On April 18, 2013, the United States Supreme Court made a ruling that directly affects Drunk Driving Cases in California and across the country. The Supreme Court case is Missouri v. Mcneely, 2013 DJDAR 4918. Previous to this court ruling it was generally held that if a driver suspected of driving under the influence of drugs or alcohol refused a chemical test then he could be forced to give blood without requiring a warrant from a judge. In its most extreme, the driver could actually be forcibly strapped to a chair and blood drawn from his body, all without a warrant. This meant that the officer involved in the arrest would make the decision on whether to conduct a “search” of the driver’s blood by piercing his skin to extract the blood.

It is well established that a search inside one’s body is a search protected under the 4th Amendment to the Constitution. As such, a warrant must issue from a judge to allow the search to occur. There are various exceptions to the warrant requirement to include if the person consents to be searched or if exigent circumstances exists. Exigent circumstances refers to a situation that requires an immediate search out of fear that the evidence may not be available if law enforcement has to wait for a warrant.

In drunk driving cases the exigent circumstance that commonly exist is the dissipation of alcohol (or drugs) from the blood of the suspect as time passes. There is no debate that the liver will eliminate alcohol from the suspect’s blood at about the rate of one drink an hour for a 175 lb man. So, the more time that passes between the time of driving and the blood test may cause law enforcement to lose evidence needed to make their case.

In the Mcneely case, the Supreme Court decided that from now on, the natural dissipation of alcohol from the blood is no longer an automatic exigent circumstance making a warrant unnecessary. Each case must be decided on its individual merit when deciding if a warrant should have been procured. The court noted that technology is such that a warrant could be issued by telephone and therefore relatively quickly without unduly compromising law enforcement’s ability to gather evidence. Until the Supreme Court’s decision, alcohol dissipating from blood was considered an exigent circumstance where no warrant was required in California. That is no longer the law.

Practically speaking however, this decision may not change how drunk driving cases are handled. Most people will probably still consent to a chemical test (blood or breath) because a refusal can lead to a 1 year license suspension by the DMV irrespective of what happens in court. To most people the license suspension is worse then a misdemeanor conviction for drunk driving, especially in far flung, car dependent Southern California. In order to accommodate the Supreme Court decision the county courts will probably designate judges to be on 24-hour call in order to evaluate whether a warrant should issue in a drunk driving case. In fact, Orange County already has a 24- hour judge on call for the purpose of deciding bail. While judges will certainly not be happy about having to deal with making a warrant decision at 3:00 am because a Newport Beach reveler drank too many and got in his car, it will probably be considered only a minor inconvenience in the end.

Under the Constitution of the United States and the California State Constitution everyone has a right to a ‘Speedy Trial’. This means that once you are charged and/or in custody they must give you a trial within a reasonable time frame. The specific amounts of time are left to the states. In a California misdemeanor case you must have a trial within 30 days of your initial court date, also known as an arraignment, which is when you enter a plea of guilty or not guilty. In a felony case you are entitled to a trial within 60 days of your arraignment. Also, if taken into custody in California you must be seen by a Judge within 48 hours of your arrest not counting weekends or holidays. So, if you are arrested Friday night you must be seen by a Judge no later than Wednesday morning.

This brings us to the sad case of Stephen Slevin of New Mexico. Mr. Slevin was arrested in New Mexico for drunk driving and possession of a stolen vehicle in August of 2005. These are relatively low grade offenses. However, for reasons unclear, Mr. Slevin’s case never went to trial and he was not released until June of 2007, almost two years later. What is worse is that he spent most of his time in solitary confinement where he eventually lost his mind and was reduced to rocking back and forth with a blanket over him. In May of 2007 he was released to a mental hospital covered in bed sores and fungus. After recuperating somewhat in the mental hospital he was returned to solitary confinement before Prosecutors finally decided not to pursue charges based on his lack of competence. Two years is a very long time for someone to be detained pending charges. Spokesman for the county he was detained in blamed the District Attorney’s office and the Public Defender for the excessive time he was in custody. It would also seem that the jail personnel were seriously remiss in the care of this inmate. He apparently wrote notes daily while in custody asking for medical attention but none came. He eventually gave up.

