Category Archives: Drug or alcohol testing

M.D.Fla.: SW for cell phone permitted accessing his apps via internet with phone

The search warrant for defendant’s cell phone was issued with probable cause. The permissible scope of search included applications on the phone but having to go to the internet via the app. Moreover, the warrant for searching the phone included … Continue reading

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IA: Two employees erroneously made “safety sensitive” for workplace drug testing

In this employee drug testing case, the employer wrongly classified two employees as “safety sensitive.” “Courts that have considered whether a position was ‘safety sensitive’ for purposes of satisfying Fourth Amendment or statutory protections likewise focus on the specific requirements … Continue reading

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WI: Warrantless blood draw from incapacitated driver unconstitutional

Wisconsin’s statute allegedly permitting blood draws of incapacitated drivers is unconstitutional for lack of actual consent, but the good faith exception saves it today. State v. Prado, 2021 WI 64, 2021 Wisc. LEXIS 98 (June 18, 2021):

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PA: DUI with agg. assault was sufficiently exigent to dispense with SW for BAC

Defendant was accused of DUI and aggravated assault, and the officer decided that the additional complexity of investigating the assault charge made a warrantless blood draw exigent. It didn’t matter that the state charged him with the assault two months … Continue reading

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OR: Lifting jail curtain to see def in jail bathroom was not violation of State Const. or 4A

Partially lifting a curtain in jail to observe defendant in the bathroom was not a violation of his reasonable expectation of privacy under the State Constitution nor the Fourth Amendment. State v. Taplin, 311 Or. App. 542, 2021 Ore. App. … Continue reading

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LA5: Use of a flashlight on a car is still a plain view

Using a flashlight to look in a car was still a valid plain view. State v. Williams, 2021 La. App. LEXIS 767 (La. App. 5 Cir. May 13, 2021). Where the alleged OWI offender was incapacitated, Mitchell applies to his … Continue reading

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IL: ER blood draw was private search, and results were obtainable by process

Defendant’s ER blood draw after he was admitted for an accident was by a private actor, and the results are obtainable by the state and admissible. People v. Mueller, 2021 IL App (2d) 190868, 2021 Ill. App. LEXIS 227 (May … Continue reading

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WI: Burning mj in a house is exigency of evidence being destroyed by burning

The smell of burning marijuana is exigent circumstances because the contraband is being destroyed by burning. State v. B.W.R., 2021 Wisc. App. LEXIS 201 (Apr. 28, 2021) (unpublished). Under Birchfield, “An increased penalty for the warrantless blood draw refusal revocation … Continue reading

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OH2: SW for BAC executed in 5 hrs was “as soon as possible”

The search warrant for a blood draw said it had to be within 3 hours [a statutory artifact] and as soon as possible, but it took 5. The trial court found it was executed as soon as possible, and that’s … Continue reading

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IL: CSLI 11 years before Carpenter obtained in good faith

CSLI data obtained 11 years before Carpenter was obtained in good faith at the time and would not be suppressed. People v. Potts, 2021 IL App (1st) 161219, 2021 Ill. App. LEXIS 166 (Mar. 31, 2021). Defense counsel was not … Continue reading

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MI: No RS for PBT; nothing about def’s demeanor or appearance suggested he was under the influence

Nothing about defendant’s appearance or demeanor, other than bloodshot eyes, suggested he was under the influence. Administration of a PBT lacked reasonable suspicion. People v. Olson, 2021 Mich. App. LEXIS 1927 (Mar. 25, 2021):

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TX5: SW to seize blood for BAC also allows analysis

Texas already settled the issue that a search warrant to take blood implicitly includes the ability to test it. State v. Armstrong, 2021 Tex. App. LEXIS 2162 (Tex. App. – Dallas Mar. 22, 2021).* The stop was reasonably extended because … Continue reading

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TX13: State showed exigency for BAC without SW because it would have taken one of two officers off-duty

The state showed exigency in not getting a search warrant for defendant’s BAC after a serious car crash left him unconscious. It would have taken hours to get the warrant back then [2013] and it would have taken one of … Continue reading

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HI: No PC shown for blood search warrant; no alcohol smell and disorientation was likely from head trauma

The state did not attempt to exhaust any possibilities that defendant’s disorientation wasn’t caused by likely head trauma because there was no probable cause otherwise that defendant had consumed alcohol. The search warrant for blood should not have issued. State … Continue reading

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OH1: Blood draw from unconscious driver is by consent and reasonable

“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).* 2255 petitioner’s Fourth Amendment … Continue reading

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CO: Forced blood test unreasonable and suppressed; remedy is to prosecute for refusal

Under Colorado statute, anyone who drives a motor vehicle in the state is deemed to have consented to take a blood or breath test when requested by a law enforcement officer having probable cause to believe the driver is under … Continue reading

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OH7: Drug testing of drug def after conviction but before sentencing was reasonable

A court ordered drug test after conviction but before sentencing was reasonable because it factors into sentence. State v. Fisher, 2020-Ohio-6829, 2020 Ohio App. LEXIS 4672 (7th Dist. Nov. 7, 2020). Defendant, convicted of child pornography, had a release condition … Continue reading

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SD: Impending surgery exigency for warrantless blood draw

Defendant’s impending surgery was an exigent circumstance for a warrantless blood draw. “We have held that imminent medical care that threatens to destroy BAC evidence through blood transfusions, intravenous fluids, or natural dissipation over time may create exigent circumstances. … … Continue reading

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MA: Obtaining CSLI by SW in 2014 was independent source against 2010 obtaining by request (and Carpenter was 2018)

The state obtained defendant’s CSLI without a showing of probable cause in 2010. In 2014, they sought it again with a search warrant. Carpenter came in 2018. The independent source doctrine applied in the 2014 search, and defense counsel wasn’t … Continue reading

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KS: GFE applies to blood draw before court held it unconstitutional

“Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of this case, the good-faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood … Continue reading

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