by Adam Vanek, MADD General Counsel
Last week, I had the honor and privilege to represent MADD in Washington, D.C. attending oral arguments before the United States Supreme Court in Birchfield v. North Dakota, et. al. MADD filed an Amicus Curiae Brief, or Friend of the Court, in this matter supporting law enforcement and the States’ fight against drunk driving.
In front of a packed courtroom, the Justices addressed whether States, without a warrant, may impose minor criminal sanctions - usually misdemeanors - against a suspected drunk driver who withdraws his or her implied consent and refuses to submit to a blood alcohol concentration test after arrest. North Dakota, Minnesota and at least ten other states make it a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a BAC or chemical test.
The genesis of these criminal penalties, arises out of pure frustration by legislators and law enforcement that administrative sanctions, such as license revocation, no longer serve as a deterrent because offenders will continue to drive.
The Supreme Court considered three cases Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota, where the offenders argue that imposing minor criminal penalties for withdrawing their implied consent - refusing a warrantless BAC test after arrest - violates their Fourth Amendment right against unreasonable search and seizure. Make no mistake, the evidences shows that all three offenders were drunk and behind the wheel. No one denies that much.
The offenders’ argument is two-fold: (1) a BAC test is a search that intrudes one’s bodily integrity, and therefore unreasonable; and (2) the threat of minor criminal sanctions is a punitive form of coercion which disqualifies an offender’s consent. In fact, the offenders argue that all BAC tests require a warrant regardless of circumstance.
Most Supreme Court journalists agree, that counsel for both sides of the argument - the offenders and conversely, counsel for North Dakota and Minnesota - struggled to articulate their arguments. In all fairness, unless you're the Deputy Solicitor General, this was probably the first time counsel for both sides argued in the hallowed halls of justice – the Holiest of Holies for lawyers - in front of living legends such as Ruth Bader Ginsburg, Sam Alito, Stephen Breyer and Clarence Thomas. It was truly an awe inspiring experience.
Since I was a mere observer sitting “bench” and just like any football fan on Monday, I am playing a little arm chair quarterback regarding some “plays” that were not called on fourth and one.
1. The Fourth Amendment protects a citizen from unreasonable search and seizure, not from every search.
In all three cases, the offenders were arrested for suspicion of drunk driving. The arresting officers performed field sobriety tests on the offenders, observed the smell of alcohol, bloodshot eyes, inability to walk a straight lines and in some cases failed the field breath test. The officers had more than probable cause to conduct a search and request a BAC test. The Justices asked why North Dakota or Minnesota could not obtain and “insta-warrant” over the telephone, similar to Wyoming which can obtain a warrant within 5 minutes.
Practically speaking, at what point does an “insta-warrant” just become a perfunctory exercise? If an officer can call a magistrate and get a warrant in less than 5 minutes, then obviously the magistrate has full faith and credit that the officer had probable cause and is merely making sure that the i’s are dotted and t’s are crossed. The idea that the magistrate serves a neutral body, especially when a warrant can be obtained over the telephone in less than 5 minutes, is an antiquated model that does not practically translate in today's on-demand world. In other words, the "insta-warrant" has merely become a superficial hoop that law enforcement is obliged to jump through for show.
2. The State’s compelling interest to protect the safety of its citizens far outweighs any minimal right to privacy of the offender.
Fortunately, the Supreme Court acknowledged that drunk driving is a serious public safety threat. Challenge after challenge, the Supreme Court reminds the public, “The increasing slaughter on our highways [caused by drunk driving], most of which should be avoidable, now reaches the astounding figures only hear of on the battlefield.” Counsel for the offenders did not dispute the tragedy of drunk driving fatalities, but argued that individual privacy was more important than saving lives.
Justice Kennedy responded, “Innocent lives are at stake, why can't we just say that this falls within the special-needs exception.” It should be undisputed that States and the Federal government have a moral obligation to stop the “slaughter on our highways” and that this serves as a special needs exception to the general warrant requirement. Justice Alito broke it down to brass tax by stating the minor privacy inconvenience is not what's being disputed but rather, “The real gripe with the test is that they just don't want their blood-alcohol levels tested.”
3. In the history of jurisprudence, the Supreme Court has never drawn an absolute line in the sand regarding the Fourth Amendment and should not do so now.