After release Mr. Slevin brought suit against the county for the lack of medical attention and the delay in bringing his matter to trial. The jury awarded him 15.5 million dollars for his suffering at the hands of the authorities. Hopefully, the results of this suit will cause the authorities in Doña Ana County to pay better attention to its inmates.

Here is a CNN News video covering this story.

If you are having trouble viewing the video, you can see it here

Criminal Law Updates Law Offices of Orange County Criminal Defense Attorney William W. Bruzzo (714) 547-4636

Related Articles

• ‘Forgotten’ Inmate Gets $15.5 Million After 2-Years in Solitary (ktla.com)
• New Mexico inmate left in solitary confinement for 2 years gets $15.5 million (foxnews.com)
• ‘Forgotten’ inmate gets $15.5 million settlement from N.M. county (cnn.com)
• Left in solitary for 2 years, man gets $15.5 million settlement (usnews.nbcnews.com)
• Man left in solitary confinement for 2 years gets $15.5 million settlement (usnews.nbcnews.com)

Home confinement also known as Supervised Electronic Confinement (SEC) or Electronic Monitoring is an alternative to jail in Orange County as well as other counties in California.

If an individual must serve time for an offense home confinement is the least intrusive, least troublesome method of satisfying the court. Home confinement usually consists of having a device placed on your leg near your ankle. It is normally about the size of a wallet and it is invisible as long as the person wears pants. However, some home confinement systems use a device that has the same size and appearance of a wrist watch. Regardless, they all work the same way using a satellite based system to monitor the individual 24 hours a day 7 days week.

Often times, the individual must pay to use this jail alternative even if the court orders the person to serve their time with home confinement. However, if the home confinement is provided by the municipality the price may be adjusted in consideration of the person’s income.

Why Courts Permit Home Confinement

Home confinement was initially created as a way of “incarcerating” people too sick to serve their time or otherwise disabled. The idea being that it would be overly difficult for the jail to care for the person medically and might put the person’s life at risk. More recently, the main reason counties permit home confinement is because of costs. It is very expensive to house someone in county jail and in an effort to reduce costs and avoid overcrowding which can lead to violence in the jail and law suits, many county judges began resorting to home confinement as a cost effective measure.

How to Get Home Confinement

Generally, your lawyer must request permission for you to be permitted to serve your time on home confinement. It is usually the judge who must grant permission. Often times the judge permits home confinement over the objection of the District Attorney. Notably, some courts in Orange County permit home confinement more readily then others; also, a particular judge may allow home confinement while another in the same court house may be opposed to it. Mr. Bruzzo’s experience with the courts and the judges in Orange County has permitted him to learn who is friendly to home confinement and who is not. This knowledge has been very beneficial to Mr. Bruzzo’s clients. For some courts as long as the Judge does not indicate on the plea forms that home confinement is not permitted, then the person may apply. If you are applying for home confinement through the county, the county must determine your suitability. Sometimes persons with failures to appear on their record or a history of violence may be deemed unsuitable. However, in practice none of these things are an absolute bar.

Types of Home Confinement

In addition to different systems (ankle device, wrist device) there are also different providers. In Orange County it is best to go through the Department of Probation who contract out the actual confinement system. This is the cheapest way to go about it as you will be billed based on your income. However, if you are not approved by the Department of Probation you may still be able to serve home confinement using private companies who provide the device and monitor the individual for a fee. This of course requires court authorization.

Typical Crimes Where Home Confinement is Permitted

Second time Drunk Driving cases are the most common case where home confinement is permitted. However, some Judges do not permit it for this type of offense. That is why it is important to know the Judges. Mr. Bruzzo has successfully got home confinement for many second time drunk driving cases. For third time Drunk Driving cases home confinement is usually not permitted but there are exceptions. For cases of drug sales, violence or weapon offenses home confinement may not be permitted barring an exceptional reason and a skillful lawyer. Theft offenses are usually conducive to home confinement. Notably, Mr. Bruzzo did get home confinement for a client charged with a weapons offense. Home confinement does not apply to state prison sentences.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636.

The new theft case brings Ms. Lohan’s legal problems up a notch because now she can be charged with a felony and faces a maximum of three years in prison for the offense. While it is very unlikely that she would serve anything close to the maximum time in prison, her past record of violating her probation and generally failing to comply with the terms of her probation could subject her to a much harsher sentence then a first time theft offender. See Penal Code Sections 459, 487(a), 240-242.