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Charles G. COPELIN, Appellant,
v.
STATE of Alaska, Appellee.
Joe Ray MILLER, Appellant,
v.
ANCHORAGE, a Municipal Corporation, Appellee.

Nos. 5453, 5708.

Supreme Court of Alaska.

February 18, 1983.

1207*1207 Daniel Westerburg and Stanley Lewis, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, for appellant Copelin.

1208*1208 Jeffrey M. Feldman and James D. Gilmore, Gilmore and Feldman, Anchorage, for appellant Miller.

Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee State of Alaska.

David G. Berry, Municipal Prosecutor, Theodore D. Berns, Municipal Atty., Anchorage, for appellee Anchorage.

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS  dui lawyer and COMPTON, JJ.

OPINION

CONNOR, Justice.

In separate cases, Charles G. Copelin and Joe Ray Miller were  dui lawyer convicted of violating state and municipal drunken driving prohibitions. These convictions were upheld by the Court of Appeals.[1] We granted Copelin and Miller's petitions for hearing[2] in order to review whether the police may refuse the request of one who is arrested for driving while intoxicated to consult an attorney before deciding whether to submit to a breathalyzer test. A second issue, raised only in the case of Copelin, is whether a judge dui lawyer  may consider one's refusals to submit to such breathalyzer tests in sentencing proceedings.

We have concluded that when a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, AS 12.25.150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test. Where, as here, the arrestee is denied that opportunity, subsequently obtained evidence must be suppressed, and we accordingly  dui lawyer reverse these two cases.

FACTS

On September 16, 1979, Charles G. Copelin was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of state law. AS 28.35.030.[3]On April 16, 1979, Joe Ray Miller was arrested for operating a motor vehicle while his blood alcohol level exceeded .10 percent, in violation of a municipal ordinance 1209*1209Anchorage,  dui lawyer Alaska Municipal Code § 9.28.030 (1978).[4]

Following their traffic stops both Copelin and Miller were taken into custody and transported to law enforcement headquarters. Both Copelin and Miller were asked to submit to breathalyzer examinations and both responded to this request by expressing a desire to contact their attorneys first. Permission was denied. Both Copelin and Miller were told that they did dui lawyer not have the right to contact counsel until after they decided whether to take the test.[5]

Copelin did not take the breathalyzer test, did not perform requested field sobriety tests, and was videotaped throughout this refusal. Miller did take the breathalyzer test. Following their respective arraignments, Copelin moved to suppress the videotape of his actions and Miller moved to suppress the results of his breathalyzer test. These motions produced conflicting results in the district and superior courts and eventually made their way to the Court of Appeals.[6] The Court of Appeals affirmed the convictions of both dui lawyer  Copelin and Miller, holding that there was no error in the failure to suppress Copelin's videotape, no error in the failure to suppress Miller's breathalyzer test results, and no error in considering Copelin's past refusals to submit to breathalyzer tests in imposing sentence.

STATUTORY RIGHT

Copelin and Miller contend that they had a statutory right of access to  dui lawyer counsel which was violated by law enforcement officers' denial of their requests to speak with their attorneys. We agree.

1210*1210 AS 12.25.150 sets forth the rights of a prisoner after arrest.  dui lawyer Subsection (b) of that statute provides:

"Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall,  dui lawyer at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested." (Emphasis added).

The language of this statute is clear and unambiguous and mandates that every arrestee have the right to telephone or otherwise communicate with his attorney immediately.[7]This mandate was viewed by the legislature dui lawyer  as sufficiently important to warrant criminal and civil penalties for its willful or negligent violations.[8]

Relying on this court's interpretation of AS 12.25.150(b) in Eben v.  dui lawyer State, 599 P.2d 700 (Alaska 1979), the Court of Appeals found Copelin and Miller's invocation of that statute to be misplaced.[9] In Eben, we stated:

"[AS 12.25.150(b)] is not concerned with implementing an arrestee's  dui lawyer right to consult privately with his or her attorney, but with right to contact an attorney, relative or friend for the purpose of arranging bail or legal representation."

Id. at 710 n. 27.

However, there is nothing in the language of the statute which suggests  dui lawyer any limitations on the type or nature of communication which an arrestee may have with his attorney following arrest. In fact, in Eben, this court noted:

"[W]e caution that to the extent deemed appropriate in light of the  dui lawyer circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend."

