admitting reliable evidence in those proceedings. State v. Sears, 553 P.2d 907, 912 (Alaska 1976)(applicability of exclusionary remedy in probation revocation proceedings). The primary purpose of the exclusionary 1216*1216 rule is deterrence of future illegal conduct by the police. Sundberg, 611 P.2d at 51 (footnote omitted). The rationale of this rule is that if the police are aware that the fruits of their illegal conduct will be excluded from trial, then the police will cease such conduct.
After noting the existence of potential deterrents in criminal sanctions, police departmental proceedings, civil rights actions, and tort suits, we concluded in Sundbergthat an exclusionary rule would not provide significant additional deterrence to excessive force arrests. Id. at 51-52. In the present case, there are additional reasons why an exclusionary remedy is not necessary for violations of AS 12.25.150(b).
First, unlike the situation in Sundberg, where there were no built-in sanctions for violations of the forcible arrest statute, AS 12.25.150 clearly and expressly sets forth both criminal and civil sanctions against police for the deprivation of an arrestee's rights under the statute. AS 12.25.150(c) provides:
It shall be unlawful for any officer having custody of a person so arrested to wilfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
AS 12.25.150(d) provides:
In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party agrieved the sum of $500, recoverable in a court of competent jurisdiction.
Thus, the legislature created a statutory right to "telephone or otherwise communicate" with counsel immediately after arrest, AS 12.25.150(b), and provided deterrence for violations of this right by authorizing criminal prosecution of a police officer for willfully refusing or neglecting to allow an arrestee to exercise this right. An officer convicted under this statute has a misdemeanor on his record, faces a fine up to $100 and/or imprisonment up to thirty days, and faces a civil judgment of $500 payable to the aggrieved arrestee.
Second, unlike the potential deterrents discussed in Sundberg, the criminal sanction would simply require the arrestee to make a criminal complaint. The state would be charged with the good faith obligation to investigate and, if warranted, to prosecute and bear the cost of such prosecution; a judge would determine the degree of punishment rather than an interested police department official; there would not be the time delays associated with civil suits. I believe that a police officer would more likely be deterred by the potential criminal record and jail time than by application of the judicially created exclusionary rule, which simply means that one of the officer's many arrests failed to culminate in a conviction. Therefore, it is clear that the minimal, if any, deterrent effect that an exclusionary remedy would have considering the civil and criminal deterrents already built into AS 12.25.150 is far outweighed by the significant interest in admitting probative evidence gained from a breathalyzer test.
Sundberg implies an additional reason for not imposing an exclusionary remedy for violations of the excessive force statute, namely, when the officers are acting in good faith:
[W]e are of the view that imposition of the exclusionary rule on the particular facts of the case at bar was clearly unwarranted ... [because] the officer ... was proceeding in accordance with existing departmental directives, and the degree of force permissible under the necessary and proper phraseology of AS 12.25.080 had not been previously construed by this court.
611 P.2d at 52 (footnote omitted).
In this case, the police quite likely believed in good faith that Miller and Copelin had no right to consult counsel before taking the breathalyzer. Even the court of appeals, relying on Eben v. State, 599 P.2d 1217*1217 700, 710 n. 27 (Alaska 1979), understood AS 12.25.150 to be merely a bail statute and therefore believed it was not applicable in the context of an arrest followed by a breathalyzer test administration. Copelin v. State, 635 P.2d 492, 493-94 (Alaska App. 1981). Thus, this is not a situation where the police acted in blatant disregard of an individual's constitutional and statutory rights; rather, they were engaged in conduct that they reasonably believed was legal. Only after this decision is published and the police become aware that an individual does have a limited statutory right to consult an attorney prior to taking a breathalyzer test does the deterrence rationale become operative.
In short, application of the exclusionary rule is intended to deter future illegal conduct. This deterrence is amply provided by the decision in this case, which makes it clear for the first time that the conduct is illegal, and by the criminal sanctions imposed by the legislature for officers engaging in the illegal conduct.
The court's holding ignores these two significant factors of Sundberg militating against applying an exclusionary remedy and attempts to distinguish this case from Sundberg on the ground that the breathalyzer situation is more like a "`conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct.'" 659 P.2d at 1214 (quoting Sundberg,611 P.2d at 52). Given that administration of a breathalyzer test "provides time for reflection before action" and that "like a traditional search, [it] consists of intentional efforts by the police to obtain evidence," id. the court opinion concludes that an exclusionary remedy is needed as an additional deterrent. It neglects to state, however, that Sundberg distinguished conventional search situations on the ground that "the fleeing offender — arrest situation ... often requires law enforcement officials to make rapid decisions within the framework of fluid and confused factual situations which do not permit significant reflection, the obtaining of legal advice, or the intervention of, and decision from, a neutral and detached judicial officer." 611 P.2d at 52. I believe that the breathalyzer situation is in reality somewhere between the "traditional search" situation and the "hot pursuit" circumstance. Although the factual situation is not likely to be as "fluid and confused" as hot pursuit, the police officer is nonetheless going to have to make an educated guess, without help from counsel, whether a "reasonable time" has passed so that he may put the suspect to his choice. At this point, with no evidence to the contrary, I think the court must assume that such a decision will be made in good faith by law enforcement personnel.
In other words, application of the exclusionary rule at this stage is premature. As we stated in Sundberg:
[W]e think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.
Id. (footnote omitted). Cf. Elson v. State, 659 P.2d 1195, 1205 n. 31 (Alaska 1983) (same cautionary instruction given after permitting illegally seized evidence to be used in sentencing proceedings). Similarly, in the event that the clearly delineated statutory right to consult with counsel is violated in the future and that the civil and criminal sanctions are shown not to deter these violations, then this court should not hesitate to apply the exclusionary rule.
I join the court's disposition of all other issues in the petition for hearing.
BURKE, Chief Justice, dissenting in part.
I share the views expressed by my dissenting colleague, Justice Compton. At this point in time, we have no reason to believe that the penalty provisions of AS 12.25.150 will not be vigorously enforced, 1218*1218 now that the requirements of the statute have been made clear. Nor is there reason to believe that those provisions will not effectively deter future violations of the statute. If and when it can be demonstrated that the police and the prosecuting authorities are shirking their responsibility, or that the deterrent effect of the penalty provisions is illusory, we should not hesitate to apply the exclusionary rule. In my judgment, however, the court's application of the rule at this time is unwarranted.
 Copelin v. State, 635 P.2d 492 (Alaska App. 1981); Miller v. Anchorage, Summ. Disp. No. 54 (Alaska App., November 5, 1981).
 AS 22.07.030 and Appellate Rule 302(a)(1).
 Former AS 28.35.030, under which Copelin was charged, reads as follows:
"Driving while under the influence of intoxicating liquor or drugs. (a) A person who, while under the influence of intoxicating liquor, depressant, hallucinogenic or stimulant drugs or narcotic drugs as defined in AS 17.10.230(13) and AS 17.12.150(3) operates or drives an automobile, motorcycle or other motor vehicle in the state, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both and the court shall impose a minimum sentence of imprisonment of not less than three consecutive days. Upon a subsequent conviction within five years after a conviction under this section, the court shall impose a minimum sentence of imprisonment of not less than 10 consecutive days. The execution of sentence may not be suspended nor may probation or parole be granted until the minimum imprisonment provided in this section has been served, nor may imposition of sentence be suspended, except upon the condition that the defendant be imprisoned for no less than the minimum period provided in this section, nor may the punishment provided for in this section be reduced under AS 11.05.150. In addition, his operator's license shall be revoked in accordance with AS 28.15.210(c). In addition a person convicted under this statute shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation which the court, after consideration of any information compiled under (b) of this section, finds appropriate.
(b) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under (a) of this section shall supply the Alaska court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under (a) of this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under (a) of this section."
 Former ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.030 (1978), under which Miller was charged, reads as follows:
"Driving with 0.10% or greater blood alcohol.
A. It shall be unlawful for any person to operate, drive or be in actual physical control of an automobile, motorcycle or other motor vehicle in the municipality at such time as there is 0.10% or more by weight of alcohol in his blood, or 100 milligrams or more of alcohol per 100 milliliters of his blood, or 0.10 grams or more of alcohol per 210 liters of his breath.
B. To be considered valid under the provisions of this section, a chemical analysis of the person's breath shall have been performed according to methods approved by the Alaska Department of Health and Social Services. If it is established at trial that a chemical analysis of breath was performed according to techniques, methods and standards of training approved by the Alaska Department of Health and Social Services, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary."
 Copelin was not permitted to contact anyone until nearly seven hours after his arrest. Miller was told, "You can call an attorney after you blow in the Breathalyzer."
On October 29, 1979, Copelin's motion was partially granted as the district court ordered some sections of the audio portion of the videotape turned off during playback. Interrogation by the officer in violation of Miranda and Copelin's "refusal" to take the breath test were not heard by the jury. The jury did see a very angry, hostile, and frustrated Copelin as he repeatedly asked to speak with his attorney and the officer repeatedly told him he could not. On November 15, 1979, the jury returned a verdict of guilty. After considering Copelin's refusals to submit to breathalyzer examinations on three separate occasions (including the present one) Copelin was sentenced by the district court. Copelin appealed to the superior court where the district court's judgment and sentence were affirmed on June 26, 1980. An appeal was filed in this court, and the matter was transferred to the Court of Appeals.
On June 21, 1979, Miller entered a plea of nolo contendere to the .10 charge of the complaint, preserving the right to litigate and, if necessary, appeal, the issues raised in his pretrial motion to suppress pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974). On August 13, 1979, the district court granted Miller's motion to suppress, set aside his plea, and dismissed the case. The Municipality of Anchorage then petitioned the superior court to review the district court's order granting the motion to suppress. On November 28, 1979, the superior court reversed the order of the district court, and remanded the case for the imposition of sentence. On November 6, 1980, the nolo contendere plea was reinstated, a judgment of conviction was entered, and Miller was sentenced. Miller then appealed to the superior court. Because the issue had already been considered by that court upon the Municipality's petition for review, further proceedings were transferred to the Court of Appeals.
