Tuesday, August 30, 2011

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."
In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.
The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

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