Id. By recommending that private communication be allowed  dui lawyer where feasible, this court implicitly recognized that the opportunity to consult and communicate with an attorney and to receive legal advice was also a contemplated purpose of the statute.[10] To the extent that language in Eben indicates that the sole purpose of AS 12.25.150(b) is to aid an arrestee in the attainment of bail or legal representation, it is 1211*1211 disavowed. We hold that one intended purpose of AS 12.25.150(b) is to provide an arrestee with the opportunity to obtain legal advice.

We now must determine what the legislature intended when it gave an arrestee "the right to telephone or otherwise communicate with his attorney" "immediately after an arrest" in the context of a driving while dui lawyer  under the influence (DWI) arrest. The state and the municipality argue the right to consult an attorney "immediately" means after any sobriety tests are administered. They argue that since the evidence which these tests are designed to detect dissipates quickly, it would be impracticable, unreasonable, and contrary to the intent of the implied consent statute[11] to allow prior consultation. We disagree. "Immediately" means just that.  dui lawyer This "destruction of evidence" argument does not preclude the limited statutory right of access to counsel that Copelin and Miller are seeking.

In Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979),  dui lawyer we weighed the benefits of assistance of counsel against the possibility that requiring such assistance following an arrest for driving while intoxicated and prior to field sobriety tests would interfere with the acquisition of relevant evidence.[12] Id. at 1192. We are mindful of the important state interest in obtaining reliable evidence of an arrestee's blood alcohol level and the fact that alcohol concentration will dissipate with the passage of time.

However, the proper procedure by which breathalyzer examinations dui lawyer  are to be given in Alaska as set forth in 7 Alaska Admin. Code § 30.020 requires that the test subject be observed by the test operator for at least  dui lawyer 15 minutes immediately prior to testing to assure that the subject does not vomit or place anything in his mouth which might invalidate the test result. Since a minimum of a 15 minute wait is necessary before administering the breathalyzer test, no additional delay is incurred by acceding to a  dui lawyer request to contact an attorney during that time.[13]

The statutory right to contact and consult with counsel is not an dui lawyer  absolute one (which might involve a delay long enough 1212*1212 to impair testing results), but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes.[14]

The municipality argues that it is not clear whether Miller would have been able to contact his attorney within any specific time period. The state points out that Alaska does not by statute establish a period of time during which the breathalyzer must be administered to guide the court in prescribing a time limit. Both of these observations are valid. Reasonableness dui lawyer  dui lawyer  will depend on the circumstances of each case, such as the amount of time between the stop and the transportation to the station, when the request is made, and how much time is needed to set up the test. If the attorney cannot be contacted within a reasonable time the suspect must decide without the advice of counsel, whether to take the breathalyzer test.[15] As both Copelin and Miller were denied any opportunity whatsoever to contact their attorneys, they were denied their statutory rights.

The state and the municipality next contend that since there is "no right to refuse" to take the breathalyzer tests, any right to consult an attorney would be meaningless to the accused. In Graham v. State, 633 P.2d 211 (Alaska 1981), we stated:

"Under Alaska law, as in most other jurisdictions, one arrested for  dui lawyer  dui lawyer operating a motor vehicle while under the influence of intoxicating liquor has no constitutional or statutory right to refuse to submit to a breathalyzer test.Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979); Wirz v. State, 577 P.2d 227, 230 (Alaska 1978). Nor does he or she have the right to have counsel present before being required to take the test. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). Since there is no right of refusal,  dui lawyer we have also held that it is not necessary to inform the person arrested that he or she can refuse the test, in order to render the test results admissible.Palmer v. State, 604 P.2d 1110."

Id. at 214 (footnote omitted).

The prosecuting authorities in the present case have seized upon dui lawyer  the language that there is "no right to refuse" to take the breathalyzer test to argue that there is no issue as to which the advice of an attorney might help to preserve any of the accused's rights. The state goes a step further, insisting that it cannot conceive of any ethical or lawful assistance which a criminal defense attorney could render for a client arrested for drunk driving who is asked to take a breathalyzer test.