 This statute is paralleled by Alaska Criminal Rule 5(b):
"Rights of Prisoner to Communicate with Attorney or Other Person. Immediately after his arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both his attorney and any relative or friend. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit the prisoner in private." (Emphasis added).
 AS 12.25.150 continues:
"(c) It shall be unlawful for any officer having custody of a person so arrested to willfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
(d) In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of $500, recoverable in a court of competent jurisdiction."
 The defendant in Eben was arrested and booked on a double homicide charge. At the police station, after being advised of his rights, the defendant told police that he would sign the rights waiver form after he had telephoned his girlfriend. The officers remained in the room during the defendant's telephone conversation and heard the defendant utter incriminating statements. This court rejected the defendant's argument that statements made during the exercise of an arrestee's right under AS 12.25.150(b) to "telephone or otherwise communicate" with counsel and friends, should be excluded as a matter of law.
 The ABA Standards Relating to Criminal Justice, the Defense Function § 2.1 provide:
"Every jurisdiction should guarantee by statute or rule of court the right of an accused person to prompt andeffective communication with a lawyer and should require that reasonable access to a telephone or other facilities be provided for that purpose." (Emphasis added).
 The Alaska Implied Consent Statute provides in part:
"Sec. 28.35.031. Implied consent. A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while under the influence of intoxicating liquor."
 Geber does not directly control this case. In Geber one of the defendants argued unsuccessfully that before requiring her to perform certain field sobriety tests, the police should have informed her that she had the right to have an attorney present if she could obtain his presence within a reasonable period of time. While we held that the police have no duty to advise a suspect of any right to counsel, we did not hold that the police may refuse the specific requests to contact counsel that were made in the instant cases. Other courts have recognized that there is a vast difference between a flat refusal to afford access to counsel after it is requested and a failure to advise or warn a defendant of his rights. See, e.g., People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297 (N.Y. 1971). Secondly, while we held in Geber that there is no right to have an attorney present at the field sobriety tests, we did not hold that there is no right merely to contact or communicate with counsel before deciding whether or not to submit to such test. Other jurisdictions, while finding a constitutional or statutory right to consult an attorney by phone, have held that the arrestee does not have the right to demand physical presence of the attorney before taking a breathalyzer test. Spradling v. Deimeke, 528 S.W.2d 759, 765 (Mo. 1975); Price v. North Carolina Dept. of Motor Vehicles, 36 N.C. App. 698, 245 S.E.2d 518, 521-22 (N.C. 1978);McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 803 (Ohio 1975). Geber dealt with neither the statutory right to counsel nor the administration of a breathalyzer test.
 While 15 minutes is the minimum period of delay, the arrestee will have a longer period of time in which to contact his attorney where the test operator is not yet ready to administer the test. Such a rule does not impose any greater delay in testing other than that which is inherent in the test administration process.
 The burden of proof is on the government to show that an accused demanded an unreasonable amount of time and thereby interfered with the "prompt and purposeful investigation" of the case. Blue v. State, 558 P.2d 636, 642 (Alaska 1977).
 Although an arrestee may be without the advise of counsel, he is entitled to a warning by the police. The police are not required to inform the arrestee that he has the right to refuse; however, if he does refuse, he must be advised of the consequences flowing from his refusal and be permitted to reconsider his refusal in light of that information. Wirz v. State, 577 P.2d 227 (Alaska 1978).
 The legislature has recently amended AS 28.35 by adding a new section, AS 28.35.035. Under subsection (a) of this new section, an arrestee who causes death or physical injury to another person no longer has the ability to refuse chemical testing of his blood or breath. The tests may be administered without the consent of the arrestee. Subsection (b) of the new section provides that where the arrestee is unconscious or otherwise incapable of refusal, the implied consent of AS 28.35.031 remains operative, and the police may conduct chemical testing of breath or blood. Such an arrestee would have no effective choice to refuse testing.
The holding in this case, that an individual has the right to telephone an attorney prior to deciding whether to take the breathalyzer test, is restricted to those cases in which the arrestee, under AS 28.35, is still left with the choice of refusing to take the breathalyzer test.
 Among the possible ramifications under present law (effective January 1, 1983):
A. If the driver refuses to take the breathalyzer test:
1. A chemical test cannot be given unless the arrest results from an accident that causes death or physical injury to another person. AS 28.35.035(a).
2. The driver's license or nonresident privilege to drive will be revoked or suspended for three (3) months, AS 28.35.032(b), if:
a. the arresting officer had reasonable grounds to believe the driver had been operating a motor vehicle while under the influence; if
b. the driver refused to submit after being advised this would result in suspension or revocation of his license; and if
c. the driver was fairly informed of the nature and accuracy of the test, the expertise of operator, etcetera.
3. If the driver who refuses has been convicted of driving while intoxicated or of refusal to submit to a breath test the suspension or revocation will be for one (1) year. AS 28.35.032(d).
4. Refusal to submit to the chemical test of breath is a class A misdemeanor. AS 28.35.032(f). Conviction for refusal carries a minimum sentence of imprisonment of not less than 72 consecutive hours. And, upon a subsequent conviction within five years after such a conviction or of a conviction for driving while intoxicated in this or any other state, the minimum sentence is ten consecutive days unless the subsequent conviction is within one year of the previous conviction, in which case the minimum sentence is twenty consecutive days. In addition, a person convicted of this misdemeanor must enroll in a program of alcohol education or rehabilitation that the court finds appropriate. AS 28.35.032(g).
5. The driver may still be prosecuted for driving under the influence and convicted, despite his refusal to take the breathalyzer test. The driver's refusal to submit to the breathalyzer test, as well as any other field sobriety test,will be admissible evidence in a civil or criminal proceeding under the revised statute. AS 28.35.032(e).
6. Refusing to submit to a breathalyzer may hinder the state's case against a driver, but it may also deprive the driver of exculpatory evidence.
7. A driver who receives a refusal suspension can obtain a limited license by instituting a separate civil action and demonstrating to the court requisite hardship. AS 28.35.032.
8. There may be serious collateral consequences to a suspension, involving one's driving record, insurance premiums and even employment.
B. If the driver takes the breathalyzer test:
1. Under ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.020 B.2 and the revised AS 28.35.030(2), a reading above.10 is conclusive proof of driving while intoxicated. On the other hand, a low breathalyzer reading can establish innocence under AS 28.35.033(a)(1) and ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.023 A.1.
2. A person who submits to a breathalyzer test may have a qualified person of his own choosing administer a chemical test in addition to the chemical test administered at the direction of a law enforcement officer. AS 28.35.033(e). There is no requirement that the driver be advised of this right. Palmer v. State, 604 P.2d 1106 (Alaska 1979).
 State v. Vietor, 261 N.W.2d 828, 830-31 (Iowa 1978) (Statute required peace officer to "permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of his or her family or an attorney of his or her choice."); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 391-94 (Minn. 1976) (Statute required officer to "admit any resident attorney retained by or on behalf of the person restrained, or whom he may desire to consult, to a private interview at the place of custody."); Gooch v. Spradling, 523 S.W.2d 861, 865-66 (Mo. App. 1975) (Statute and court rules provided the right "to consult with counsel or other persons in his behalf at all times"); McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 802-03 (Ohio 1975) (Statute required that "[a]fter the arrest, detention, or any other taking into custody of a person ... such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state ..."); State v. Fitzsimmons, 94 Wash.2d 858, 620 P.2d 999 (Wash. 1980), aff'g, 93 Wash.2d 436, 610 P.2d 893 (Wash. 1980) after vacation of judgment and remand in 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240 (1980). (Court rule required that "[a]t the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone ... and any other means necessary to place him in communication with a lawyer").
 As we have concluded that Copelin and Miller's statutory rights were violated and that evidence obtained subsequent to these violations must be suppressed, we need not consider the argument that an accused has a constitutional right to consult with counsel prior to deciding whether to submit to intoxication tests.
Our decision to reverse also eliminates the need to address Copelin's argument that the district court erred in imposing his sentence.
STATE of Alaska, Appellant,
Brian SIMPSON, Appellee.
Court of Appeals of Alaska.
August 16, 2002.
Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Brian Simpson is charged with driving while intoxicated in Anchorage in September 2000. Because Simpson has two prior convictions for "driving under the influence" in Montana, the State indicted him for felony DWI under AS 28.35.030(n) (third offense within five years). But Simpson questions whether his Montana convictions can properly be used as predicate convictions to support the Alaska felony DWI charge.
Under AS 28.35.030(o)(4), a conviction from another state can serve as a predicate for a felony DWI conviction in Alaska if the other state's law requires proof of elements that are "similar" to the elements of DWI under Alaska law. Thus, to resolve this appeal, we must compare the elements of Alaska's DWI statute, AS 28.35.030(a), to the elements of Montana Statute 61-8-401 ("driving under the influence of alcohol or drugs") and decide whether they are similar.
Simpson contends that Alaska law offers a potential defense to a driver who is involuntarily intoxicated, but Montana law does not. Simpson further contends that the Montana statute differs from Alaska law because it punishes even those defendants who perform no voluntary act. The superior court agreed with Simpson and, for that reason, concluded that Simpson's Montana convictions for driving under the influence did not qualify as prior convictions under AS 28.35.030(o)(4). The court therefore dismissed Simpson's indictment for felony DWI.
