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DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - State v. Butler

Posted on in DUI

Implied Consent Is Not Fourth Amendment Consent
State v. Butler
232 Ariz. 84, 302 P.3d 609

Independent of the implied consent statute, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth's age and a parent's presence are relevant factors for a trial court to consider in evaluating whether consent was voluntary under the totality of circumstances.

Are Statutes Criminalizing or Enhancing Sentences Based on Chemical Test Refusals Constitutional?

HOOVER v.
State of OHIO (6 th Cir. 2013)

No. 13–3330.

Unpublished Per Curiam

2013 WL 6284256

Hoover was arrested for drunk driving and refused to take a breathalyzer test. He was charged with driving under the influence under an Ohio statute which doubles the punishment if a breath test is refused and the suspect has a prior conviction. (Ohio Rev. Code 4511.19(A)(2)).

Hoover moved to dismiss the charge against him, arguing that the statute was unconstitutional because it penalized him for invoking his Fourth Amendment rights. The trial court denied the motion to dismiss and Hoover appealed.

The Ohio Court of Appeals agreed with Hoover's argument that he should not be subject to increased criminal penalties for refusing to take a breathalyzer test, and it vacated his sentence. State v. Hoover , 878 N.E.2d 1116 (Ohio Ct.App. 2007). The Supreme Court of Ohio, in a four-to-three decision, reversed the decision of the Court of Appeals and reinstated Hoover's sentence. State v. Hoover , 916 N.E.2d 1056 (Ohio 2009).

The Ohio Supreme Court’s decision was pre- McNeely , and like a number of other jurisdictions, it read Schmerber too broadly and concluded that exigent circumstances for a warrantless chemical test exist anytime an officer has probable cause to believe a suspect has been driving under the influence.

The United States Supreme Court denied certiorari. Hoover v. Ohio , 559 U.S. 1093 (2010). Hoover then filed a petition for federal habeas corpus relief. A magistrate judge recommended that the petition be denied, and the district court adopted this recommendation over Hoover's objections, but granted Hoover a certificate of appealability.

In order to be entitled to federal habeas corpus relief, Hoover was required to show that the Ohio Supreme Court's decision was contrary to or an unreasonable application of federal law clearly established by the Supreme Court. See Slagle v. Bagley, 457 F.3d 501, 513 (6 th Cir. 2006). Unfortunately for Hoover, the Supreme Court has not spoken directly on this issue. As did the dissent in the Ohio Supreme Court opinion, he cited Camara v. Municipal Court , 387 U.S. 523, 540 (1967) for the proposition that he could not constitutionally be convicted for refusing to consent to a warrantless search. That case involved a property owner who was faced with criminal charges for refusing to allow an inspection of his property. The Supreme Court noted that there was no probable cause to believe that the property owner had violated any law, and that there were no exigent circumstances that prevented the government from obtaining a warrant. Id ., at 539. In Hoover's case, there was probable cause to believe that he was guilty of driving under the influence, and he had already been arrested on that charge. The Supreme Court has also held that under exigent circumstances, even the more invasive blood test without a warrant to determine intoxication incident to an arrest for drunk driving is not an unreasonable search under the Fourth Amendment. [Citing Missouri v. McNeely , 133 S.Ct. 1552, 1556, and Schmerber v. California , 384 U.S. 757, 771 (1966). Therefore, Hoover's reliance on Camara is unavailing, as it is distinguishable from his case. The property owner in Camara had the right to insist on a warrant, and Hoover did not.

Because Hoover has not established that the Ohio Supreme Court's rejection of his claim is contrary to or an unreasonable application of federal law clearly established by the Supreme Court, the denial of his petition for a writ of habeas corpus is affirmed.

EDITOR’S NOTE: The Sixth Circuit obviously misinterpreted both McNeely and Schmerber when it declared Hoover had no right to insist upon a warrant. See Concurring opinion below.

STRANCH, Circuit Judge, concurring:

The statute at issue in this case is unusual: It criminalizes the refusal to submit to a breathalyzer test. Such laws, which are not common, raise unanswered questions regarding the limits of implied consent statutes and the imposition of criminal penalties for refusing a warrantless search. See Note, Taryn Alexandra Locke, Don't Hold Your Breath: Kansas's Criminal Refusal Law is on a Collision Course with the U.S. Constitution, 52 Washburn L.J. 289 (2013); D. Bernard Zaleha, Alaska's Criminalization of Refusal to Take a Breath Test: Is it a Permissible Warrantless Search Under the Fourth Amendment, 5 Alaska L.Rev. 263 (1988). The Supreme Court has not yet addressed this kind of statute. But as we stated in Slagle, “a state court... does not act contrary to clearly established law when the precedent of the Supreme Court is ambiguous or nonexistent." 457 F.3d at 514.

I concur, therefore, only because Hoover has not satisfied AEDPA's strict requirement that his conviction is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d).

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