Author Archives: wthornburg

High Court ruling forces police to get warrant for BAC tests

States that made it a crime for drivers suspected of drunken driving to refuse alcohol tests now will find it more difficult to obtain evidence in some circumstances.

The U.S. Supreme Court ruled that police must get a search warrant before forcing drivers to take a blood alcohol test.  Breath tests done by blowing into a machine were considered less intrusive and therefore no warrant is required.

There were three cases involving drivers who challenged what are known as “implied consent laws.”  The cases, brought in Minnesota and North Dakota, claimed that the implied consent law violated the Constitution’s ban on unreasonable searches and seizures. The decisions had been upheld in each State’s supreme court.

The Court’s ruling affects laws in eleven states that had imposed additional criminal penalties for suspects who refused drunk driving tests.  Drivers in all states can have their licenses revoked for refusing.  Besides Minnesota and North Dakota, additional states that criminalize a driver’s refusal to take alcohol blood or breath tests are Louisiana, Tennessee, Alaska, Florida, Indiana, Vermont, Virginia, Nebraska, and Rhode Island.

Justice Samuel Alito, writing for the majority, said breath tests do not implicate “significant privacy concerns.” Alito went on to say that unlike blood tests that extract blood, the breathing into a breathalyzer doesn’t pierce the skin or leave a biological sample in the government’s possession.

The challengers argued before the high court that warrantless searches should be allowed only in “extraordinary circumstances,” and that privacy rights should apply during routine drunk driving stops because they are ordinary law enforcement functions.

Justice Clarence Thomas dissented, saying he would have found both tests constitutional. Whereas Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both blood alcohol and breath tests. 

State officials, on the other hand, argued that the testing laws were a legitimate condition on the privilege of using state roads. 

State prosecutors stated that forcing police to get a warrant every time a driver refused a test would be too burdensome.  They pointed out that in some rural areas only one judge might be on call late at night or on weekends.  They further argued that even if police get a warrant, a driver can still refuse to take an alcohol test and face lesser charges for obstruction.  Some justices stated in oral arguments that that magistrates are easily reachable over the phone in just a few minutes to get a warrant.

Several civil liberties groups weighed in on the debate saying that states can’t criminalize the assertion of a constitutional right, whereas Mothers Against Drunk Driving contended that the laws were needed for public safety.

 

Judge finds municipal court reform law unconstitutional

Several North St. Louis County Municipalities have emerged victorious in their lawsuit regarding the municipal court reform laws passed into law in August of 2015. The Municipalities of Normandy, Cool Valley, Velda Village Hills, Glen Echo Park, Bel-ridge, Bel-nor, Pagedale, Moline Acres, Uplands Park and Vinita Park filed a lawsuit in November of 2015 alleging Senate Bill 5 was unlawful.

A Judge in Cole County agreed with them and struck down several portions of the law. The law reduced the amount of money a municipality could receiving from traffic ticket revenue to 12.5% from the 30% previously allowed. The 12.5% was limited only to the St. Louis County area due to the wording in the statute. The municipalities alleged that this 60% reduction with no alternative forms of funding would wreak havoc on St. Louis County Municipalities. Moreover, municipalities in the St. Louis County area would be required to undergo audits and expensive administrative activities to meet minimum standards such as having accredited police departments in six years. Judge Beetem struck down the provisions as no alternative funds were provided, making this law an unfunded mandate and contrary to the Missouri Constitution.

The municipal court reform bill or Senate Bill 5 arose from the 2014 shooting of Michael Brown in Ferguson and the resulting civil unrest. Investigations and reports have accused St. Louis County Municipalities of using their court systems as abusive fundraising tools.

Both Plaintiffs and Defendants are unclear as to whether the Judge’s ruling reinstates the 30% cap previously in place or simply makes the St. Louis County area on par with all other counties in the state and removes the 12.5% cap specifically for that area in favor of the 20% cap statewide. The ruling prohibits the state from selectively apply sections of the law to St. Louis County only. It also eliminated the statewide requirement for yearly audits by the state auditor’s office.

The prevailing municipalities are very happy with the outcome citing Senate Bill 5 as reckless and without regard for the current law. They also hope this ruling with have some impact on another law being drafted currently proposing to limit income from non-traffic related ordinances.

Backers of the reform are disappointed. Eric Schmitt, the main proponent behind the law, stated:

“This is another example of why so many Missourians have lost faith in government, the justice system and big institutions because they make them feel powerless and used. For years, citizens have been abused by local bureaucrats who have treated them like ATMs to fund their bloated budgets, salaries and perks. These same bureaucrats used the tax money they collection to hire an out-of-state attorney and lobbyists to fight the most significant municipal court reform ever enacted in Missouri.”