For the reasons explained here, we have significant doubts as to whether Simpson's interpretations of Montana law are correct. But more important, AS 28.35.030(o)(4) does not require that an out-of-state statute be identical to Alaska's DWI law—only that it be "similar". Even assuming that Alaska and Montana differ in their treatment of involuntary intoxication or the requirement of a voluntary act, DWI prosecutions involving these situations—i.e., situations where the driver has performed no voluntary act, or where the driver is involuntarily intoxicated—are exceedingly rare. They are so rare that, even with these arguable differences, we conclude that Montana's statute is "similar" to Alaska's. We therefore hold that Simpson's Montana convictions for driving under the influence qualify as prior convictions under AS 28.35.030(o)(4).
The wording of the two statutes
Alaska's DWI statute defines the crime as "operat[ing] or driv[ing] a motor vehicle" when a person is "under the influence of intoxicating liquor ... or any controlled substance" or, alternatively, "when ... there is 0.08 percent or more by weight of alcohol in the person's blood". This definition is expanded by AS 28.40.100(a)(7), which specifies that the term "driver" includes "a person who ... is in actual physical control of a vehicle".
Montana Statute 61-8-401(1) defines that state's corresponding offense as "driv[ing] or be[ing] in actual physical control of a vehicle" when "a person ... is under the influence of... alcohol [or] a dangerous drug". (Under Montana law, having a blood-alcohol level of.10 or greater is not an alternative way of committing the offense; rather, if a driver has a blood-alcohol level of .10 or greater, this raises a rebuttable inference that the driver is under the influence. See Montana Statute 61-8-401(4)(c).)
It appears that Montana's statute is more restrictive than Alaska's in terms of what actions constitute the crime (since a person can not be convicted in Montana based on their blood-alcohol level alone). However, Simpson argues that Montana's statute is significantly broader than Alaska's regarding both the culpable mental state and theactus reus that the government must prove.
167*167 With regard to the culpable mental state, Simpson claims that involuntary intoxication is a potential defense to a DWI charge in Alaska but it is not a defense in Montana. And, with regard to the actus reus of the crime, Simpson claims that a person can be convicted of driving under the influence in Montana even though the person has performed no voluntary act.
Whether Montana and Alaska law differ regarding their treatment of involuntary intoxication as a potential defense to driving while intoxicated
In Morgan v. Anchorage, 643 P.2d 691 (Alaska App.1982), this Court examined the culpable mental states needed to establish the offense of driving while intoxicated. We rejected the notion that a DWI defendant must know that they are under the influence: "We do not believe that a person who intentionally drinks and intentionally drives must be aware that [they are] under the influence of alcohol in order to be convicted[.]"However, we indicated that the offense of driving while intoxicated requires proof that the defendant knowingly ingested intoxicants and knowingly operated or assumed physical control of a motor vehicle.
(The Morgan opinion uses the term "intentionally" instead of "knowingly". However, in context, it is clear that we meant "knowingly". The culpable mental state of "intentionally" refers only to a defendant's conscious desire to achieve a particular result. See AS 11.81.900(a)(1). Of the four culpable mental states defined in AS 11.81.900(a)(1)(4), "knowingly" is the only one that applies to conduct. See Neitzel v. State, 655 P.2d 325, 326, 333 (Alaska App.1982), where we concluded that the statutory phrase "intentionally performs an act" really was intended to mean "knowingly performs an act".)
In addition, Alaska case law recognizes the defense of involuntary intoxication.However, neither this Court nor the supreme court has been called upon to examine how the defense of involuntary intoxication might pertain to a charge of driving while intoxicated.
Criminal law texts on this subject suggest that involuntary intoxication is potentially a defense to driving while intoxicated, but only in limited circumstances. For a general discussion of the effect of involuntary intoxication on criminal liability, see Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), pp. 1001-05, and Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 4.10(f), Vol. 1, pp. 558-59. These commentators explain that involuntary intoxication is normally treated as a species of mental defect. It does not constitute an absolute defense to a crime, but a defendant is allowed to show that, because of involuntary intoxication, they meet the test for insanity—for instance, that they were unable to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of the law, if that is the applicable test in that jurisdiction.
At the same time, the text writers suggest that we may have gone too far in Morganwhen we suggested that DWI invariably requires proof that the defendant knowingly ingested alcohol or other intoxicants. In their discussion of involuntary intoxication, Professors Perkins and Boyce point out that "[a]n important qualification [must] be noted":
If one should become intoxicated as a result of an innocent mistake, force[,] or 168*168 fraud, but after becoming drunk was still sufficiently in possession of his faculties to know what he was doing, and to understand the character of his acts, and with such knowledge and understanding should voluntarily ... drive a motor vehicle on a public highway, the involuntariness of the intoxication would not excuse him because the prohibited act itself was done voluntarily.
Perkins & Boyce, p. 999.
In contrast to the way that we interpreted the offense of driving while intoxicated inMorgan, Montana law designates driving under the influence as a crime of "absolute liability". According to Montana Statute 45-2-104, the phrase "absolute liability" means that a person can be convicted of the offense "without having, as to each element of the offense, one of the [culpable] mental states of knowingly, negligently, or purposely". In other words, the Montana concept of "absolute liability" is essentially what we would call "strict liability". Thus, one might argue that Montana law would allow a defendant to be convicted of driving under the influence even though the defendant did not knowingly ingest alcohol or other intoxicants.
Simpson contends that the Montana DUI law does indeed impose strict liability on people who are involuntarily intoxicated— people who, for example, become intoxicated after someone slips alcohol or another drug into their drink without their knowledge. But Simpson's argument fails to take account of Montana Statute 45-2-203, which codifies a defense of involuntary intoxication.
Montana Statute 45-2-203 begins with the general rules that an intoxicated person "is criminally responsible for his conduct", that "an intoxicated condition is not a defense to any offense", and that a person's intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of the offense". But then the statute declares that these rules do not apply if the person was involuntarily intoxicated—if "the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition".
We have not been able to find any Montana appellate decision that discusses the interplay between crimes of "absolute liability" and Montana's statutory defense of involuntary intoxication. But in the absence of judicial clarification from the courts of Montana, we are unwilling to assume that the statutory defense of involuntary intoxication is unavailable in prosecutions for driving under the influence.
Whether Montana and Alaska law differ concerning the requirement of a voluntary act as a necessary predicate for criminal liability
Simpson argues that, because Montana classifies driving under the influence as a crime of "absolute liability", there is no need for the government to prove that the defendant engaged in a voluntary act. Thus, under Simpson's interpretation of Montana law, a person might be held criminally responsible for being intoxicated and in control of a motor vehicle if, after the person passed out from drinking, the person's companions carried them to a parked vehicle and placed them behind the wheel.
But Montana's doctrine of "absolute liability" only exempts the government from proving the culpable mental states that might otherwise apply to the elements of the crime. The requirement of a voluntary act remains a separate component of liability for any criminal offense. Both Montana law (Montana Statute 45-2-202) and Alaska law (AS 11.81.600(a)) declare that, aside from any culpable 169*169 mental states that may apply to the elements of a particular crime, all crimes require proof that the offender engaged in a "voluntary act".
Our statute, AS 11.81.900(b)(62), defines "voluntary act" as "a bodily movement performed consciously as a result of effort and determination" or "the possession of property if the defendant was aware of the physical possession or control for a sufficient period to have been able to terminate it". Montana law approaches this issue from the other direction; it defines "involuntary act" rather than "voluntary act". But the result is similar, because Montana law defines "involuntary act" as "a bodily movement that ... is not a product of the effort or determination of the actor, either conscious or habitual." Montana Statute 45-2-101(32)(d).
Although the voluntariness of a defendant's conduct is rarely disputed, it remains an implicit element of all crimes. If voluntariness is actively disputed, the government must prove it.
The Montana Supreme Court has recognized that the requirement of a voluntary act is distinct from the culpable mental states that may be required:
[T]he minimum requirements of any criminal offense are ... a voluntary act and companion mental state. [Montana Statute] 45-2-202 ... provides that "[a] material element of every offense is a voluntary act...."
This Court has not judicially recognized the automatism defense[, such as when] a defendant acts during convulsions, sleep, unconsciousness, hypnosis or seizures. [But our] criminal code's provisions requiring a voluntary act and defining involuntary conduct adequately provide for such defenses....
State v. Korell, 213 Mont. 316, 690 P.2d 992, 1001 (1984).
Simpson nevertheless argues that, under Montana law, a crime of "absolute liability" does not require proof of a voluntary act. He relies on the Montana Supreme Court's statement in State v. West, 252 Mont. 83, 826 P.2d 940 (1992), that the jury in a DUIcase need not be instructed on the requirement of a "voluntary act".
But the Montana court's decision in West appears to confuse the requirement of a culpable mental state with the requirement of a voluntary act. Here is what the court said on this issue:
In State v. McDole [226 Mont. 169, 734 P.2d 683 (1987)] ... we held that "[d]riving under the influence is an absolute liability offense not requiring the proof of the mental state by the State." [Montana Statute] 61-8-401(7) ... states that "[a]bsolute liability as provided in 45-2-104 will be imposed for a violation of this section."
The basic reason for not requiring the state to prove mental intent in DUIcases is that:
[S]ituations could arise in which defendants could not be convicted under the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liability under the statute.
McDole, 734 P.2d at 686 (quoting Erwin, Defense of Drunk Driving Cases, § 1.05 (1986)).
The [defendant's] proposed jury instruction required the State to prove the defendant knowingly committed the offense. Absolute liability statutes do not require proof of a mental state. We hold the 170*170 District Court did not err in refusing the jury instruction defining a voluntary act.
West, 826 P.2d at 943-44.
