Maine DUI Defense Law Blog

Federal Drug Sentences Lowered

The United States has the sorry distinction of locking up a higher percentage of its citizens than any other country.  It is not that Americans break the law more than people in other countries.  We don’t.  The problem lies with the idea that putting people in prison is the cure for every act we believe to be criminal.  The idea that being “tough on crime” by locking up people will make crime go away is ingrained in our politicians’ minds.  That solution to crime utterly failed to win the war on drugs.  The only thing it got us is a huge prison population at the cost of billions of dollars each year to catch, prosecute and warehouse Americans.  The vast majority of these prisoners are non-violent offenders who pose little danger to the community.

Two sets of drug laws contributed the most to this problem of imprisoning too many of our non-violent fellow citizens.  The first was a set of mandatory minimum drug laws based on drug quantity.  The second was the Federal Sentencing Guidelines.

Congress passed laws creating mandatory minimum sentences for drug crimes based on drug quantity.  Before 2011 a person who sold 500 grams or more of cocaine powder faced a mandatory minimum sentence of 5 years in prison.  Five kilograms resulted in a 10 year mandatory minimum.  And these drug amounts were not based on the amount of drugs the person had at any one time.  The Guidelines added up the amount of drugs sold over time.  A one time sale of 500 grams of coke or the sale of two grams each week for a year both resulted in a 5 year minimum sentence.  Twenty years of these sentences did nothing to reduce the traffic in drugs.  Worse, these laws were both arbitrary and racially discriminatory.

While trafficking in 500 grams of cocaine powder triggered the 5-year mandatory minimum sentence, mere possession without sale or intent to sell crack cocaine triggered the same sentence.  This was based on the ideas that crack was more addictive than powder coke, that crack users and sellers were more likely to have firearms and engage in violence, and that crack had a greater effect than powder cocaine on unborn children.  Research by the Federal Sentencing Commission later proved these ideas to be untrue.  Nonetheless, for years after Congress kept the 100 to 1 ratio.  Five grams of crack or 500 grams of cocaine powder resulted in the same sentence.  There is no justification for this difference in punishment.  The folks selling powder were selling far more dosage units of cocaine for far more money.  When they got caught they served far less time in prison.

This powder-crack distinction was racially biased, as well.  Statistically, minority citizens are no more likely than whites to sell drugs.  Culturally, however, powder cocaine was more popular among whites than among minorities.  The result was that minority defendants were more likely to be sentenced for selling crack and whites for selling powder cocaine.  The minority defendants got far longer sentences for selling lesser amounts of drugs.

This lock’em-up-and-throw-away-the-key philosophy was also present in the Federal Sentencing Guidelines.  The Guidelines are the the rules used in Federal courts to establish sentencing ranges in criminal cases.  For years the courts treated them as mandatory.  Judges could only sentence a person under the Guideline level in limited cases.  In 2005 the Supreme Court finally held that they were advisory, and that judges were not bound by the ranges of sentences established in the guidelines.  Unfortunately, in many cases Federal judges still assume that Guideline sentences are reasonable.  Guideline sentences are all to often the default sentence.

The Guidelines for all drugs were particularly high.  Most of the people sentenced under those drug guidelines were non-violent offenders.  Often they got longer sentences than armed bank robbers or rapists.

The result of these laws was a huge prison population.  Since it costs well over $20,000 every year to keep a person in prison, these prison populations are costing us billions of dollars.

Between 1995 and 2007 the Federal Sentencing Commission submitted four reports to Congress about the crack-powder disparity as well as other drug guideline problems.  The Commission recommended reducing the ratio between crack and powder, and in later reports recommended reducing drug punishments generally.  These recommendations were based on the Commissions studies that showed these sentences being imposed were far too harsh, and did not result in the crime reduction sought.

Finally, in 2007, Congress began to act.  New laws reduced the sentences for crack by an average of about 15 months. The following year those changes were made retroactive.  Prisoners serving sentences under the old law could ask for a sentencing reduction.  If the judge found the person did not pose a danger to the community the sentence was reduced.  The average reduction was 26 months.  Later government studies showed people who got sentence reductions were no more likely to commit crimes after release than people who served full sentences.

Nonetheless, the disparity between crack and powder was still too high.  Sentences for other drugs were too high.  Mandatory minimums and huge sentences for mere possession of crack were still warehousing too many people.

In 2010 Congress passed the Fair Sentencing Act.  The Act reduced the ration between crack and powder to 18 to 1.  This means it now takes 28 grams of crack to trigger the 5-year mandatory minimum sentence and 280 grams for a 10-year mandatory minimum sentence.  The mandatory minimum sentence for mere possession of crack was repealed.  The Act is expected to reduce sentences imposed after its passage, on average, by 27 months.  It will save over $40 in the next five years.  As enacted, the FSA did not apply to people already sentenced.