MADD argues in its Amicus that the Supreme Court has never required a per se ban on all criminal penalties when it comes to the Fourth Amendment. In fact the Supreme Court has uniformly rejected such categorical rules in favor of a case-by-case analysis based on the totality of the circumstances. And although neither the offenders’ nor the States’ briefs address the distinction between a breath test and a blood draw, the Justices spent a considerable amount of time asking counsel on both sides about the practical difference.
Justice Breyer asked, “And I don’t find this very much in the briefs, and it surprises me… Why isn’t there a big difference between a blood test and a Breathalyzer?” Justice Kagan added, “This [breath test] is about as uninvasive as a search can possibly be.” While this may seem as a promising line of questioning regarding breath tests, the opposite holds true for a blood draw.
Justice Kagan continued, “There’s something very different in the level of invasion [between a breath test and a blood draw], and certainly it’s appropriate to look at the invasiveness of a search when deciding whether to do a search incident to arrest.” Unfortunately, counsel for either State’s response to such distinction fell short.
The Deputy Solicitor General tried to save this argument by emphasizing the importance of a blood draw when it comes to drugged driving, but was cut off by Justice Breyer saying that a warrant could be obtained in the time it takes to transfer the offender to the hospital for testing.
While I am not Carnac the Magnificent, I predict the Supreme Court will determine that a warrantless breath test survives constitutional muster as a search incident to arrest. However, and in light of the Missouri v. McNeely opinion two years ago and the statements made by the Justices, a warrantless blood draw may be another matter. With the recent passing of Justice Scalia, a 4-4 decision would uphold the lower State Supreme Courts’ rulings and serve as a temporary victory. Therefore, MADD’s fight to eliminate drunk driving is far from over. We must continue to wage our Campaign to Eliminate Drunk Driving in the courts, in the Capital buildings and in the hearts and minds of every American.
By Kathy Kilgore Beeler
When one of my family members calls someone a “Cole,” it means something special.
It’s family shorthand for calling someone Compassionate, Obedient to God, Loving and Enthusiastic toward life – all such core personality traits of my handsome son Cole, who was killed while riding with a drinking driver.
Cole Hansen Kilgore was my little stinker, my only child. He was charismatic, fun-loving and always kept me on my toes. He had a sense of humor that charmed everyone around him. He was a city boy who lived in the country, so he knew how to both skateboard and skeet shoot. He was compassionate, and always tried to take care of me, even when it wasn’t his responsibility. Most importantly, he was the only person who called me “Momma.”
People gravitated towards Cole. He simply pulled people into his stratosphere, and you felt lucky to be there with him.
Cole wasn’t a perfect child. He was perfect to me, but Cole had his struggles with underage drinking and drugs. When I found out, I talked to him and moved him to a new city to be around new friends; we worked together to turn his life around. I remember speaking with him about the dangers of alcohol when he was 12 or 13 years old. I wish I had spoken to him sooner, but I never imagined alcohol would be on his radar at such an early age.
When Cole turned 19, I could tell that he was really trying to turn his life around. He was looking to start college classes and worked with a construction company in the summer. He never wanted me to worry; he repeatedly told me, “Momma, everything is okay. I’m okay.”
On June 4, 2011, Cole was still living at home, and he shouted out that he was going down the road to visit his friend and would be right back. I told him I loved him, and he yelled it back before driving two miles down the road. Just two miles…
Cole went down to a friend’s house where a group of older guys were sitting outside drinking. Even though Cole was sober, he made the choice to get into a truck with a man who had been drinking. Intoxicated, the driver recklessly drove more than 100 miles per hour before careening into a guardrail, hitting the gas tank on the driver’s side. The truck went up in flames, engulfing the driver and Cole. The driver died at the scene, but my Cole managed to pull himself out of the vehicle.
When I arrived at the hospital I saw my handsome boy with burns covering 95 percent of his body. Cole looked at me and said, “I’m sorry; it was stupid.” He knew that he had broken my heart. “Momma, I’m a burnt chicken,” he joked in typical Cole fashion, trying to make me laugh. His nickname in high school was ‘Chicken Legs.’ My sweet boy was in pain, and was put in a medically induced coma. After being life-flighted to a larger hospital, I said I love you to Cole for the last time.
In my mind, I kept thinking the doctors would save him, that somehow this great miracle would occur, and I could just switch places with him.
But my baby boy with the bluest eyes imaginable took his last breath. We stood by his side, still praying for that miracle that never arrived.
