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Courts Scrutinize Search Warrants For Blood

Posted: June 8, 2014 at 1:30 a.m.

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ROGERS -- Thomas Brick Bradford refused to take a sobriety or chemical test to prove he wasn't drinking and driving March 15, so Centerton police asked a judge for a search warrant and took Bradford's blood anyway.

Bradford was arrested and charged with driving while intoxicated and other offenses. His case in Benton County Circuit Court is the most recent known in which a law enforcement agency in the county used a search warrant to obtain blood to prove the blood alcohol content of a driver who refused sobriety and chemical tests.

By the Numbers (w/logo)

Benton County Sheriff’s Office arrests**

2012

Driving While Intoxicated: 208

Violation of Implied Consent: 22

2013

DWI: 349

Violation of Implied Consent: 39

2014 to date:

DWI: 97

Violation of Implied Consent: 11

** Includes only arrests by Sheriff’s Office personnel.

Source: Staff Report

By the Numbers (w/logo)

Washington County arrests*

2012

Driving While Intoxicated: 1,725

Violation Implied Consent law: 547

2013

Driving While Intoxicated: 1,539

Violation Implied Consent law: 484

2014 to date:

Driving While Intoxicated: 527

Violation Implied Consent law: 168

  • Does not include some Springdale misdemeanor arrests.

Source: Staff Report

Fast Fact (w/logo)

Crash Cost

Alcohol-impaired motor vehicle crashes cost the U.S. more than $37 billion annually.

Source: National Highway Traffic Safety Administration

Legal Lingo

Refusal To Submit

“If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency … no chemical test shall be given … ”

Source: Arkansas Code 5-65-205

The warrants pit law enforcement's powers to seek evidence against an Arkansas law that says if a driver refuses tests, "no chemical test shall be given."

Bradford said police shouldn't have the right to get blood against a person's will. His case is set to go to trial next month before Circuit Judge Robin Green, said Jim Clark, interim prosecutor.

Circuit judges have found in favor of the search warrants, but prosecutors and defense attorneys want to see the law clarified by the Arkansas Supreme Court. Local law enforcement agencies are split over whether search warrants for blood are legal or even a good practice.

Most Northwest Arkansas agencies don't use search warrants for blood. Ben Lipscomb, Rogers city attorney, said he advised Rogers police not to seek them.

"I personally think the statute is clear when it says 'none shall be given,' none shall be given," Lipscomb said.

John Threet, Washington County prosecutor, hasn't handled any cases with search warrants for blood, he said.

Sgt. Lynn Hahn, who oversees the DWI task force at the Benton County Sheriff's Office, said the search warrants are an important tool to crack down on drunken driving. Other large law enforcement agencies in Northwest Arkansas -- including the Washington County Sheriff's Office and Bentonville, Rogers, Springdale and Fayetteville police -- don't use the warrants.

"You're really talking about infringing on someone's rights," said Craig Stout, Fayetteville police spokesman.

Court Clarity

District Judge Stephen Thomas had pretrial consultations earlier this year with deputy prosecutors, defense attorneys and Van Stone, former prosecutor. Everyone agreed cases involving search warrants for blood should be moved to Benton County Circuit Court, Thomas said.

Thomas is the district judge in the Siloam Springs Division. Cases typically considered misdemeanors that would have gone to district courts were being funneled to circuit court by March. Several search warrant cases involving blood are open in Benton County Circuit Court, Clark said.

The transfers will create consistency in case outcomes and lay the groundwork for appeal to the state Supreme Court, attorneys said. Also, district courts rarely handle cases involving motions for suppression of evidence obtained by search warrants, Thomas said.

Without a state Supreme Court ruling, no one is sure the search warrants for blood are in line with state law. That means convictions using the search warrants could end up being sent back to lower courts if the Supreme Court rules against them, attorneys said.

"This is an issue that can only be fully and finally settled by the Arkansas Supreme Court," Thomas said.

Continued Use

The Benton County Sheriff's Office sought search warrants for blood at sobriety checkpoints last year. Deputies have used blood search warrants in about 38 cases since about 2010, Hahn said.

About three people have been restrained in order to serve the search warrants and draw the blood, Hahn said. Most drivers comply with the search warrant, he said. Anyone who refuses faces the possibility of contempt charges, said Cody Dowden, a defense attorney. Dowden of Norwood & Norwood in Rogers said he represents at least five people who had search warrants for blood used against them.

None of Dowden's clients were restrained to take blood, but at least one ended up in jail for contempt, he said.

Hahn said the Sheriff's Office has helped the Arkansas State Police get one, although no clear numbers exist for how often the warrants are used statewide. Bill Sadler, Arkansas State Police spokesman, said he couldn't remember any specific case where a search warrant for blood was used by troopers, but he didn't dismiss using them.

"If it becomes necessary to obtain a warrant during the course of an investigation involving a suspected impaired driver, state troopers are trained in what must be articulated before a judge in order to obtain the warrant," Sadler said.

Other agencies are just starting to use them. Centerton police used a search warrant for blood for the first time during Bradford's arrest, Sgt. Cody Harper said.