State Auditor, Nicole Galloway has indicated that her office is reviewing the ruling and the ongoing initiative that involves more aggressive audits of the municipal courts will continue regardless of what happens with the lawsuit.

Governor Jay Nixon took a more diplomatic approach vowing to work with the Legislature to make the needed changes to the law to make sure Senate Bill 5 can be “fully and fairly enforced.”

Attorney General Chris Koster will likely appeal the ruling.  

 

 

Village of Four Seasons opposes new Senate Bill

Senate Bill 572 is a continuation of the Missouri Senate’s attempt to regulate the municipal court system throughout the state. This new bill adds zoning and nuisance ordinance violations to the calculation of minor traffic violations. The annual percentage of operating revenue that a municipality can receive from these types of fines and court costs has been lowered from 30% to 20%. Furthermore, the fines would be lowered from $300 to $200.

The Village of Four Seasons has gone on record opposing this new bill. Village Attorney, Todd Miller, told legislators, “We reasonably anticipate that the passage of the bill will be far reaching and will cause the closure of many other municipal courts in Missouri in that ours is likely an exemplary model of how courts should be run.”

The Missouri Municipal League also opposes the bill. The MML says the bill:

• Lessens a city’s ability to rehabilitate neighborhoods and protect property values for citizens
• Removes the use of graduated fines for repeat offenders.
• Has little effect on the most egregious violators who will be unmoved by a $200 fine. This greatly impedes a city’s ability to hold nuisance violators responsible.
• All cities — large and small – work with nuisance and derelict properties. After a maximum $200 fine is issued, violators have no incentive to remove rubbish, trash, tall grass, noxious weeds, derelict cars, flammable materials, and unhealthy and unsanitary conditions.

The Village of Four Seasons argues if this bill passes, it will be required to send all tickets and violations to the Camden County Associate Court. The Associate Court, according to Miller, already has heavy dockets and he feels this measure will cost more in time and money than allowing the tickets to remain in the jurisdiction of the Village.

 

Breathalyzer testing solutions need only to come from approved supplier.

Last week the Appellate Court in the Eastern District of Missouri heard two cases regarding the regulations for maintenance of breathalyzer machines.

In these cases, the drivers argued that their breath tests should not be admitted as the mixture used to perform maintenance checks on the breathalyzer was not proved from an approved supplier.  In both cases, maintenance reports indicated the supplier was Intoximeters, an approved supplier from the Department of Health and Senior Services. Airgass was the manufacturer. Airgas is not listed as an approved supplier. The drivers maintained the testing solution needed to be supplied and manufactured by an approved supplier.  Without meeting this component, the Driver’s stated the Director of Revenue failed to lay a proper foundation to admit the results of the breath test.

While the Department of Health and Senior Services regulations once required that the manufacturer certify the solutions, the regulation no longer makes mention of manufacturers. The Court held that the manufacturer of the material used to verify and calibrate the breathalyzer is no longer relevant for the purpose of laying a foundation for the admission of results from that machine.  Further,  the supplier no longer has to certify the testing solution.  

Brentwood passes inattentive driving law

Brentwood recently passed a new measure to make inattentive driving akin to careless and imprudent. This includes things like adjusting a GPS or grooming in your vehicle.

Turning away from the road is “prima facie evidence that a vehicle operator is not exercising the highest degree of care.”

The measure was passed on Monday by the Brentwood Board of Alderman with a 5-2 vote. Opponents indicate that the language in the bill makes it discretionary if an offense has occurred.

Other prohibited activities include: “Using a mirror to engage in grooming; reading anything located in the vehicle other than operation information displayed on vehicle gauges and equipment; writing, drawing; manually imputing information into a GPS or mapping device; or turning one’s head substantially away from the path of travel to observe things in the vehicle or outside the vehicle but contrary to the path of travel.

New Missouri bill proposed to limit municipal revenue for property violations

Sen. Eric Schmitt, the person behind the new law that limits the amount of revenue municipalities can keep from traffic cases, has created a new bill to cap revenue from ordinance violations. In the St. Louis County area the permitted amount of traffic fine revenue per municipality dropped from 30% of the operating budget to 12.5%. This new bill would put a cap on revenue from property code violations which Senator Schmitt hopes will pre-empt “a new taxation by citation scheme.”

The Post Dispatch reports Pagedale has been focusing enforcement on violations such as barbecuing in the front yard or having a beer within 150 feet of the grill. Currently, non-traffic citations are not subject to the cap.

However, Pagedale City Attorney, Sam Alton, stated “If the target is the housing code, the revenue is not what matters. What matters is a city’s ability to maintain its properties.” Further stating the revenue from these types of citations is very little.

Schmitt is also proposing a ban on traffic ticket quotas for police departments.