These arguments misperceive what is meant by "no right to refuse." There may be no right to refuse a test for determining blood alcohol level in the constitutional sense. SeeSchmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). And, there may be no right to refuse in the statutory sense, in that the arrestee will suffer adverse legal consequences in the form of suspension or revocation of his driver's license. AS 28.35.032. However, the statute does not deprive an accused of the power to refuse to submit to the test: if the suspect refuses to submit to a breath test, nochemical analysis of his breath, blood, or urine may be given.  dui lawyer Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) (interpreting AS 28.35.032).[16]

1213*1213 Therefore, the law has deliberately given the arrested person a choice between two very different alternatives and potential sanctions. The arrested driver must weigh and evaluate a number of different factors. dui lawyer  He may only be vaguely aware of some of these and need not be informed of all of them by the police.[17]

The decision as to whether to comply with an arresting officer's  dui lawyer request to take a sobriety test is not a simple one. Clearly, an attorney's advice at this stage would not only be ethical and lawful, but helpful. The choice which an individual driver must make is a meaningful and binding one that will affect him in subsequent proceedings. Where the important chemical testing procedures are not unreasonably delayed, the driver should, upon request, have the benefit of the advice of his own counsel, with whom he has a statutory right to communicate. Given the conclusive nature of the evidence which the accused is asked to provide, this decisive point may be the only occasion when this statutory right is of any use.

The prosecuting authorities finally argue that to apply the statutory right to communicate1214*1214 with one's attorney at the pre-decision stage would thwart the legislative intent underlying the implied consent statute. The courts in a growing number of jurisdictions recognize at least a limited right to communicate with counsel prior to making the decision to submit to chemical testing. While many of the cases cited in the briefs can be distinguished on significant statutory differences, see Wirz v. State, 577 P.2d 227, 230 n. 12 (Alaska 1978), some cases have found a predecision right to communicate with counsel based upon state statutes similar to AS dui lawyer  12.25.150(b) or court rules similar to Criminal Rule 5(b). These cases have found no inconsistency between these statutes and court rules and implied consent statutes.[18] The prosecuting authorities have failed to cite and we have failed to find any case that denies a limited statutory right to counse dui lawyer l if a statute similar to AS 12.25.150(b) or Criminal Rule 5(b) exists.

Exclusionary Rule

The question remains as to whether denial of a statutory right dui lawyer  to counsel requires the suppression of subsequently obtained evidence. Copelin and Miller argue that invocation of the exclusionary rule is appropriate for violations of AS 12.25.150(b) even though there is no provision for doing so in the statute and the statute itself provides for civil and criminal sanctions. The state argues that the exclusionary rule is reserved for constitutional violations, and that since this remedy was not included in the statute, it was not thought by the legislature to be appropriate.

In State v. Sundberg, 611 P.2d 44 (Alaska 1980), we elected not  dui lawyer to apply the exclusionary rule to a violation of AS 12.25.080 (forcible arrest statute). While noting that the primary purpose of the exclusionary rule is deterrence of future illegal conduct by police, we also concluded that other deterrents might render adoption of an exclusionary rule unnecessary, given society's interests in crime prevention and the apprehension and trial of offenders. Id. at 52. Given those considerations and the absence of a history of excessive force in arrests by police officers, we concluded that the imposition of the exclusionary rule for violations of the forcible arrest statute would at best achieve only a marginal deterrent effect.

Under a Sundberg analysis we reach the opposite conclusion  dui lawyer with regard to AS 12.25.150(b). In Sundberg we distinguished the forcible arrest situation from a "conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct." Id. The breathalyzer test, in contrast to the hot pursuit of fleeing felons, provides time for reflection before action and, like a traditional search, consists of intentional efforts by the police to obtain evidence. Given these distinguishing factors, we believe that application of the exclusionary rule will serve to deter future illegal police conduct.

Additionally, a violation in this type of case, as opposed to a violation of the forcible arrest statute, has an effect on the defendant's ability to present a defense at 1215*1215 trial. Here, the defendants were deprived of their statutory right to counsel, and evidence gathered after the right to counsel has been denied should be excluded from trial. SeeEscobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In deciding to apply the exclusionary rule in a situation similar to that presented here,  dui lawyer the Minnesota Supreme Court stated:

"[W]hat sanctions should attend violation of the right? While we note that § 481.10 contains civil and criminal penalties against the police officer, these alone are not sufficient to fully vindicate the driver's right. When the driver has been coerced into making a complicated decision without the assistance of counsel required by this opinion, he should not be bound by that decision, since he might have otherwise made it differently. Therefore, if such a driver elected to take the test, the results should be suppressed. If he elected not to take the test, he should not be deemed to have unreasonably refused it and his driver's license should not be revoked."

Prideaux v. State Dept. of Public Safety, 247 N.W.2d at 395.

