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Every so often, the NJC conducts a needs assessment of its learners. This year, we are focusing on judges who hear traffic cases, impaired driving in particular. If you have about 10 minutes, we ask that you complete this short, completely anonymous survey to let us know which topics you’d like to learn more about. We ask that you complete the survey by May 31, 2021. Please click here to take the survey.

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Search Warrants for Blood Tests

by Hon. Earl G Penrod, Senior Judge
Indiana Judicial Outreach Liaison
Judge-in-Residence, National Judicial College

In the case of Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court of the United States held that the dissipation of alcohol is not a sufficient exigent circumstance by itself to justify a warrantless, non-consensual blood test of a suspected impaired driver.  As a result, standard impaired driving investigations require a search warrant to conduct a blood test if the driver does not consent to a test.  In Birchfield v. North Dakota, 579 U.S.____  (2016), the Supreme Court held that a warrantless breath test may be conducted as a ‘search incident to arrest’ but the more intrusive blood test requires a search warrant, if consent is not given.  
Further, because breath tests do not show the presence of drugs other than alcohol, blood tests are essential in investigating the ever-increasing crime of drug-impaired driving.  Caselaw makes it clear that if a defendant does not consent to a blood test, a warrant must be obtained, meaning impaired driving investigations now require more search warrants than in the past. 
Obtaining a search warrant can be a time consuming and cumbersome process that requires cooperation and coordination of a number of criminal justice stakeholders.  As was argued by the State of Missouri in McNeely, time is of the essence in impaired driving investigations and the inevitable delays in procuring a warrant will result in the loss of evidence.  In rejecting the per se warrant exception for blood testing in drunk-driving cases, the Supreme Court noted that there have been many advances in processing warrant applications and while technological innovations will not eliminate all delay, streamlined approaches would help resolve the problem.
In spite of the innovations and advances noted in the McNeely case, a number of jurisdictions still do not have an efficient warrant process for impaired driving investigations.  In an effort to address the issue, the National Highway Traffic Administration has released a 62-page publication entitled:
“Practices for Implementing Expedited Search Warrant Programs for Obtaining Evidence from Impaired Drivers.”
The publication, released in April of this year, explains how a jurisdiction may develop an expedited warrant procedure, but also sets forth the advantages of such an approach to the criminal justice system. Although considerable focus is given to how an expedited warrant process addresses law enforcement interests in reducing delay, it should be noted that defendants also benefit by receiving the Fourth Amendment protection of a neutral and detached judicial officer determining the validity of the requested search.
The publication is an excellent guide on why and how to develop a comprehensive, system-wide impaired driving warrant approach, but it is also worthwhile for individual judges who seek practical pointers on meeting the responsibilities of processing search warrant requests for blood tests.

April 2021 Opinions of Note

Linking drugs found on driver to impairment. In this case from Massachusetts, at issue was whether the Commonwealth established that driver met the element of driving under the influence of a narcotic or stimulant drug as required under the impaired driving statute. Here, a police officer observed a hit-and-run crash by driver. The officer, during a pat-frisk, recovered a prescription bottle containing methamphetamine, fentanyl, and clonazepam. The offer engaged in field sobriety testing activities. At trial, the officer testified about what was found and how driver behaved during the exercises. However, the court found that the Commonwealth did not meet their burden because they did not offer evidence that driver had any of the found substances in his system, nor did they tie the found drugs to their impairing effects. As such, no evidence was presented that tied found drugs to their consumption and their effects. The conviction of drug-impaired driving was set aside. Commonwealth v. Sprowl, 99 Mass.App.Ct. 1118 Unpublished Disposition (Massachusetts).
Reasonable suspicion to stop based on suspicious person description. Here, driver was stopped because he met the description (personal appearance and car type) of a reported suspicious person. This stop formed the basis for an appeal from a conviction of driving under the influence of drugs, and whether the stop was justified, and whether the subsequent evidence should be suppressed (fruit of the poison tree). On appeal, the court noted that based on the totality of circumstances, the stop was justified (driver met description and was stopped near where the reports were made). The case provides a tidy analysis of how events that unfold after a legal stop can form the basis for an impaired driving conviction. State v. Halverson, 2021 WL 1604697 (Westlaw unpublished opinion).
Jury instructions driver’s refusal to submit to a blood test. This case is notable because in North Carolina, evidence of refusal to submit to a chemical analysis or field sobriety test at the request of an officer is admissible when that person is charged with an implied-consent offense (here, impaired driving). Driver must not have been aware of this statute when she stated the trial court erred in its jury instructions on her refusal to submit to a blood test. State v. Hernandez, 2021-NCCOA-166 Unpublished Disposition (North Carolina).

Regional Judicial Outreach Liaison (JOL) Openings

The ABA announced openings for Judicial Outreach Liaisons (JOL) Positions:

Region 1: Maine, Massachusetts, New Hampshire, Rhode Island, Vermont

Region 2: Connecticut, New Jersey, New York, Pennsylvania, Puerto Rico, and the US Virgin Islands

The Judicial Outreach Liaison (JOL) program was established to produce peer-to -peer judicial education for judges.The Regional JOLs are teachers, writers, and impartial consultants who share educational resources on informed sentencing, monitoring and interventions for impaired drivers with the judges of their Region.

For additional information, please contact Kennedy Green at

Upcoming Impaired Driving Courses (FREE!)

May 24-26, Online. Managing Cases Involving Commercial Drivers Licenses. Does the impaired driving plea bargain in front of you involve a driver who holds a CDL? Judges have an ethical responsibility to ensure they apply both state and federal law to these cases. Learn more with this three-day online course.

May 24-27, Online. Impaired Driving Essentials. This course provides you with an overview of sentencing practices and evidence-based options for impaired driving traffic offenses including those committed by younger drivers, older drivers, and hardcore DUI defendants, with a special emphasis on drug-impaired driving.

May 25, Online. Marijuana Impaired Driving Workshop. Unlike alcohol-impaired driving, marijuana-impaired driving has no bright line test for impairment. These cases require a judge to utilize a variety of judicial tools to effectively adjudicate them.
For news items, technical assistance requests, or other inquiries, please contact NJC's Traffic Resource Center on Drug-Impared Driving at

The National Judicial College is an Equal Opportunity/Affirmative Action, ADA organization, and admits participants of any age, race, color, religion, gender, gender identity, sexual orientation, and national or ethnic origin. © NJC 2019. All rights reserved.

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