Elizabeth Castleman, a deputy prosecutor, argued in a court filing against Ernie Metzner, one of Dowden's clients, the state has the right to use the search warrants. Castleman reasoned legislators intended to create laws leading to safe highways, not to create laws to protect drunken drivers from prosecution.

Supreme courts in other states have ruled in favor of taking blood as evidence as long as it is done with a warrant. Sadler and others pointed to Missouri v. McNeely as the current "standard" authorities follow. That case, handed down by the Missouri Supreme Court last year, says blood samples cannot be taken without a search warrant except in extreme circumstances.

The only way to be sure Arkansas law enforcement officers know the circumstances under which they can use search warrants for blood is to get an Arkansas Supreme Court ruling, Castleman and other attorneys said. Different courts have had different findings, Thomas said.

Just how the Arkansas high court will see the issue is up in the air. Jurisdictions in Arkansas and nationwide are struggling to balance civil rights, public safety, privacy and crime prevention as technology increases, said Tony Pirani, president-elect of the Arkansas Association of Criminal Defense Lawyers.

"There is recognition in Arkansas case law that privacy and rights enshrined in the Fourth Amendment matter, and it's important to get the balance right," Pirani said.

The Conundrum

Dowden hopes Metzner's case, set for a bench trial before Circuit Judge Brad Karren on June 17, will be the case appealed to the Supreme Court. The case is clear-cut, Dowden said. The driver was pulled over during a March 16, 2013, sobriety checkpoint at Stoney Brook Road and 54th Street in Rogers, according to court records.

Deputies didn't see erratic driving, and the man said he hadn't been drinking, Dowden said. He refused tests.

Deputies said Metzner had watery eyes, poor balance and an empty alcohol container in the vehicle. Deputies got a search warrant for his blood, which was drawn at Northwest Medical Center-Bentonville and sent to the state Health Department for analysis.

The outcome of the analysis isn't in court filings, but Dowden said his client's blood sample showed a blood alcohol content of 0.15, which is above the legal limit of 0.08

The state has little evidence for a driving while intoxicated conviction without the blood search warrant and resulting analysis of the blood sample, Dowden said. Karren upheld the use of the search warrant in the case at a suppression hearing in March, according to court records.

Once the trial is decided, the appeal process will start, Dowden said.

Dowden doesn't believe the state has the right to pursue evidence when the Legislature has said "no," he said. He pointed out people who refuse chemical tests have penalties against them laid out by law. When drivers refuse those tests, they violate the state implied consent law -- a misdemeanor offense with penalties that include losing a driver's license for 180 days.

The implied consent law states anyone who operates a motor vehicle "is deemed to have given consent ... to one or more chemical tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content."

The penalties for violation of implied consent make it even more clear that search warrants for blood aren't allowed under Arkansas law when the driver refuses the chemical test, Dowden said.

Castleman disagrees with Dowden's assessment, but she hopes his case, or one like it, goes to the state Supreme Court.

"Right now, everything is up in the air," Castleman said. "It will be nice to have some finality."

Drunken Drivers

The search warrants are important, Hahn said.

"I think anything we can do to help get drunk drivers off the road and keep them off the road and prosecute the ones who do is important," he said.

Among the 551 deaths caused by vehicle crashes on Arkansas public roads, about 42 percent, or 231 fatalities, were alcohol or drug related, according to a 2011 Arkansas State Police report. The report is the State Police's most recent available.

The number of driving while intoxicated offenses has decreased across Northwest Arkansas, but, at the same time, drunken drivers who are caught are getting wise and refusing tests, which may make cases harder to prove, law enforcement officials said. Those refusals include drivers who wouldn't take blood, saliva, urine or breathalyzer tests.

About 25 percent of people statewide suspected of drinking and driving refused to take tests in 2012, Hahn said. That's up from about 5 percent in 2002, he said.

Last year, 349 people were arrested in connection with drinking and driving and went to the Benton County Jail. In Washington County for the same year, 1,725 people were in the Washington County Detention Center in connection with drinking while intoxicated, according to information from both sheriff's offices.

In Benton County, 11 percent of drunken driving arrests, or 39 people, refused tests last year, according to Sheriff's Office records. That's up by 17 people from 2012 to 2013. People refusing tests are down in Washington County, where 484 people, or 31 percent, refused tests, according to records. That's down from 547 who violated the implied consent law in 2012.

Washington County numbers only combine statistics for agencies using the detention facility. Springdale has its own jail.

Hahn said the search warrants for blood are mostly used for repeat offenders and people who are obviously, excessively intoxicated, he said.

But the sheriff's office uses "no refusal" weekend events where a search warrant is requested for any driver who refuses a sobriety test, he said. "No refusal" weekends were held Memorial Day and Labor Day holidays last year. Hahn hopes to have another July Fourth, he said.

Just how effective search warrants for blood are in deterring drunken driving is difficult to prove. No conviction rates for Benton and Washington counties or statewide are readily available. Some Washington County police departments said search warrants for blood aren't necessary to convict an individual of drunken driving.

The misdemeanor conviction rate in Springdale -- without using such warrants -- is about 98 percent, according to a 2012 report from the Police Department.

"We have always had a very good conviction rate in court, and the fact that someone refuses a test will not hurt our case," said Derek Hudson, Springdale police spokesman.

NW News on 06/08/2014

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