As can be seen, the Montana Court recites all the reasons why the government does not have to prove a culpable mental state in DUI cases, and then the court inexplicably concludes that the jury did not have to be instructed on the requirement of a voluntary act. But, as the Montana court recognized in Korell (discussed and quoted above), the requirement of a voluntary act is distinct from the culpable mental states that may be required by a specific criminal offense. The fact that Montana's DUI statute does not require proof of a culpable mental state does not lead to the conclusion that the offense is also exempted from the requirement of a voluntary act.
Thus, on this point as well, we find that Montana law provides no clear answer. Despite the Montana Supreme Court's statement in West, we are unwilling to assume that Montana law has dispensed with the requirement of a voluntary act as a necessary predicate for criminal liability under Montana's driving under the influence statute. The opposite appears more likely.
Conclusion: Whatever the arguable differences between the Montana statute and Alaska's DWI statute, they are still "similar"
We have discussed (at some length) the purported differences between the Montana offense of "driving under the influence" law and the Alaska offense of "driving while intoxicated". We are not sure that these purported differences exist. Moreover, we conclude that these purported differences are irrelevant to our decision of this case.
As we pointed out early in this opinion, AS 28.35.030(o)(4) does not require us to decide whether Montana law and Alaska law are identical; rather, the question is whether Montana's definition of driving under the influence is "similar" to Alaska's definition of driving while intoxicated.
It is conceivable that, in some instances, an involuntarily intoxicated driver would have a defense to DWI under Alaska law but would not have a defense under Montana law. But instances of involuntary intoxication are rare. Moreover, even in such instances, a defendant charged with DWI would probably have to assert, not only that they were involuntarily intoxicated, but also that they had no conscious awareness of being intoxicated before they decided to drive or assume control of a motor vehicle. (As noted above, there is no Alaska decision on this point, but the passage from Perkins & Boycequoted above suggests that this is the applicable rule.)
Thus, any purported difference between Montana law and Alaska law would apply only to a narrow spectrum of unusual cases. As we pointed out in Borja v. State (a case which dealt with the related issue of whether an out-of-state conviction qualifies as a prior felony for purposes of Alaska's presumptive sentencing statutes), statutes can be "similar" even though they do not completely overlap in their coverage:
[E]ven if it were possible to identify conduct that was clearly included within the [other state's] offense and clearly excluded from the Alaska offense, this would not necessarily be fatal to [a finding of "similarity"]. AS 12.55.145(a)(2) does not require that the out-of-state offense be identical to an Alaska felony—only that its elements be "similar" to those of an Alaska felony. Implicit in this statutory wording is the possibility that there will be some acts covered by one statute that will not be covered by the other. http://www.duilawyersanbernardinocourt.com/
Borja, 886 P.2d 1311, 1314 (Alaska App. 1994). http://www.duilawyersanbernardinocourt.com/
Applying this reasoning, we conclude that Montana's definition of driving under the influence is sufficiently similar to Alaska's definition of driving while intoxicated that a Montana conviction qualifies as a prior conviction under AS 28.35.030(o)(4). Thus, Simpson's Montana convictions for driving under the influence can be used as the predicate convictions needed to support a felony DWI charge in Alaska. http://www.duilawyersanbernardinocourt.com/
The decision of the superior court is REVERSED. The felony DWI charge against Simpson is reinstated, and this case is remanded 171*171 to the superior court for further proceedings on that charge. http://www.duilawyersanbernardinocourt.com/ http://www.duilawyersanbernardinocourt.com/
 Since the time of Simpson's offense, the Alaska Legislature has amended AS 28.35.030(n). The offense of felony DWI now requires proof of two prior convictions within the preceding ten years. See SLA 2002, ch. 60, § 31. This amendment is not relevant to Simpson's case.
 In September 2000 (the time of Simpson's alleged offense), the statute required a blood-alcohol level of 0.10 percent, rather than 0.08 percent, to trigger criminal liability. This difference is not pertinent to the issue raised in Simpson's appeal. http://www.duilawyersanbernardinocourt.com/
 Morgan, 643 P.2d at 692; see also Hoople v. State, 985 P.2d 1004, 1006 (Alaska App.1999) ("[The offense of] driving while intoxicated ... does not require proof of any culpable mental state regarding the circumstance that makes the driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol content exceeded [the legal limit] )."). http://www.duilawyersanbernardinocourt.com/
 See Morgan, 643 P.2d at 692.
 See Evans v. State, 645 P.2d 155, 159 (Alaska 1982) ("The case law is ... clear that involuntary intoxication ... constitute[s] a valid defense. This is most clearly shown when the intoxication is the result of the force, duress, fraud, or contrivances of another."); see also State v. Hazelwood, 946 P.2d 875, 879 (Alaska 1997) ("[I]t is always a defense to prosecution that the conduct was not voluntary. In every case, the alleged [criminal conduct] must have been the product of a free will[.]"). http://www.duilawyersanbernardinocourt.com/
 Perkins & Boyce at 1005; LaFave & Scott at 558.
 Montana Statute 61-8-401(7).
 See AS 11.81.600(b): "A person is not guilty of an offense unless the person acts with a culpable mental state, except that no culpable mental state must be proved ... if the description of the offense does not specify a culpable mental state and the offense is ... designated as one of `strict liability'[.]"
 The constitutionality of this statute was upheld in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), reversing State v. Egelhoff, 272 Mont. 114, 900 P.2d 260, 264-66 (1995). http://www.duilawyersanbernardinocourt.com/
 See State v. Kupihea, 98 Hawai`i 196, 46 P.3d 498, 504 n. 9 (2002) ("The voluntary nature of an act is part and parcel of the conduct element required to be proven by the prosecution.... [All criminal offenses] require[,] as a minimum basis for the imposition of penal liability, conduct which includes a voluntary act or voluntary omission."); Smith v. State, 56 S.W.3d 739, 746 (Tex.App.2001) (the government must prove beyond a reasonable doubt that the possessor of a controlled substance had control over the object long enough to allow them to comprehend that they possessed a controlled substance and to enable them to terminate their control over it); In re Marriage of Bartlett, 305 Ill.App.3d 28, 238 III.Dec. 357, 711 N.E.2d 460, 463 (1999) (in a prosecution for contempt of court, the government must prove beyond a reasonable doubt that the defendant performed a voluntary act and knew or reasonably should have known that the act contravened http://www.duilawyersanbernardinocourt.com/
Tyler G. McNEELY.
Supreme Court of United States.Argued January 9, 2013.
Decided April 17, 2013.
1556*1556 John N. Koester, Jr., argued, for Petitioner.
Nichole A. Saharsky, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.
Steven R. Shapiro, for Respondent.
John N. Koester, Jr., Counsel of Record, Assistant Prosecuting Attorney, Office of Prosecuting Attorney, Cape Girardeau County, MO, Angel M. Woodruff, Acting Prosecuting Attorney, Jackson, MO, for Petitioner. http://www.duilawyersanbernardinocourt.com/
Stephen Douglas Bonney, Kansas City, MO, Anthony E. Rothert, Grant R. Doty, St. Louis, MO, Steven R. Shapiro, Counsel of Record, Ezekiel R. Edwards, Brandon J. Buskey, New York, NY, Stephen C. Wilson, Wilson & Mann, L.C., Cape Girardeau, MO, for Respondent.
Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, and an opinion with respect to Parts II-C and III, in which Justice SCALIA, drunk driving lawyer Justice dui lawyer GINSBURG, and Justice KAGAN join.
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, drunk driving lawyer 16 L.Ed.2d 908 (1966),this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer "might dui lawyer reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents aper se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. http://www.duilawyersanbernardinocourt.com
While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely's truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs thatMcNeely was intoxicated, including McNeely's bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed "a couple of beers" at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck. After dui lawyer McNeely performed poorly on a battery of 1557*1557 field-sobriety tests and declined to use a portable breath-test device to measure his drunk driving lawyer blood alcohol concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. drunk driving lawyer But when McNeelyindicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital dui lawyer for blood testing. The officer did not attempt to secure a warrant. 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. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 2011). McNeelynonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely's BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See § 577.012.1. http://www.duilawyersanbernardinocourt.com
McNeely was charged with driving while intoxicated (DWI), in dui lawyer violation of § 577.010. He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that "[a]s in all cases involving intoxication, [McNeely's] blood alcohol was being metabolized by his liver," there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG-CR01849-01 (Cir. Ct. Cape Girardeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011),id., at 24a. http://www.duilawyersanbernardinocourt.com
The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) drunk driving lawyer (per curiam). Recognizing that this Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, "provide[d] the backdrop" to its analysis, the Missouri Supreme Court held that "Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw." 358 S.W.3d, at 69, 74. The court further concluded that Schmerber "requires more than the mere dui lawyer dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case." 358 S.W.3d, at 70. According to the court, exigency depends heavily on the existence of additional "`special facts,'" such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S.W.3d, at 70, 74. Finding that this was "unquestionably a routine DWI case" in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely'sFourth Amendment right to be free from unreasonable searches of his person. Id.,at 74-75. http://www.duilawyersanbernardinocourt.com
1558*1558 We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. See 567 U.S. ___, drunk driving lawyer 133 S.Ct. 98, 183 L.Ed.2d 737 (2012). We now affirm. http://www.duilawyersanbernardinocourt.com
The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Our cases have held that a warrantless search of the person is reasonable only if it falls within a dui lawyer recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's "most personal and deep-rooted expectations of privacy." Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); see also Skinner v. Railway Labor Executives' Assn., drunk driving lawyer 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
We first considered the Fourth Amendment restrictions on such dui lawyer searches inSchmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U.S., at 758, 86 S.Ct. 1826. Noting that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. Id., at 770, 86 S.Ct. 1826. We explained that the importance of requiring authorization by a "`neutral and detached magistrate'" before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great." Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13-14, drunk driving lawyer 68 S.Ct. 367, 92 L.Ed. 436 (1948)). http://www.duilawyersanbernardinocourt.com
As noted, the warrant requirement is subject to exceptions. "One well-recognized exception," and the one at issue in this case, "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Kentucky v. King,563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. drunk driving lawyer 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam), engage in "hot pursuit" of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), or 1559*1559 enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509-510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may dui lawyer conduct a search without a warrant to prevent the imminent destruction of evidence. SeeCupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because "there is compelling need for official action and no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942. http://www.duilawyersanbernardinocourt.com
To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. SeeBrigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)(finding officers' entry into a home to provide emergency assistance "plainly reasonable under the circumstances"); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of a person to dui lawyer prevent him from returning to his trailer to destroy hidden contraband was reasonable "[i]n the circumstances of the case before us" due to exigency);Cupp, 412 U.S., at 296, 93 S.Ct. 2000 (holding that a limited warrantless search of a suspect's fingernails to preserve evidence that the suspect was trying to rub off was justified "[o]n the facts of this case"); see also Richards v. Wisconsin, 520 U.S. 385, 391-396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per seexception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct "in a particular case"). We apply this "finely tuned approach" to Fourth Amendment reasonableness in this context because the police action at issue lacks "the traditional justification that ... a warrant ... provides." Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent that established justification, "the fact-specific nature of the reasonableness inquiry,"Ohio v. Robinette, drunk driving lawyer 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996),demands that we evaluate each case of alleged exigency based "on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).
Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U.S., at 758, 86 S.Ct. 1826. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758-759, 86 S.Ct. 1826. After explaining that the warrant requirement applied generally to searches that intrude into the human body, 1560*1560 we concluded that the warrantless blood test "in the present case" was nonetheless permissible because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence.'" Id., at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). http://www.duilawyersanbernardinocourt.com
In support of that conclusion, we observed that evidence could have been lost because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from drunk driving lawyer the system." 384 U.S., at 770, 86 S.Ct. 1826. We added that "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." Id., at 770-771, 86 S.Ct. 1826. "Given drunk driving lawyer these special facts," we found that it was appropriate for the police to act without a warrant. Id., at 771, 86 S.Ct. 1826. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, "involve[d] virtually no risk, trauma, or pain," and was drunk driving lawyer conducted in a reasonable fashion "by a physician in a hospital environment according to accepted medical practices." Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based "on the facts of the present record." Id., at 772, 86 S.Ct. 1826. dui lawyer san dui lawyer bernardino
Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances dui lawyer of the particular case and carefully based our holding on those specific facts.
dui lawyer san bernardino
The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for dui lawyer Petitioner 28-29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that wheneve drunk driving lawyer r an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. dui lawyer san bernardino drunk driving lawyer
It is true that as a result of the human body's natural metabolic processes, the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U.S., at 623, 109 S.Ct. 1402; Schmerber, 384 U.S., at 770-771, 86 S.Ct. 1826. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual's blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such drunk driving lawyer as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol dui lawyer Analysis, in Forensic Chemistry Handbook 437-441 (L. Kobilinsky ed.2012). Regardless of the exact elimination rate, it is sufficient for our1561*1561 purposes to note that because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing drunk driving lawyer will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber,as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the drunk driving lawyer hospital to receive treatment would have threatened the destruction of evidence. 384 U.S., at 770-771, 86 S.Ct. 1826. dui lawyer san bernardino
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police drunk driving lawyer officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. SeeMcDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)("We cannot ... excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative"). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the dui lawyer bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect. Richards, 520 U.S., at 393, 117 S.Ct. 1416. dui lawyer san bernardino
The context of blood testing is different in critical respects from drunk driving lawyer other destruction-of-evidence cases in which the police are truly confronted with a "`now or never'" situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see drunk driving lawyer Georgia v. Randolph, 547 U.S. 103, 116, n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Cupp, 412 U.S., at 296, 93 S.Ct. 2000,BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a dui lawyer blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn.2008) (Meyer, J., dissenting). This reality undermines the force of the State's contention, endorsed by the dissent, see post, at 1575 (opinion of THOMAS, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence "is actively being destroyed with every minute that passes." Brief for Petitioner 27. Consider, for example, a situation in which drunk driving lawyer the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an drunk driving lawyer exception dui lawyer to the warrant requirement. dui lawyer san bernardino
The State's proposed per se rule also fails to account for advances in drunk driving lawyer the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish 1562*1562 probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, drunk driving lawyer dui lawyer the law now allows a federal magistrate judge to consider "information communicated by telephone or other reliable electronic means." Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations. dui lawyer san bernardino
We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential 1563*1563 role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where drunk driving lawyer dui lawyer BAC evidence is lost gradually and relatively predictably. dui lawyer san bernardino
Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise dui lawyer questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State's per seapproach would improperly drunk driving lawyer ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions "to pursue progressive dui lawyer approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement." State v. Rodriguez, 2007 UT 15, ¶ 46, 156 P.3d 771, 779. dui lawyer san bernardino
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving dui lawyer suspect is reasonable must be determined case by case based on the totality of the circumstances. dui lawyer san bernardino
In an opinion concurring in part and dissenting in part, THE CHIEF JUSTICE agrees that the State's proposed per se rule is overbroad because "[f]or exigent circumstances to justify a warrantless search ... there must ... be `no time to secure a warrant.'" Post, at 1572 (quoting Tyler, 436 U.S., at 509, 98 S.Ct. 1942). But THE CHIEF JUSTICE then goes on to suggest his own drunk driving lawyer categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not dui lawyer secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance. Post, at 1572-1574. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 1561, we decline to substitute drunk driving lawyer THE CHIEF JUSTICE's modified per se rule for our traditional totality of the circumstances analysis.
For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under THE CHIEF JUSTICE's rule, if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule dui lawyer drunk driving lawyer would also distort law enforcement incentives. As with the State's per se rule, THE CHIEF JUSTICE's rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to 1564*1564 secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. THE CHIEF JUSTICE correctly observes that "[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road." Post, at 1572, n. 2. But THE CHIEF JUSTICE does not say that roadside blood draws are necessarily unreasonable, and if we accepted THE CHIEF JUSTICE's approach, they would become a more attractive option for the police.
The remaining arguments advanced in support of a per se exigency rule are unpersuasive. dui lawyer san bernardino
The State and several of its amici, including the United States, drunk driving lawyer express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. THE CHIEF JUSTICE and the dissent also raise this concern. See post, at 1569, 1573-1574 (opinion of ROBERTS, C.J.); post, at 1576-1578 (opinion of THOMAS, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See,e.g., Illinois v. Wardlow, 528 U.S. 119, 123-125, 120 S.Ct. 673, dui lawyer 145 L.Ed.2d 570 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Robinette, 519 U.S., at 39-40, 117 S.Ct. 417(whether valid consent has been given to search); Tennessee v. Garner, 471 U.S. 1, 8-9, 20, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here. dui lawyer san bernardino drunk driving lawyer
Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves "virtually no 1565*1565 risk, trauma, or pain." Schmerber,384 U.S., at 771, 86 S.Ct. 1826. See also post, at 1575, dui lawyer and n. 1 (opinion of THOMAS, J.). dui lawyer san bernardino drunk driving lawyer
But the fact that people are "accorded less privacy in ... automobiles drunk driving lawyer because of th[e] compelling governmental need for regulation," California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, drunk driving lawyer 470 U.S., dui lawyer at 759-766, 105 S.Ct. 1611 (surgery to remove a bullet); Rochin v. California, 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. SeeSkinner, 489 U.S., at 618-633, 109 S.Ct. 1402 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the "special needs" doctrine); Schmerber, 384 U.S., at 770-772, 86 S.Ct. 1826. dui lawyer We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally drunk driving lawyer protected privacy interests. dui lawyer san bernardino
Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They dui lawyer argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all drunk driving lawyer 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review). To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 1570-1571 (opinion of ROBERTS, C.J.);post, at 1576-1577 (opinion of dui lawyer THOMAS, J.).
"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). drunk driving lawyer Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, dui lawyer 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average drunk driving lawyer of one fatality every 53 minutes). dui lawyer san bernardino
But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular dui lawyer case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances 1566*1566 analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and drunk driving lawyer prosecuting drunk-driving offenses, we are not convinced. dui lawyer san bernardino
As an initial matter, States have a broad range of legal tools to drunk driving lawyer enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States dui lawyer have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra,at 1556 (describing Missouri's drunk driving lawyer implied consent law). dui lawyer Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)(holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination). dui lawyer san bernardino drunk driving lawyer
It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether. Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order. Cf. Bullcoming v. New 1567*1567Mexico, 564 U.S. ___, ___, 131 S.Ct. 2705, 2710-2711, 180 L.Ed.2d 610 (2011)(noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement's ability to recover BAC evidence. dui lawyer See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36-38 (No. 810852, Oct. 2007). dui lawyer san bernardino drunk driving lawyer
To be sure, "States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). But wide-spread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. dui lawyer They also strongly suggest that our ruling today will not "severely hamper effective law enforcement."Garner, 471 U.S., at 19, 105 S.Ct. 1694. dui lawyer san bernardino
The State argued before this Court that the fact that alcohol is drunk driving lawyer naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was "sure" a prosecuting attorney was on call and even though drunk driving lawyer he had no dui lawyer reason to believe that a magistrate judge would have been unavailable. Id., at 39, 41-42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id., at 39-40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, "a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant." App. to Pet. for Cert. 43a. dui lawyer san bernardino
The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent dui lawyer circumstances.1568*1568 358 S.W.3d, at 70, 74-75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood drunk driving lawyer categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.