Application of the exclusionary rule to Miller requires that the breathalyzer test results be suppressed. Copelin, however, presents a more difficult case. The State argues that the evidence against Copelin was "de facto suppressed" since Copelin refused to take the test, and the portion of the videotape having to do with his refusal was not heard by the jury.  dui lawyer However, we conclude that the videotape evidence of his actions after he requested to speak with his attorney should have been suppressed entirely. Had he been allowed to consult with an attorney he may have elected to take the breathalyzer, and gained exculpatory evidence. Furthermore, had he been granted the right to consult with his attorney, it is likely that the videotaped events (his growing anger at not being able to talk with his attorney and his consequent verbal abuse of the police officer) would never have occurred.

In conclusion, we find that when a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test. If the suspect is denied that opportunity, subsequent evidence, whether in the form of the test results or the refusal to submit to it, shall be inadmissible at a later criminal trial. This statutory right is limited, however, to circumstances when it will not unreasonably hinder the police investigation. If the person arrested is unable to reach an attorney by telephone or otherwise within a reasonable time, the accused may be required to elect between taking the test and refusing it without the aid of counsel.  dui lawyer As both Copelin and Miller were denied the opportunity to contact counsel, these cases must be REVERSED.[19]

COMPTON, Justice, dissenting in part.

I disagree with the court's holding that evidence obtained dui lawyer  subsequent to a refusal to allow an OMVI suspect to contact counsel in violation of AS 12.25.150(b) must be excluded. In support of this result, the court relies on State v. Sundberg, 611 P.2d 44 (Alaska 1980). I believe that Sundberg and other Alaska cases discussing the exclusionary rule support the opposite conclusion.

Determining whether an exclusionary remedy is appropriate requires a balancing of the purpose behind excluding illegally obtained evidence with the interest in admitting reliable evidence in those proceedings. State v. Sears, 553 P.2d 907, 912 (Alaska 1976)(applicability of exclusionary remedy in probation revocation proceedings). The primary purpose of the exclusionary 1216*1216 rule is deterrence of future illegal conduct by the police. Sundberg, 611 P.2d at 51 (footnote omitted). The rationale of this  dui lawyer rule is that if the police are aware that the fruits of their illegal conduct will be excluded from trial, then the police will cease such conduct.

After noting the existence of potential deterrents in criminal sanctions,  dui lawyer police departmental proceedings, civil rights actions, and tort suits, we concluded in Sundbergthat an exclusionary rule would not provide significant additional deterrence to excessive force arrests. Id. at 51-52. In the present case, there are additional reasons why an exclusionary remedy is not necessary for violations of AS 12.25.150(b).

First, unlike the situation in Sundberg, where there were no built-in sanctions  dui lawyer for violations of the forcible arrest statute, AS 12.25.150 clearly and expressly sets forth both criminal and civil sanctions against police for the deprivation of an arrestee's rights under the statute. AS 12.25.150(c) provides:

It shall be unlawful for any officer having custody of a person so arrested to wilfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction,  dui lawyer the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.

AS 12.25.150(d) provides:

In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party agrieved the sum of $500, recoverable in a court of competent jurisdiction.

Thus, the legislature created a statutory right to "telephone or otherwise communicate" with counsel immediately after arrest, AS 12.25.150(b), and provided deterrence for violations of this right by authorizing criminal prosecution of a police officer for willfully refusing or neglecting to allow an arrestee to exercise this right. An officer convicted under this statute has  dui lawyer a misdemeanor on his record, faces a fine up to $100 and/or imprisonment up to thirty days, and faces a civil judgment of $500 payable to the aggrieved arrestee.

Second, unlike the potential deterrents discussed in Sundberg, the criminal sanction would simply require the arrestee to make a criminal complaint. The state would be charged with the good faith obligation to investigate and, dui lawyer  if warranted, to prosecute and bear the cost of such prosecution; a judge would determine the degree of punishment rather than an interested police department official; there would not be the time delays associated with civil suits. I believe that a police officer would more likely be deterred by the potential criminal record and jail time than by application of the judicially created exclusionary rule, which simply means that one of the officer's many arrests failed to culminate in a conviction. Therefore, it is clear that the minimal, if any, deterrent effect that an exclusionary remedy would have considering the civil and criminal deterrents already built into AS 12.25.150 is far outweighed by the significant interest in admitting probative evidence gained from a breathalyzer test.

Sundberg implies an additional reason for not imposing an exclusionary  dui lawyer remedy for violations of the excessive force statute, namely, when the officers are acting in good faith:

[W]e are of the view that imposition of the exclusionary rule on the particular facts of the case at bar was clearly unwarranted ... [because] the officer ... was proceeding in accordance with existing departmental directives, and the degree of force permissible under the necessary and proper phraseology of AS 12.25.080 had not been previously construed by this court.

