Officer Daniel Plume arrived at a Fayetteville car accident about 9 p.m. on a recent Monday. One of the drivers was taken to a hospital. The other driver, whose car was littered with empty beer cans, fled the scene.
Two hours later, Plume found the man walking home. Plume could smell the booze on his breath. The man refused to have his blood drawn. That meant police had to get a search warrant signed by a judge to force the man to take the test so they could determine his blood alcohol level.
The law
If a person is pulled over on suspicion of driving while intoxicated:
• Police officers need probable cause to make a traffic stop and to ask a person to perform any tests.
• A police officer must have a warrant to test urine or blood without consent, even if the person is unconscious.
• Breathalyzer tests fall under the state’s implied consent law and a person can be charged with failure to comply if they refuse.
• In Arkansas, a suspect does not have a right to a lawyer until they are arrested.
• A suspect has the right to multiple tests, but they have to pay for it up front.
Source: Staff report
Conducting a test soon after an accident is crucial, because alcohol is only in the blood for a certain amount of time, said Cpl. Dallas Brashears with the Fayetteville Police Department.
If it's late at night, police would usually have to go back to the office, write up an affidavit, drive to a judge's home, wake him up to sign a search warrant and return to the crime scene.
In this case, District Judge Casey Jones took testimony over the phone and signed the warrant electronically, shortening an hourslong process to less than 30 minutes.
"Laws and legislation are years behind where technology really is," Brashears said. "So it's always been an option for us to get a search warrant, but we just added the digital element to make it more efficient for everyone."
Jones has signed just a handful of electronic search warrants since mid-May, and those involved in these cases agree they don't see the option being used often.
Fayetteville police have only obtained search warrants by electronic means for accidents involving drunken driving as far as Brashears and Sgt. Anthony Murphy knew, they said. Other uses could be a search warrant for a house where police believe someone is in immediate danger.
"I can't see it being commonplace," Brashears said. "If it is normal business hours, the officer can go up to the courthouse and get the warrant that way."
Why start now?
Jones is likely the first judge to have used the electronic method in Northwest Arkansas, but it's not a new concept, he said.
The state amended Article IV Search and Seizure of the Rules of Criminal Procedure on May 29, 2014, to explicitly include that a warrant and the affidavit "may be transmitted to the issuing judicial officer by facsimile or by other electronic means." It also said the oath and recorded testimony "in support of a search warrant may be received by telephone or other electronic means."
The change took effect June 1, 2014, but the previous rule didn't specifically exclude the use of electronic means.
"It just obviously needed to be clarified," said Larry Brady, legal services director at the Arkansas Administrative Office of the Courts.
Many other states have similar rules specifying search warrants can be issued through electronic means.
No information on how many search warrants have been issued electronically and by whom was available from state records. Jones said he was inspired by other judges, specifically Little Rock District Judge Alice Lightle, who began using the process.
Staff members in circuit court and prosecutor's offices in central Arkansas said they didn't know how often the process has been used.
"Everything we have set up here is based on what she did," Jones said. "It's not an original idea with me."
What really sparked action, Jones said, was the U.S. Supreme Court ruling in June 2016 on the Birchfield v. North Dakota case. The ruling said police must obtain warrants to test the blood of drivers arrested on suspicion of drunken driving.
The attorney who represented North Dakota told the justices that requiring warrants in those situations would put states "in a terrible bind," but the justices said more than 40 states have systems that allow police to get an electronic search warrant in a matter of minutes, according to news coverage of the case.
However, Northwest Arkansas agencies were not using such systems. Jones knew the court ruling would increase the late-night workload for judges and knew it was time to try to update.
"I live way out in the boonies. I certainly wanted to do my fair share of the work," Jones said. "I thought there was going to be a necessity for more search warrants, and with technology being the way it is, it wasn't a great leap of imagination."
Inconvenient, but not that common
Having to get a warrant after hours can be an inconvenience for both police officers and judges, they said.
Still, before the 2016 ruling, police were not taking blood tests often -- usually only in cases of a serious or fatal accident -- and even then they usually got a warrant unless the person was unconscious, Brashears said. Police need a warrant for every circumstance to draw blood under the ruling.
"We have defended over 10,000 DWI cases, and only a small amount use the blood test. I don't really see that changing," said Doug Norwood of the Norwood & Norwood law firm in Rogers.
The driver is convicted of DWI without a chemical test in many cases.
"They just have to prove that you were impaired to the point that you were dangerous," Norwood said. "If someone is really intoxicated, it's going to be obvious. They're driving bad, can't take a field sobriety test, they have slurred speech -- all the typical signs of intoxication. So they don't actually need the breath, urine or blood test."
The prosecution needs the blood test to prove intoxication if the person was driving well or in the case of accidents, where people are temporarily incapable of performing physical tests.
In the past, taking blood and using breathalyzers fell under implied consent, which drivers give by having a driver's licence. If the driver refused in Arkansas, he or she would often be slapped with both a DWI and a charge of failure to comply with implied consent.
A warrant is still not necessary to conduct a breath test because "the physical intrusion is almost negligible," Supreme Court Justice Samuel Alito Jr. wrote in a part of the decision, but it was decided laws effectively requiring blood tests, without police first obtaining a search warrant, violated the Fourth Amendment's ban on unreasonable searches.
"Birchfield was a big, big case for criminal defense lawyers who do DWI cases," Norwood said.
Norwood said many police officers don't realize the law has changed and some cases have been thrown out.
"If they mess that up, then they can't get it into evidence," Norwood said. "A lot of these little police departments around here haven't gotten the word yet, but they're quickly learning because the lawyers know."
iPads for all
Law enforcement credit Jones for bringing up the idea of digital search warrants in Washington County.
"He approached us and told us we were going to run into issues getting blood if the person won't consent," Maj. Rick Hoyt with the Washington County Sheriff's Office said. "The more time that goes by, you're possibly losing evidence. You need to get things done as quickly as they can, and it speeds it up if the judge is electronically available."
Now, each of the four district judges in Washington County have iPads to help with the process, which were purchased individually by the Fayetteville and Springdale police departments and the Sheriff's Office.
Other counties across the nation have taken similar steps to enter the digital age. Brazoria County in Texas began to use iPads in 2013 to speed of the process of obtaining search warrants.
"Everyone's raving about it," David Smith, assistant criminal district attorney in Brazoria County, Texas, wrote in an issue of the The Texas Prosecutor. "The judges are firm believers in the iPad program. For the officers, time is saved in connecting with a judge to review the warrant, and judges appreciate the mobility the iPad offers them when they are on call."
"Fayetteville police without a doubt was in on the cutting edge of this, but Washington County is in charge of covering a large rural area and it's going to be a real boon to rural law enforcement," Jones said.
Benton County has yet to start implementing the process, according to judges' offices and the Sheriff's office.
The Washington County Sheriff's Office has not gotten a warrant electronically yet, Hoyt said, because the "forms are in a state of flux right now and they're trying to decide which ones to use."
When Fayetteville officers fill out the affidavit for a search warrant, it's pretty cookie cutter, Brashears said. Most of the time in DWI cases, it's obvious by the way the person was driving, how they perform on a field sobriety test or simple that they smell strongly of alcohol, which are all probable cause.
"It's there, you just fill in the blanks," he said.
NW News on 07/31/2017