Finally, it looks like that problem will be partially fixed.  On July 18, 2014, the Sentencing Commission voted to make the changes to the Guidelines made by the FSA reducing drug sentences, retroactive.  Although Congress must still approve that vote, it looks like it will pass.  As of November 1, 2014, it looks like the Guideline related changes of the FSA will be applicable to prisoners sentenced before the FSA.

Like other retroactive reductions, the prisons will not simply open the doors and let people go.  Prisoners must apply for reductions.  Judges will consider each case to determine whether the person is likely to be a danger to the community.  Violent offenders will not be released early.  To give judges time to make these decisions the first releases will not occur until November 2015.  Sentence reductions are expected to affect over 43,000 prisoners nationwide.  Some 12,000 crack prisoners will receive an average reduction of 37 months.

The only work left to be done is for Congress is to make the changes regarding mandatory minimums in the FSA retroactive.  Right now any reduction cannot go below the mandatory minimum.  People serving five years or more for just possessing (not selling) crack cannot be reduced below the mandatory minimum of 5 years.  Congress needs to act to make the mandatory minimum law changes of the FSA retroactive.  You can help by writing your Representative and Senators.

A leader in this fight is the group called Families Against Mandatory Minimums. For more information about this problem and what you can do, visit Families Against Mandatory Minimums’ website.


Is a DUI Breath Test an Illegal Search?

In DUI cases police routinely order people to take breath tests. For years no one gave much thought to whether such orders are legal. The 2013 case of Missouri v. McNeely may be changing that situation.

In McNeely the Supreme Court held that a warrant was required before a blood test could be taken against a person’s will. The argument went that sticking a needle into someone’s arm and taking their blood to analyze it invades a person’s privacy. Protecting personal privacy from government intrusion is the purpose of the Fourth Amendment. That amendment says that individuals are protected from government intrusion “in their persons, houses, papers and effects” from unreasonable searches.

As a general rule a search is unreasonable unless the police first obtain a warrant for that search.  The warrant must be based upon probable cause to believe the search will turn up evidence of criminal activity. A warrant is in order from a judge or magistrate that says there is enough evidence to believe a search will produce evidence of a crime, and therefore a search is allowed. When police search without a warrant it is presumed to be an unreasonable search unless it fits into a recognized exception to the warrant requirement.

Exceptions to the warrant requirement are limited. In most cases probable cause to believe the search will turn up evidence of a crime is still required. The police are not required to obtain a warrant, however, because of either urgent time limitations or other emergency situations. An example of such an emergency situation is when police enter a house to pursue a fleeing armed robber who they are chasing. Clearly, there is no time to get a warrant.

Other examples include entering a burning house to look for injured occupants, and entering a crack house where there is reason to believe the people inside are trying to dispose of the drugs before the police arrive. Other exceptions are searching a person for weapons or contraband when they been arrested, or searching their car when there is a possibility that they might pull a weapon out of the glove box.

Perhaps the most common exception to the warrant requirement, however, is consent. If a person consents to a search, a warrant is not required. Consent is not valid consent if it is coerced or obtained by trickery or deceit.  Consent must be freely given.

So how does this apply to breath tests? Several years ago, in a railroad employee drug and alcohol testing case, the Supreme Court decided that a breath test was a search, just like a blood test. That case was Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989). In Skinner the court said:

“We have long recognized that a ‘compelled intrusion into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth Amendment search. In light of our society’s concern for the security of one’s person, it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interest. Much the same is true of the breath-testing procedures required [under federal regulations]. Subjecting a person to a breath test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search. Skinner, 489 U.S. at 616–17.”

So it only makes sense that if a warrant is required for a blood test (McNeely) because it is a search, a warrant is also required for breath test.

Almost every state has enacted an implied consent law. Maine is one of those states. Implied consent laws say that if you drive on the roads in that state, you are presumed to have given consent to a test of your blood, breath or urine, for alcohol or drugs. If you fail to take a test when police seek a blood, breath or urine test, there are usually very serious consequences. At a minimum, your license will be suspended. In Maine you also face extra jail time and higher fines if you are convicted of the OUI charge. In some states, and in federal parks and other federal locations, it is a separate crime if you refuse a test. So is your “consent” to submit to a blood, breath or urine test because of implied consent law freely given consent? At least one court says “no.”

The Supreme Court of Arizona recently held in State v. Butler, 302 P.3d 609 (Az. 2013), that a juvenile driver who was read the implied consent consequences for refusal was coerced into giving consent to a blood test. This makes sense. When you take a test because you will lose your license or go to jail if you don’t take it, your consent to take the test is not voluntary. It is coerced by threats.

According to the Supreme Court a warrant is required for blood tests in DUI cases because a blood test is a search that invades personal privacy.  The Supreme Court also says that a breath test is a search, just like a blood test.  So if a warrant is required for a blood test, and a breath test is a search just like a blood test, shouldn’t a warrant be required for a breath test?  This issue is being raised in more and more states. I am fighting the issue here in Maine.