611 P.2d at 52 (footnote omitted).

In this case, the police quite likely believed in good faith that Miller and Copelin had no right to consult counsel before taking the breathalyzer. Even the court of appeals, relying on Eben v. State, 599 P.2d 1217*1217 700, 710 n. 27 (Alaska 1979), understood AS 12.25.150 to be merely a bail statute and therefore believed it was not applicable in the context of an arrest followed by a breathalyzer test administration. Copelin v. State, 635 P.2d 492, 493-94 (Alaska App. 1981). Thus, this is not a situation where the police acted in blatant disregard of an individual's constitutional and statutory rights; rather, they were engaged in conduct that they reasonably believed was legal.  dui lawyer Only after this decision is published and the police become aware that an individual does have a limited statutory right to consult an attorney prior to taking a breathalyzer test does the deterrence rationale become operative.

In short, application of the exclusionary rule is intended to deter future illegal conduct. This deterrence is amply provided by the decision in this case, which makes it clear for the first time that the conduct is illegal, and by the criminal sanctions imposed by the legislature for officers engaging in the illegal conduct.

The court's holding ignores these two significant factors of Sundberg militating against applying an exclusionary remedy and attempts to distinguish this case from Sundberg on the ground that the breathalyzer situation is more like a "`conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of  dui lawyer criminal conduct.'" 659 P.2d at 1214 (quoting Sundberg,611 P.2d at 52). Given that administration of a breathalyzer test "provides time for reflection before action" and that "like a traditional search, [it] consists of intentional efforts by the police to obtain evidence," id. the court opinion concludes that an exclusionary remedy is needed as an additional deterrent. It neglects to state, however, that Sundberg distinguished conventional search situations on the ground that "the fleeing offender — arrest situation ... often requires law enforcement officials to make rapid decisions within the  dui lawyer framework of fluid and confused factual situations which do not permit significant reflection, the obtaining of legal advice, or the intervention of, and decision from, a neutral and detached judicial officer." 611 P.2d at 52. I believe that the breathalyzer situation is in reality somewhere between the "traditional search" situation and the "hot pursuit" circumstance. Although the factual situation is not likely to be as "fluid and confused" as hot pursuit, the police officer is nonetheless going to have to make an educated guess, without help from counsel, whether a "reasonable time" has passed so that he may put the suspect to his choice. At this point, with no evidence to the contrary, I think the court must assume that such a decision will be made in good faith by law enforcement personnel.

In other words, application of the exclusionary rule at this stage is premature. dui lawyer  As we stated in Sundberg:

[W]e think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.

Id. (footnote omitted). Cf. Elson v. State, 659 P.2d 1195, 1205 n. 31 (Alaska 1983) (same cautionary instruction given after permitting illegally seized evidence to be used in sentencing proceedings). Similarly, in the event that the clearly delineated statutory right to consult with counsel is violated in the future and that the civil and criminal sanctions are shown not to deter  dui lawyer these violations, then this court should not hesitate to apply the exclusionary rule.

I join the court's disposition of all other issues in the petition for hearing.

BURKE, Chief Justice, dissenting in part.

I share the views expressed by my dissenting colleague, Justice Compton. At this point in time, we have no reason to believe that the penalty provisions of AS 12.25.150 will not be vigorously enforced, 1218*1218 now that the requirements of the statute have been made clear. Nor is there reason to believe that those provisions will not effectively deter future violations of the statute. If and when it can be demonstrated that the police and the prosecuting authorities are shirking their responsibility, or that the deterrent effect of the penalty provisions is illusory, we should not hesitate to apply the exclusionary rule. In my judgment, however, the court's application  dui lawyer of the rule at this time is unwarranted.

[1] Copelin v. State, 635 P.2d 492 (Alaska App. 1981); Miller v. Anchorage, Summ. Disp. No. 54 (Alaska App., November 5, 1981).

[2] AS 22.07.030 and Appellate Rule 302(a)(1).