Here and in its own courts the State based its case on an insistence drunk driving lawyer that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood dui lawyer test without any precondition for a warrant. That is incorrect. dui lawyer san bernardino
Although the Missouri Supreme Court referred to this case drunk driving lawyer as "unquestionably a routine DWI case," 358 S.W.3d, at 74, the fact that a particular drunk-driving stop is "routine" in the sense that it does not involve "`special facts,'" ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an o drunk driving lawyer rdinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can drunk driving lawyer obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to dui lawyer obtain reliable evidence, will no doubt vary depending upon the circumstances in the case. dui lawyer san bernardino drunk driving lawyer
Because this case was argued on the broad proposition drunk driving lawyer that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that drunk driving lawyer the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated drunk driving lawyer dui lawyer delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the drunk driving lawyer sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.
* * *
We hold that in drunk-driving investigations, the natural drunk driving lawyer dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. dui lawyer san bernardino
The judgment of the Missouri Supreme Court is affirmed. dui lawyer san bernardino
It is so ordered.
Justice KENNEDY, concurring in part. dui lawyer san bernardino https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html
I join Parts I, II-A, II-B, and IV of the opinion for the Court. dui lawyer san dui lawyer bernardino https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html drunk driving lawyer
For the reasons stated below this case does not call for the Court to drunk driving lawyer consider dui lawyer in detail the issue discussed in Part II-C and the separate opinion by THE CHIEF JUSTICE. https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html san bernardino
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As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is dui lawyer 1569*1569 correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a w drunk driving lawyer arrantless blood test in order to preserve the critical evidence. dui lawyer san bernardino
States and other governmental entities which enforce the driving laws dui lawyer can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law dui lawyer enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today. dui lawyer san bernardino
As the opinion of the Court is correct to note, the instant case, drunk driving lawyer by reason of the dui lawyer way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the drunk driving lawyer Fourth Amendment. dui lawyer san bernardino
Chief Justice ROBERTS, with whom Justice BREYER and J drunk driving lawyer ustice ALITO join, dui lawyer concurring in part and dissenting in part.
A police officer reading this Court's opinion would have no idea — no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused drunk driving lawyer a breathalyzer test. dui lawyer I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
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In my view, the proper rule is straightforward. Our cases drunk driving lawyer establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not dui lawyer only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there drunk driving lawyer is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant. dui lawyer san bernardino
The Fourth Amendment provides: dui lawyer san bernardino
"The right of the people to be secure in their persons, houses, drunk driving lawyer dui lawyer papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." dui lawyer san bernardino
That language does not state that warrants are required prior dui lawyer to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U.S. 757, 767, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). dui lawyer san bernardino
However, "the ultimate touchstone of the Fourth dui lawyer Amendment is `reasonableness,'"1570*1570 Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and thus "the warrant requirement is subject to certain reasonable exceptions," King, 563 U.S., at ___, 131 S.Ct., at 1856. One of those exceptions is known as the "exigent circumstances exception," which "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Ibid.(internal quotation marks and alterations omitted). dui lawyer san bernardino
Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham dui lawyer City, supra, at 403, 126 S.Ct. 1943, we held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), we held that "[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry dui lawyer `reasonable.'" And there is a hot pursuit exception to the warrant requirement as well. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), we recognized "the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons." Santana, supra, at 42, 96 S.Ct. 2406. In each of these cases, the requirement that we base our decision on the dui lawyer "totality of the circumstances" has not prevented us from spelling out a general rule for the police to follow. dui lawyer san bernardino
The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that "law enforcement officers may make a warrantless entry onto private property ... to drunk driving lawyer prevent the imminent destruction of evidence." Brigham City, supra, at 403, 126 S.Ct. 1943 (citing Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)); see also, e.g., King, supra, at ___, 131 S.Ct., at 1856-1857. For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers' warrantless entry into the defendant's home, with the plurality explaining that the drugs "could be quickly and easily destroyed" or "distributed or hidden before a warrant could be obtained at drunk driving lawyer that time of night." 374 U.S., at 40, 42, 83 S.Ct. 1623. dui lawyer san bernardino
As an overarching principle, we have held that if there is a "compelling need for official action and no time to secure a warrant," the warrant requirement may be excused. Tyler, supra, at 509, 98 S.Ct. 1942. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving. dui lawyer san bernardino drunk driving lawyer drunk driving lawyer
The reasonable belief that critical evidence is being destroyed gives drunk driving lawyer rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic 1571*1571 drunk driving lawyer dui lawyer and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed.2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception. dui lawyer san bernardino
And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, drunk driving lawyer including dui lawyer with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22-23 (citing Mo. Ann. Stat. §§ 558.011, 577.010, 577.023 (West 2011)). dui lawyer san bernardino
Evidence of a driver's blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a "high BAC," often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x-xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers dui lawyer refuse breathalyzers, asMcNeely did here, a blood draw becomes necessary to obtain that evidence. dui lawyer san bernardino
The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know dui lawyer precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra. dui lawyer san bernardino
McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant's BAC at the time he was driving. See Brief for Respondent 44-46. But that's not good enough. We have indicated that exigent circumstances justify drunk driving lawyer warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U.S., at ___-___, 131 S.Ct., at 1857-1858. We dui lawyer have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant's co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless drunk driving lawyer entry. dui lawyer san bernardino
The same approach should govern here. There is a compelling need to search because alcohol — the nearly conclusive evidence of a serious crime — is dissipating from the bloodstream. The need drunk driving lawyer is no less compelling dui lawyer because the police might be able to acquire second-best evidence some other way.
1572*1572 B dui lawyer san bernardino
For exigent circumstances to justify a warrantless search, however, there must also be "no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942; seeSchmerber, 384 U.S., at 771, 86 S.Ct. 1826 (warrantless dui lawyer dui lawyer search legal when "there was no time to seek out a magistrate and secure a warrant"). In this respect, obtaining drunk driving lawyer a blood sample from a suspected drunk driver differs from other exigent circumstances cases. dui lawyer san bernardino
Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front drunk driving lawyer of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be dui lawyer injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away. There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical professional. In this case, for example, approximately 25 minutes elapsed between the drunk driving lawyer drunk driving lawyer time the police stopped McNeely and the time his blood was drawn. App. 36, 38. dui lawyer san bernardino
As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search — critical evidence is still disappearing. But the fact that the dissipation persists for drunk driving lawyer some dui lawyer time means that the police — although they may not be able to do anything about it right away — may still be able to respond to the ongoing destruction of evidence later on. dui lawyer san bernardino
There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 1561-1563, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the drunk driving lawyer judge's signature to a warrant. See, e.g.,Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Idaho Code §§ 19-4404, 19-4406 (Lexis 2004); Minn. Rules Crim. Proc. 36.01-36.08 (2010 and Supp.2013); Mont. Code Ann. § 46-5-222 (2012); see generally NHTSA, Use of Warrants for Breath dui lawyer Test Refusal: Case Studies 6-32 (No. 1573*1573810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction. dui lawyer san bernardino
In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509, 98 S.Ct. 1942; see also dui lawyer Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("in order to satisfy the `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... police officer[s] conducting a drunk driving lawyer drunk driving lawyer search or seizure under one of the exceptions to the warrant requirement ... is not that they always be correct, but that they always be reasonable"); Terry v. drunk driving lawyer Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)("police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure"). dui lawyer san bernardino
Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search drunk driving lawyer is reasonable. We have already held that forced blood draws can be constitutional — that such searches can be reasonable — but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U.S., at 770, 86 S.Ct. 1826 (upholding a warrantless forced blood draw but noting the "importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt" as "indisputable and great"). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified. dui lawyer san bernardino
At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that dui lawyer dui lawyer exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, drunk driving lawyer or because the destruction occurs continuously over an uncertain period. dui lawyer san bernardino
And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood dui lawyer drawn drunk driving lawyer 1574*1574 from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital. dui lawyer san bernardino
B dui lawyer san bernardino
The Court resists the foregoing, contending that the question presented drunk driving lawyer somehow inhibits such a focused analysis in this case. See ante, at 1567-1568. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment "based upon the natural dissipation of alcohol in the bloodstream." Pet. for Cert. i. The majority answers "It depends," and so do I. The difference is that the majority offers no additional guidance, merely instructing courts and police officers to consider the totality drunk driving lawyer of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance. dui lawyer san bernardino
A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 1563. That is not plausible: Police and prosecutors need warrants drunk driving lawyer in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality's suggestion also overlooks the interest of law enforcement in the protection a warrant provides. dui lawyer san bernardino
The Court is correct when it says that every case must be considered on its drunk driving lawyer particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should drunk driving lawyer come down to whether there is time to secure one.