Supreme Court case is changing DUI defense

A little more than a year ago the United States Supreme Court decided a case that is having a significant effect on DUI cases around the country. In April, 2013, the Court decided the case of Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). This post, and several posts to come, will look at McNeely and discuss its effect on DUI cases. This post will provide a background to that discussion.

Police in the state of Missouri stopped Mr. McNeely because he was driving erratically. After field sobriety tests he was arrested for DUI. The officer took him to the station for a breath test. Mr. McNeely refused that test. The officer then took him to the hospital where he was given a blood test, despite his refusals. The officer did not obtain a warrant for the blood test. Mr. McNeely’s blood test result was over the legal limit.

Mr. McNeely’s lawyer filed a motion to suppress the blood test result. He argued in that motion that the police were required to get a warrant to draw Mr. McNeely’s blood, before they drew his blood. Because they did not obtain a warrant that blood draw violated the Fourth Amendment to the United States Constitution. Mr. McNeely’s lawyer asked the court to exclude the test because of that constitutional violation.

The Missouri court judge who heard the motion to suppress agreed with Mr. McNeely’s lawyer. The test was ordered suppressed, meaning that the State of Missouri could not use the test result at trial. The State of Missouri appealed that decision to the Missouri courts. Both the Missouri Court of Appeals and the Missouri Supreme Court agreed with Mr. McNeely’s lawyer and the first judge. They upheld the order that the test should be suppressed.

The State of Missouri then asked the United States Supreme Court to hear the case. The Supreme Court agreed and issued a writ of certiorari. A writ of certiorari is an order to a lower court, in this case to the Missouri Supreme Court, ordering that court forward the case to the United States Supreme Court so that the case may be heard.

In the United States Supreme Court the State of Missouri made a very limited argument. They asked the Supreme Court for a rule that said a warrant is never required in a DUI case because alcohol dissipates (goes out of the body) so fast that there is no time to get a warrant. This exception to the warrant requirement is called an “exigency” or an “exigent circumstance.” Exigency circumstances are limited exceptions to the warrant requirement. Other exigent circumstances include searching a motor vehicle without a warrant because the vehicle can be easily moved, and seizing contraband without a warrant, such as drugs, because the drugs are in plain sight.

The United States Supreme Court refused the State of Missouri’s request. The Court noted that previous cases discussing the dissipation of alcohol and exigency occurred when it was very difficult and time-consuming to obtain a warrant. Today modern technology makes it very easy to obtain a warrant quickly. The Court agreed with the Missouri courts that in this case a warrant was required and the test result should be excluded at trial.

Despite this decision, police still routinely obtain blood tests without attempting to get a warrant. Lawyers around the country are challenging this practice. Even more interesting, is that the McNeely ruling arguably applies to breath tests as well as blood tests. In upcoming blogs I will analyze the McNeely case, discuss its possible impact on DUI cases, and look at some of the cases around the country that rely on McNeely.

Extending the DUI lookback – The Maine legislature gets it right

Much to my surprise the Maine Legislature voted overwhelmingly to reject extending the lookback for OUI’s from ten years to fifteen.  In my last post I agreed with the prosecutors that a better idea was to make it a felony for anyone who gets an OUI, and who previously had an OUI conviction.  Extending the lookback would not affect many problem drinkers.  Treating prior DUI felons as felons for the next DUI limits the extended lookback to people who have demonstrated themselves to be a danger to others.

I suspect our representatives also looked at the added cost of jailing people and decided it was a bad bargain.  The state budget is a mess and there is little money for jailing more people.

Extending the DUI look back in Maine

The State of Maine is debating whether to increase the look back time for DUI convictions. The look back is the amount of time that must pass after a DUI before the next one is considered a first offense. The present look back in Maine is 10 years. That means if you get a DUI today, and you had one within the last 10 years, this one counts as a second offense.

The legislature is considering whether to extend the look back to 15 years. The justification offered by the legislator who submitted the bill is that people who have DUI’s should be treated very harshly if there is ever a subsequent offense. He did not offer any information to suggest that there was a problem by limiting the look back to 10 years. It seems he pulled the number out of a hat.

Another approach, one urged by the District Attorneys, is that the normal look back for misdemeanor DUI’s should remain in 10 years. But anyone convicted of a felony DUI (DUI with serious bodily injury or death, or a third or subsequent offense DUI) should have every subsequent DUI treated as a felony.

On this one I happen to agree with the District Attorneys. My experience is that problem drinkers who drive are likely to be caught with a 10 year look back. A 15 year look back would do very little to make the roads safer.  DUI felons, however, are more likely to pose a continuing problem. Allowing for all subsequent DUI’s to be felonies would make the roads safer by allowing extended suspensions for the most dangerous drivers.

Finding myself in agreement with the District Attorneys is a rare position for me. In this case, however, they seem to have hit the nail on the head.

Extending the look back would affect anyone for whom 15 years had not passed. This means that if you had a DUI 11 years ago, and the 15 year look back is enacted, it will apply to you. The only exception is that people who are facing DUI charges at the time an extended look back is enacted will not have that extension applied to them. A pending first offense will not become a second offense.

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