[3] Former AS 28.35.030, under which Copelin was charged, reads as follows:

"Driving while under the influence of intoxicating liquor or drugs. (a) A person who, while under the influence of intoxicating liquor, depressant, hallucinogenic or stimulant drugs or narcotic drugs as defined in AS 17.10.230(13) and AS 17.12.150(3) operates or drives an automobile, motorcycle or other motor vehicle in the state, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both and the court shall impose a minimum sentence of  dui lawyer imprisonment of not less than three consecutive days. Upon a subsequent conviction within five years after a conviction under this section, the court shall impose a minimum sentence of imprisonment of not less than 10 consecutive days. The execution of sentence may not be suspended nor may probation or parole be granted until the minimum imprisonment provided in this section has been served, nor may imposition of sentence be suspended, except upon the condition that the defendant be imprisoned for no less than the minimum period provided in this section, nor may the punishment provided for in this section be reduced under AS 11.05.150. In addition, his operator's license shall be revoked in accordance with AS 28.15.210(c). In addition a person convicted under this statute shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation which the court, after consideration of any information compiled under (b) of this section, finds appropriate.

(b) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under (a) of this section shall supply the Alaska court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under (a) of this section, or by an officer of the court in preparing a presentence report for dui lawyer  the use of the court in sentencing a person convicted under (a) of this section."

[4] Former ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.030 (1978), under which Miller was charged, reads as follows:

"Driving with 0.10% or greater blood alcohol.

A. It shall be unlawful for any person to operate, drive or be in actual physical control of an automobile, motorcycle or other motor vehicle in the municipality at such time as there is 0.10% or more by weight of  dui lawyer alcohol in his blood, or 100 milligrams or more of alcohol per 100 milliliters of his blood, or 0.10 grams or more of alcohol per 210 liters of his breath.

B. To be considered valid under the provisions of this section, a chemical analysis of the person's breath shall have been performed according to methods approved by the Alaska Department of Health and  dui lawyer Social Services. If it is established at trial that a chemical analysis of breath was performed according to techniques, methods and standards of training approved by the Alaska Department of Health and Social Services, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary."

[5] Copelin was not permitted to contact anyone until nearly seven hours after his arrest. Miller was told, "You can call an attorney after you blow in the Breathalyzer."

[6] COPELIN

On October 29, 1979, Copelin's motion was partially granted as the district court ordered some sections of the audio portion of the videotape turned off during playback. Interrogation by the officer in violation of dui lawyer  Miranda and Copelin's "refusal" to take the breath test were not heard by the jury. The jury did see a very angry, hostile, and frustrated Copelin as he repeatedly asked to speak with his attorney and the officer repeatedly told him he could not. On November 15, 1979, the jury returned a verdict of guilty. After considering Copelin's refusals to submit to breathalyzer examinations on three separate occasions (including the present one) Copelin was sentenced by the district court. Copelin appealed to the superior court where the district court's judgment and sentence were affirmed on June 26, 1980.  dui lawyer An appeal was filed in this court, and the matter was transferred to the Court of Appeals.

MILLER

On June 21, 1979, Miller entered a plea of nolo contendere to the .10 charge of the complaint, preserving the right to litigate and, if necessary, appeal, the issues raised in his pretrial motion to suppress pursuant to  dui lawyer Cooksey v. State, 524 P.2d 1251 (Alaska 1974). On August 13, 1979, the district court granted Miller's motion to suppress, set aside his plea, and dismissed the case. The Municipality of Anchorage then petitioned the superior court to review the district court's order granting the motion to suppress. On November 28, 1979, the superior court reversed the order of the district court, and remanded the case for the imposition of sentence. On November 6, 1980, the nolo contendere plea was reinstated, a judgment of conviction was entered, and Miller was sentenced. Miller then appealed to the dui lawyer  superior court. Because the issue had already been considered by that court upon the Municipality's petition for review, further proceedings were transferred to the Court of Appeals.

[7] This statute is paralleled by Alaska Criminal Rule 5(b):

"Rights of Prisoner to Communicate with Attorney or Other Person. Immediately after his arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both his attorney and any relative or friend. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner,  dui lawyer shall have the right forthwith to visit the prisoner in private." (Emphasis added).

[8] AS 12.25.150 continues:

"(c) It shall be unlawful for any officer having custody of a person so dui lawyer  arrested to willfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.

(d) In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the dui lawyer  party aggrieved the sum of $500, recoverable in a court of competent jurisdiction."

[9] The defendant in Eben was arrested and booked on a double homicide charge. At the police station, after being advised of his rights, the defendant told police that he would sign the rights waiver form after he had telephoned his girlfriend. The officers remained in the room during the defendant's telephone conversation and heard the defendant utter incriminating statements. This court rejected the defendant's argument that statements made during the exercise of an arrestee's right under AS 12.25. dui lawyer 150(b) to "telephone or otherwise communicate" with counsel and friends, should be excluded as a matter of law.