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Schmerber itself provides support for such an analysis. The dui lawyer Court there made much of the fact that "there was no time to seek out a magistrate and secure a warrant." 384 U.S., at 771, 86 S.Ct. 1826. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of drunk driving lawyer evidence, when the officers are in a position to do something about it. dui lawyer san bernardino
* * *
Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts. dui lawyer san bernardino drunk driving lawyer
Justice THOMAS, dissenting. dui lawyer san bernardino
This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving dui lawyer under the influence of alcohol. Because the body's natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent drunk driving lawyer circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment. dui lawyer san bernardino
The Fourth Amendment states that "[t]he right of the people to be secure in 1575*1575their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable dui lawyer cause." Before a search occurs, "a warrant must generally be secured," Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, drunk driving lawyer 179 L.Ed.2d 865 (2011), but "this presumption may be overcome in some circumstances because `[t]he ultimate touchstone of the Fourth Amendment is "reasonableness."'" Ibid. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); alteration in original). dui lawyer san bernardino
The presence of "exigent circumstances" is one such exception to the warrant requirement. Exigency applies when "`the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable dui lawyer under the Fourth Amendment.'" 563 U.S., at ___, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U.S., at ___, 131 S.Ct., at 1856-1857. As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in "`imminent destruction of drunk driving lawyer evidence.'" Ibid. (quoting Brigham City, supra, at 403, 126 S.Ct. 1943). dui lawyer san bernardino
Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour,ante, at 1560, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a person's sex, weight, body type, and drinking history. Ante, at 1560-1561; Brief for United States as Amicus Curiae 23. The Court drunk driving lawyer dui lawyer has acknowledged this fact sinceSchmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)("We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system"). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime "might reasonably drunk driving lawyer [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] `the destruction of evidence.'" Ibid. (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). The Court explained that drawing a person's blood is "a highly effective means of determining the degree to which [he] is under the influence of alcohol" and is a reasonable procedure because blood tests are "commonplace" and "involv[e] virtually no risk, trauma, or pain." 384 U.S., at 771, 86 S.Ct. 1826. The Court, therefore, held that dissipation of alcohol in dui lawyer the blood constitutes an exigency that allows a blood draw without a warrant.
The rapid destruction of evidence acknowledged by the parties, the majority, andSchmerber's exigency determination 1576*1576 occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). drunk driving lawyer In dui lawyer Cupp, officers questioning a murder suspect observed a spot on the suspect's finger that they believed might be dried blood. Id., at 292, 93 S.Ct. 2000. After the suspect began making obvious efforts to remove the spots from his hands, the officers took samples without obtaining either his consent or a warrant. Id., at 296, 93 S.Ct. 2000. Following a Fourth Amendment challenge to this search, the Court held that the "ready destructibility of the drunk driving lawyer evidence" and the suspect's observed efforts to destroy it "justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails." Ibid. dui lawyer san bernardino
In this case, a similar exigency is present. Just as the suspect's dui lawyer efforts to destroy "highly evanescent evidence" gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances. dui lawyer san bernardino
A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into drunk driving lawyer the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drunk driving lawyer drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U.S.C. § 841(b)(1)(D) (lower penalties for less than dui lawyer 50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable. dui lawyer san bernardino
The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states' adoption of laws penalizing the operation of a motor vehicle "with a blood alcohol concentration of 0.08 percent or greater." 23 U.S.C. § 163(a). See also 23 C.F.R. § 1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway dui lawyer drunk driving lawyer Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. § 577.012(1)-(2) (West 2011) (establishing Missouri's 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§ 577.010(3)-(4), 577.012(4)-(5) drunk driving lawyer (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication 1577*1577 directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue. dui lawyer san bernardino
In today's decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a question dui lawyer about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual drunk driving lawyer exigency at issue: the uncontested destruction of evidence due to metabolization of alcohol. See Part I, supra. Moreover, the Court's facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context. dui lawyer san bernardino
The Court's judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 1562 (justifying delays in part because dui lawyer drunk driving lawyer "BAC evidence is lost gradually and relatively predictably"); ante, at 1561 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry. dui lawyer san bernardino
The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 1561 ("sufficient for our purposes to note that ... significant delay in testing will negatively affect the probative value" (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is dui lawyer obtained drunk driving lawyer will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects' initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. Seesupra, at 1576-1577 drunk driving lawyer (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion. dui lawyer san bernardino
Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too dui lawyer drunk driving lawyer little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota drunk driving lawyer Supreme Court recognized in rejecting arguments like those adopted by the Court today:
"[T]he officer has no control over how long it would take to travel to a judge or the judge's availability. The officer also may not know the time of the suspect's last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is dui lawyer brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and drunk driving lawyer predict how long the most probative evidence 1578*1578of the defendant's blood-alcohol level would continue to exist before a blood sample was no longer reliable." State v. Shriner, 751 N.W.2d 538, 549 (2008) (footnote omitted).
The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before "too much" evidence is destroyed, for the police lack reliable information concerning the relevant variables. dui lawyer san bernardino
This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the drunk driving lawyer officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent's trial that it typically took 1½; to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53-54. dui lawyer Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter. drunk driving lawyer Brief for Respondent 56; App. 70. Ultimately this factual tiff is beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and access to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute. dui lawyer san bernardino
The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 1561-1563, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§ 542.276.2(1), 542.276.2.3 (West Supp.2012), rendering the Court's 50-State survey irrelevant to the actual disposition of this case. Ante, dui lawyer at drunk driving lawyer 1555, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, "[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review." Ante, at 1562. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to drunk driving lawyer secure a warrant. dui lawyer san bernardino
* * *
For the foregoing reasons, I respectfully dissent. dui lawyer san bernardino
 As a result of his two prior drunk-driving convictions, McNeely was charged with a class D felony under Missouri law, which carries a maximum imprisonment term of four years. See Mo. Ann. Stat. §§ 558.011, 577.023.1(5), 577.023.3 (West 2011). dui lawyer san bernardino
 Compare 358 S.W.3d 65 (2012) (case below), State v. Johnson, 744 N.W.2d 340 (Iowa 2008)(same conclusion), and State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (same), with State v. Shriner,751 dui lawyer N.W.2d 538 (Minn.2008) (holding that the natural dissipation of blood-alcohol evidence alone constitutes a per se exigency), State v. Bohling, 173 Wis.2d 529, drunk driving lawyer 494 N.W.2d 399 (1993) (same); State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989) (same).
 We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case. See,e.g., California v. Acevedo, 500 U.S. 565, dui lawyer 569-570, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (auto-mobile exception); United States v. Robinson, 414 U.S. 218, 224-235, 94 S.Ct. 467, 38 L.Ed.2d 427 drunk driving lawyer (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry. dui lawyer san bernardino
 See Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Ariz. Rev.Stat. Ann. §§ 13-3914(C), 13-3915(D), (E) (West 2010); Ark.Code Ann. § 16-82-201 (2005); Cal.Penal Code Ann. § 1526(b) (West 2011); Colo. Rule Crim. Proc. 41(c)(3) (2012); Ga.Code Ann. § 17-5-21.1 (2008); Haw. Rules Penal Proc. 41(h)-(i) (2013); Idaho Code §§ 19-4404, 19-4406 (Lexis 2004); Ind. Code § 35-33-5-8 (2012); Iowa Code §§ 321J.10(3), 462A.14D(3) (2009) (limited to specific circumstances involving drunk driving lawyer accidents); Kan. Stat. Ann. §§ 22-2502(a), 22-2504 (2011 Cum.Supp.); La.Code Crim. Proc. Ann., Arts. 162.1(B), (D) (West 2003); Mich. Comp. Laws Ann. § 780.651(2)-(6) (West 2006); Minn. Rules Crim. Proc. 33.05, 36.01-36.08 (2010 and Supp.2013); Mont.Code Ann. §§ 46-5-221, 46-5-222 (2012); Neb.Rev.Stat. §§ 29-814.01, 29-814.03, 29-814.05 (2008); Nev. Rev.Stat. § 179.045(2), (4) (2011); N.H.Rev. Stat. Ann. § 595-A:4-a (Lexis Supp.2012); drunk driving lawyer N.J. Rule Crim. Proc. 3:5-3(b) (2013); N.M. Rules Crim. Proc. 5-211(F)(3), (G)(3) (Supp. 2012); N.Y.Crim. Proc. Law Ann. §§ 690.35(1), dui lawyer 690.36(1), 690.40(3), 690.45(1), (2) (West 2009); N.C. Gen.Stat. Ann. § 15A-245(a)(3) (Lexis 2011); N.D. Rules Crim. Proc. 41(c)(2)-(3) (2012-2013); drunk driving lawyer Ohio Rules Crim. Proc. 41(C)(1)-(2) (2011); Okla. Stat. Ann., Tit. 22, §§ 1223.1, 1225(B) (West 2011); Ore.Rev.Stat. § 133.545(5)-(6) (2011); Pa. Rules Crim. Proc. 203(A), (C) (2012); S.D. Codified Laws §§ 23A-35-4.2, 23A-35-5, 23A-35-6 (2004); Utah Rule Crim. Proc. 40(l) (2012); Vt. Rules Crim. Proc. drunk driving lawyer 41(c)(4), (g)(2) (Supp.2012); Va.Code Ann. § 19.2-54 (Lexis Supp.2012); Wash.Super. Ct.Crim. Rule 2.3(c) (2002); Wis. Stat. § 968.12(3) (2007-2008); Wyo. Stat. Ann. § 31-6-102(d) (2011); see generally 2 W. LaFave, Search and Seizure § 4.3(b), pp. 511-516, and n. 29 (4th ed.2004) (describing oral search drunk driving lawyer warrants and collecting state laws). Missouri requires that search warrants be in writing and does not permit oral testimony, thus excluding telephonic warrants. Mo. Ann. Stat. §§ 542.276.2(1), 542.276.3 (West Supp.2012). State law does permit the submission of warrant applications "by facsimile or drunk driving lawyer other electronic means." § 542.276.3. dui lawyer san bernardino
 During the suppression hearing in this case, McNeely entered into evidence a search-warrant form used in drunk-driving cases by the prosecutor's office in Cape Girardeau County, dui lawyer where the arrest drunk driving lawyer took place. App. 61-69. The arresting officer acknowledged that he had used such forms in the past and that they were "readily available." Id., at 41-42. dui lawyer san bernardino
 The dissent claims that a "50-state survey [is] irrelevant to the actual disposition of this case" because Missouri requires written warrant applications. Post, at 1578. But the per se exigency rule that the drunk driving lawyer State seeks and the dissent embraces would apply nationally because it treats "the body's natural metabolization of alcohol" as a sufficient basis drunk driving lawyer dui lawyer for a warrantless search everywhere and always. Post,at 1574. The technological innovations in warrant procedures that many States have drunk driving lawyer adopted are accordingly relevant to show that the per se rule is overbroad.
