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35 Crim. Just. 27 (2020-2021)
The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do

handle is hein.journals/cjust35 and id is 93 raw text is: CRIMINAL JUSTICE I SUMMER 2020 The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests BY -ON. ZUBERI BAKARI WILLIAMS Usually, a refusal to take an alcohol breath test ends the collection of evidence of alcohol for routine DUI stops. (DUI and DWI are used in- terchangeably for the purposes of this article. The fo- cus is on all alcohol-related driving offenses.) In most jurisdictions, a refusal allows the prosecutor to argue for a negative inference against the driver, but that typically results in pleas and convictions for lesser alcohol-related offenses. Without some horrible ac- cident or shocking behavior by the driver caught on police body-worn camera, a refusal significantly alters the prosecution of DUI cases. That is, until now. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (June 27, 2019), the Supreme Court explained that the right mix of circumstances in a DUI encounter can create an exception to the warrant requirement and allow a forced blood test of the driver (here the driver was unconscious and could not consent; Wisconsin is an implied-consent state). In Mitchell, the Court deter- mined such circumstances did not exist in the case at bar. However, in reaching its conclusion, the Court re- inforced the preference that law enforcement should first seek warrants from judges or magistrates in DUI cases. Some state and local prosecutors are seizing on this language to support a new policy of seeking warrants from judges in routine DUI cases where the driver is conscious but refuses to take the breath test. If the warrants are granted, it improves pros- ecutors' ability to seek DUI convictions for greater offenses, leverage more favorable plea offers, and ask judges for longer jail sentences. Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database orretrieval system without the express written consent of the American Bar Association. This article is aimed at igniting a policy discussion on the role of judges in granting warrants for forced blood draws, post-Mitchell. To be sure, none of the suggestions below are required as a matter of law. Some of these recommendations may even be perceived as provocative or difficult to administer. However, given the serious nature and consequences of forcibly taking a person's blood for evidence, critical and novel thinking is warranted. First, the judge should use an evidentiary standard greater than the mere probable cause required by law because blood draws are fundamentally invasive and eviscerate traditional notions of privacy. Second, judges should prescribe the manner of collection, retention, and destruction of the blood seized to prevent misuse of samples, including DNA data collection. Third, judges should keep demographic data on drivers and determine if there is a pattern or practice that violates notions of fundamental fairness and equal protection, especially for people of color and other historically targeted groups.

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