[10] The ABA Standards Relating to Criminal Justice, the Defense Function § 2.1 provide:

"Every jurisdiction should guarantee by statute or rule of court the right of an accused person to prompt andeffective communication with a lawyer and should require that reasonable access to a telephone or other facilities dui lawyer  be provided for that purpose." (Emphasis added).

[11] The Alaska Implied Consent Statute provides in part:

"Sec. 28.35.031. Implied consent. A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of his breath for the purpose of determining  dui lawyer the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while under the influence of intoxicating liquor."

[12] Geber does not directly control this case. In Geber one of the defendants argued unsuccessfully that before requiring her to perform certain field sobriety tests, the police should have informed her that she had the  dui lawyer right to have an attorney present if she could obtain his presence within a reasonable period of time. While we held that the police have no duty to advise a suspect of any right to counsel, we did not hold that the police may refuse the specific requests to contact counsel that were made in the instant cases. Other courts have recognized that there is a vast difference between a flat refusal to afford access to counsel after it is requested and a failure to advise or warn a defendant of his rights. See, e.g., People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297 (N.Y. 1971). Secondly, while we held in Geber that there is no right to have an attorney present at the field sobriety tests, we did not hold that there is no right merely to contact or communicate with counsel before deciding whether or not to submit to such test. Other jurisdictions, while finding a dui lawyer  constitutional or statutory right to consult an attorney by phone, have held that the arrestee does not have the right to demand physical presence of the attorney before taking a breathalyzer test. Spradling v. Deimeke, 528 S.W.2d 759, 765 (Mo. 1975); Price v. North Carolina Dept. of Motor Vehicles, 36 N.C. App. 698, 245 S.E.2d 518, 521-22 (N.C. 1978);McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 803 (Ohio 1975). Geber dealt with neither the statutory right to counsel nor the administration of a breathalyzer test.

[13] While 15 minutes is the minimum period of delay, the arrestee will have a longer period of time in which to contact his attorney where the test operator is not yet ready to administer the test. Such a rule does not impose any greater delay in testing other than that which is inherent in the test administration process.

[14] The burden of proof is on the government to show that an  dui lawyer accused demanded an unreasonable amount of time and thereby interfered with the "prompt and purposeful investigation" of the case. Blue v. State, 558 P.2d 636, 642 (Alaska 1977).

[15] Although an arrestee may be without the advise of counsel, he is entitled to a warning by the police. The police are not required to inform the arrestee that he has the right to refuse; however, if he does refuse, he must be advised of the consequences flowing from his refusal and be permitted to reconsider his refusal in light of that information. Wirz v. State, 577 P.2d 227 (Alaska 1978).

[16] The legislature has recently amended AS 28.35 by adding a new section, AS 28.35.035. Under subsection (a) of this new section, an arrestee who causes death or physical injury to another person no longer has the ability to refuse chemical testing of his blood or breath. The tests may be administered without the consent of the arrestee. Subsection (b) of the new section provides that where the arrestee is unconscious or otherwise incapable of refusal, the implied consent of AS 28.35.031 remains operative, and the police may conduct chemical testing of breath or blood. Such an arrestee would have no effective choice to refuse testing.

The holding in this case, that an individual has the right to telephone an attorney prior to deciding whether to take the breathalyzer test, is restricted to those cases in which the arrestee, under AS 28.35, is still left with the choice of refusing to take the breathalyzer test.

[17] Among the possible ramifications under present law  dui lawyer (effective January 1, 1983):

A. If the driver refuses to take the breathalyzer test:

1. A chemical test cannot be given unless the arrest results from an accident that causes death or physical injury to another person. AS 28.35.035(a).

2. The driver's license or nonresident privilege to drive will be revoked or suspended for three (3) months, AS 28.35.032(b), if:

a. the arresting officer had reasonable grounds to believe the dui lawyer  driver had been operating a motor vehicle while under the influence; if

b. the driver refused to submit after being advised this would  dui lawyer result in suspension or revocation of his license; and if

c. the driver was fairly informed of the nature and accuracy of the test, the expertise of operator, etcetera.

3. If the driver who refuses has been convicted of driving while intoxicated or of refusal to submit to a breath test the suspension or revocation will be for one (1) year. AS 28.35.032(d).