Before Cole passed away, I never thought about joining a group like MADD. That’s exactly what MADD is – a family you never knew you needed – until you suddenly need them desperately.
Today, I try to share my story to prevent this from happening to others.
This April, I’m partnering with MADD in honor of Cole. April 21st is MADD’s PowerTalk 21 Day, the national day for parents to begin ongoing conversations with their children about the dangers of alcohol, and the dangers of riding with a drinking driver. Parents, please use MADD’s Power of Parents tools and have these lifesaving conversations with your children. Download the free materials at madd.org/powertalk21.
When Hannah Rebekah Morales entered a room, it lit up, not only from her smile and personality, but from her willingness to help and inspire others. She was loved by her parents, family, teammates, friends, coaches, and really anyone she came into contact with. Hannah had a passion for sports ever since her mother could remember. Hannah’s connection to sports allowed her to travel and compete against teams across the country. Her parents found joy in watching their daughter play sports, and spent many hours traveling and cheering her on.
On December 31, 2015, Hannah went to a New Year’s Eve party with a group of friends. There was underage drinking at the party and even though people knew the driver had been drinking, they didn’t stop him from driving. At just 16 years old, Hannah was killed after being ejected from a vehicle driven by a driver with a BAC of .208, more than twice the legal limit. The driver survived the crash. He pled guilty to criminally negligent homicide, and was sentenced to 5 years of probation. Hannah’s parents were devastated by the courts decision, they believe that probation shouldn’t be an option when someone kills someone else in a drunk driving crash. They continue to remain positive in honor of Hannah but would also like to see laws change to reflect the seriousness of the crime.
Hannah had never been in trouble in the past, her parents hadn’t had a reason to worry about what she was doing that night. Anita, Hannah’s mother, wishes she would have spoken to her daughter more about underage drinking, and encourages all parents to talk to their adolescents about the possible consequences. She believes drunk driving is a selfish act that is completely preventable. She hopes that Hannah’s story will prevent others from making the same mistakes and save lives.
This week, MADD shares PowerTalk 21, a day dedicated to creating intention, ongoing, and potentially lifesaving conversations between parents and kids about alochol. Join us to learn valuable strategies for how to talk with your child or teen about not drinking and not riding with a drinking driver.
MADD CEO and parent of two Debbie Weir takes the PowerTalk 21® drinking myths quiz and shares key insights into some dangerous ideas about alcohol and kids. Take the quiz with us to be automatically entered to win an Amazon Echo, Kindle Fire HD, or one of two gift cards for a date night!
If you missed it, last week we learned more about parenting styles and how they influence a child's attitudes toward alcohol. Watch it now!
The Maryland all-offender ignition interlock bill, dubbed Noah’s Law after Officer Noah Leotta, who was killed in December by a suspected repeat drunk driver, unanimously passed both Houses late Monday night, mere moments before the session ended for the year.
This historic piece of legislation, ignored and delayed for years, now heads to the Governor for his signature, which will make Maryland the 26th state in the country to require ignition interlocks for all drunk driving offenders.
Noah Leotta’s parents dove into advocacy efforts, determined to prevent other parents from suffering from this 100% preventable crime. We thank them for their hard work.
We also recognize our tremendous partners in law enforcement, who stand in front of the danger to protect the rest of us, the Maryland legislators, who unanimously passed this lifesaving bill, and you! Your support of ignition interlocks, your letters and emails, your tweets and posts, your donations and volunteer hours – your actions made a real and recognizable difference.
Today, we are safer thanks to you.
Now, after a long-fought battle, it’s not time to stand down. It’s time to step up.
Twenty-four states remain without this critical protection against repeat offenders. That’s where we move our attention, because our mission doesn’t end until drunk driving ends.
Our work continues this year in California, Massachusetts, North Carolina, Ohio, Michigan, Pennsylvania, Minnesota, and Vermont, where lawmakers can send a strong message that they, too, want to protect their constituents from this horrific and violent crime. If you reside in one of these states, please consider sending a letter to your legislators here.
Join MADD and all people who believe in a future of No More Victims® today. Donate $50 in support of ignition interlocks in all 50 states. If you haven't read our first-of-its-kind, state-by-state Ignition Interlock Report, discover how this technology has already prevented more than 1.77 million drunk driving attempts.
Connect with MADD on Facebook to view more pictures from our efforts to get the Maryland bill enacted.