 The dissent contends that officers in the field will be drunk driving lawyer unable to apply the traditional totality of the circumstances test in this context because they will not know all of the relevant facts at the time of an arrest. See post, at 1577. But because "[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction, drunk driving lawyer dui lawyer " post, at 1573 (opinion of ROBERTS, C.J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances. Reviewing courts in turn should assess those judgments "`from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Ryburn v. Huff, 565 U.S. ___, ___, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012) drunk driving lawyer (per curiam). dui lawyer san bernardino
 Pursuant to congressional directive, the NHTSA conditions federal highway grants on States' adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater. drunk driving lawyer See 23 dui lawyer U.S.C. § 163(a); 23 C.F.R. § 1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g., drunk driving lawyer 32 C.F.R. §§ 234.17(c)(1)(ii), 1903.4(b)(1)(i)-(ii); 36 C.F.R. § 4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose drunk driving lawyer heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175.
 See Ala.Code § 32-5-192(c) (2010); Alaska Stat. drunk driving lawyer §§ 28.35.032(a), 28.35.035(a) (2012); Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ark.Code Ann. §§ 5-65-205(a)(1), 5-65-208(a)(1) (Supp.2011); Conn. Gen.Stat. §§ 14-227b(b), 14-227c(b) (2011); Fla. Stat. Ann. § 316.1933(1)(a) (West 2006); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Haw.Rev. drunk driving lawyer Stat. § 291E-15 (2009 Cum.Supp.), §§ 291E-21(a), 291E-33 (2007), § 291E-65 (2009 Cum.Supp.); Iowa Code §§ 321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. § 8-1001(b), (d) (2001); Ky.Rev.Stat. Ann. § 189A.105(2) (Lexis Supp.2012); La. Rev.Stat. Ann. § 32:666.A(1)(a)(i), (2) (Supp. 2013); Md. Transp. Code Ann. § 16-205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, § 24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann. drunk driving lawyer § 257.625d(1) (West 2006); Miss.Code Ann. § 63-11-21 (1973-2004); Mont.Code Ann. § 61-8-402(4), (5) (2011); Neb.Rev.Stat. § 60-498.01(2) (2012 Cum.Supp.), § 60-6,210 (2010); N.H.Rev.Stat. Ann. §§ 265-A:14(I), 265-A:16 (West 2012 Cum.Supp.); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. dui lawyer & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); N.D. Cent.Code Ann. § 39-20-01.1(1) (Lexis Supp.2011), § 39-20-04(1) (Lexis 2008); Okla. Stat., Tit. 47, § 753 (West Supp.2013); Ore.Rev.Stat. § 813.100(2) (2011); 75 Pa. Cons.Stat. § 1547(b)(1) (2004); R.I. Gen. Laws §§ 31-27-2.1 dui lawyer (b), 31-27-2.9(a) (Lexis 2010); S.C.Code Ann. § 56-5-2950(B) (Supp.2011); Tenn.Code Ann. § 55-10-406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§ 724.012(b), 724.013 (West 2011); Vt. Stat. Ann., Tit. 23, § 1202(b), (f) (2007); Wash. Rev.Code § 46.20.308(2)-(3), (5) (2012); W. Va.Code Ann. § 17C-5-7 (Lexis Supp.2012); Wyo. Stat. Ann. § 31-6-102(d) (Lexis 2011).
 See Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Ky.Rev.Stat. Ann. § 189A.105(2)(b) (Lexis Supp.2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Mont.Code Ann. § 61-8-402(5) (2011); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); dui lawyer Ore.Rev.Stat. 813.320(2)(b) (2011); R.I. Gen. Laws § 31-27-2.9(a) (Lexis 2010); Tenn.Code Ann. § 55-10-406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, § 1202(f) (2007); drunk driving lawyer Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C-5-7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. drunk driving lawyer 271, ___, 728 S.E.2d 155, 167-168 (2012)); Wyo. Stat. Ann. § 31-6-102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273-274 (Iowa 2009) (per curiam)(recognizing that Iowa law imposes a warrant requirement subject to a limited case-specific exigency exception). dui lawyer san bernardino
 No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol dui lawyer officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53-54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County drunk driving lawyer that had shorter processing times. Id., at 70. dui lawyer san bernardino
 And that second-best evidence may prove useless. When drunk driving lawyer experts have worked backwards to identify a defendant's BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation § 2:9, pp. 2-130 to 2-137 (2d ed.2006) dui lawyer (noting counsel objections to such evidence); State v. Eighth Judicial District Court, 127 Nev. ___, 267 P.3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense § 6.03 (7th ed.2010) (describing ways to undermine such evidence before drunk driving lawyer a jury). dui lawyer san bernardino
 This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California, 384 U.S. 757, 771-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented drunk driving lawyer with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by dui lawyer other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse"); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, drunk driving lawyer would raise additional and serious Fourth Amendment concerns. Seeante, at 1563-1564. dui lawyer
 Neither party has challenged this determination, drunk driving lawyer which this Court has reaffirmed several times. See,e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Winston v. Lee, 470 U.S. 753, 761-763, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985).
 Because the Court's position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant's bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost. dui lawyer san bernardino drunk driving lawyer
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Hire a DUI Lawyer from the Best DUI Law Firm and get the DUI facts about the Drunk Driving Myths. Attorney Patrick J. Silva has focused his law practice defending those who have been accused of driving under the influence. We represent good folks both in the criminal court system and in the DMV proceedings. Mr. Silva is certified in Standardize Field Sobriety Tests (SFST). He has completed 24 hours of intense training under the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA). It is "only" with this specialized training that allows an attorney to effectively cross examine a police officer on the stand about how he "screwed" up when he was giving you the test.
Hire a DUI lawyer from the best DUI law firm and get the dui facts about the drunk driving myths. A quick story, the other day I was in a DMV hearing and I was cross examining the officer. Some of the highlights made me almost laugh outload. The officer could not identify the 3 SFST. As you read this you probably already know that they are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). As we went through the cross examination the officer could not identify the 3 validating clues in the HGN, he did not know how many clues were needed to believe that my client might have been over a .08. The Officer did not know the 8 clues associated with the WAT, in fact he made up other clues as he went along. I did finally start to smurk as he failed to understand the OLS or the 4 clues associated with that test. Hire a DUI lawyer from the best dui law firm and get the dui facts about the drunk driving myths. What was really funny was that 2 weeks after the officer arrested my client he went to a SFST class. This was when my cross really got interesting. As we went through his failures in giving the SFST he had to agree that he gave the SFST wrong on several, several occasions. I also have over 15 hours of training on the Datamaster DMT breath machine. I am the owner of the Alcosensor IV PAS breath machine which is the most widely used roadside breath tester in So. Cal.
We are a nationally-recognized firm lead by a highly experienced DUI lawyer. We are not former prosecutors and am proud to say we never sought to prosecute somebody just to receive a paycheck. The Law Offices of Patrick J. Silva serves clients from offices in Los Angeles, Orange County, Riverside, San Bernardino and San Diego. , We are supported by a former law enforcement officer who conducts our in-field interviews, and a former California DMV license suspension hearing officer. We specialize in representing those clients charged with misdemeanor or felony drunk driving (driving under the influence of alcohol or driving under the influence of marijuana or drugs) and the associated DMV license suspension.
Nationally-known and recognized by other dui attorneys across the United States, Mr. Silva is a Western State University College of Law School graduate and is on the Board of Directors of a multi-million dollar corporation. Mr. Silva is active in teaching other lawyers this highly specialized field of DUI defense. Mr. Silva teaches other lawyers blood alcohol science, breath science, field sobriety test, legal motion writing, and trial defense. . His is a member of the California DUI Lawyers Association and the National College for DUI Defense.
DUI Audio Lectures
I AM APPROVED BY THE STATE BAR OF CALIFORNIA TO TEACH OTHER LAWYERS HOW TO SPOT ISSUES ON A GAS CHROMATOGRAM IN A DUI CASE. Been arrested for dui? if I handle your case I can promise 2 things, I am really really good at what I do, and I will work hard for you. "My name is David and when I got my 3rd DUI I hired Pat Silva to fight for me and he did! He got my 3rd DUI dropped, all I had to do was plead no contest to a few moving violations. I had a bac of .17 and he still got it dropped that's why I call him the specialist! " We do everything in our professional powers to WIN our cases. ONLINE REVIEWS
WHAT OTHER LAWYERS WON'T TELL YOU.
They are not dui specialist
They do not teach other lawyers dui defense
They have never done a dui trial
They have never won a dui trial
They have never won a dui Serna Motion
They have never won a dui Motion to Strike
They have never won a dui Motion to Suppress
They are not NHTSA trained in FST's
They are not trained on the Datamaster DMT breath machine.
They do not have over 300 dui scientific articles
Patrick J. Silva Professional Law Corporation
The breath machine is designed to capture air from the smallest air sacs in your lungs. One of the problems with breath testing is that the air that is actually tested may be from the upper airway. This can result in a false high reading.
Dangers of Breath Testing? If you blow into a breath machine during the absorption phase your breath may be overestimated by 250 percent. This means that a .12 reading on the machine can actually be a .03 in your blood.
I AM APPROVED BY THE STATE BAR OF CALIFORNIA TO TEACH OTHER LAWYERS CERTAIN ASPECTS OF SPOTTING PROBLEMS IN THE BLOOD TESTING PROCEDURE.
WHAT TYPE OF CASES HAVE I HANDLED?
* DUI murder
* DUI felony
* DUI felony with (child endangerment)
* DUI 4th time
* DUI 3rd time
* DUI 2nd time
* DUI 1st time
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