4. Refusal to submit to the chemical test of breath is a class A  dui lawyer misdemeanor. AS 28.35.032(f). Conviction for refusal carries a minimum sentence of imprisonment of not less than 72 consecutive hours. And, upon a subsequent conviction within five years after such a conviction or of a conviction for driving while intoxicated in this or any other state, the minimum sentence is ten consecutive days unless the subsequent conviction is within one year of the previous conviction, in which case the minimum sentence is twenty consecutive days. In addition, a person convicted of this misdemeanor must enroll in a program of alcohol education or rehabilitation that the court finds appropriate. AS 28.35.032(g).

5. The driver may still be prosecuted for driving under the influence and convicted, despite his refusal to take the breathalyzer test. The driver's refusal to submit to the breathalyzer test, as well as any other field sobriety test,will be admissible evidence in a civil or criminal proceeding under the revised statute. AS 28.35.032(e).

6. Refusing to submit to a breathalyzer may hinder the state's case dui lawyer  against a driver, but it may also deprive the driver of exculpatory evidence.

7. A driver who receives a refusal suspension can obtain a limited license by instituting a separate civil action and demonstrating to the court requisite hardship. AS 28.35.032.

8. There may be serious collateral consequences to a suspension, involving one's driving record, insurance premiums and even employment.

B. If the driver takes the breathalyzer test:

1. Under ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.020 B.2 and the revised AS 28.35.030(2), a reading above.10 is conclusive proof of driving while intoxicated. On the other hand, a low breathalyzer reading dui lawyer  can establish innocence under AS 28.35.033(a)(1) and ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.023 A.1.

2. A person who submits to a breathalyzer test may have a qualified person of his own choosing administer a chemical test in addition to the chemical test administered at the direction of a law enforcement officer.  dui lawyer AS 28.35.033(e). There is no requirement that the driver be advised of this right. Palmer v. State, 604 P.2d 1106 (Alaska 1979).

[18] State v. Vietor, 261 N.W.2d 828, 830-31 (Iowa 1978) (Statute required peace officer to "permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of his or her family or an attorney of his or her choice."); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 391-94 (Minn. 1976) (Statute required officer to "admit any resident attorney retained by or on behalf of the person restrained, or whom he may desire to consult, to a private interview at the place of custody."); Gooch v. Spradling, 523 S.W.2d 861, 865-66 (Mo. App. 1975) (Statute and court rules provided the right "to consult  dui lawyer with counsel or other persons in his behalf at all times"); McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 802-03 (Ohio 1975) (Statute required that "[a]fter the arrest, detention, or any other taking into custody of a person ... such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state ..."); State v. Fitzsimmons, 94 Wash.2d 858, 620 P.2d 999 (Wash. 1980), aff'g, 93 Wash.2d 436, 610 P.2d 893 (Wash. 1980) after vacation of judgment and remand in 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240 (1980). (Court rule required that "[a]t the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone ... dui lawyer  and any other means necessary to place him in communication with a lawyer").

[19] As we have concluded that Copelin and Miller's statutory rights  dui lawyer were violated and that evidence obtained subsequent to these violations must be suppressed, we need not consider the argument that an accused has a constitutional right to consult with counsel prior to deciding whether to submit to intoxication tests.

Our decision to reverse also eliminates the need to address Copelin's argument that the district court erred in imposing his sentence.





​STATE of Alaska, Appellant,
v.
Brian SIMPSON, Appellee.

No. A-8028.

Court of Appeals of Alaska.

August 16, 2002.

Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.

Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, dui lawyer  Public Defender, Anchorage, for Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

166*166 OPINION

MANNHEIMER, Judge.

Brian Simpson is charged with driving while intoxicated in Anchorage in September 2000. Because Simpson has two prior convictions for "driving under the influence" in Montana, the State indicted him for felony DWI under AS 28.35.030(n) (third offense within five years).[1] But Simpson questions whether his Montana convictions can properly be used as dui lawyer  predicate convictions to support the Alaska felony DWI charge.

Under AS 28.35.030(o)(4), a conviction from another state can serve as a predicate for a felony DWI conviction in Alaska if the other state's law requires proof of elements that are "similar" to the elements of DWI under Alaska law. Thus, to resolve this appeal, we must compare the elements of Alaska's DWI statute, AS 28.35.030(a), to the elements of Montana dui lawyer  Statute 61-8-401 ("driving under the influence of alcohol or drugs") and decide whether they are similar.

Simpson contends that Alaska law offers a potential defense to a driver who is involuntarily intoxicated, but Montana law does not. Simpson further contends that the Montana statute differs from Alaska law because it punishes even those defendants who perform no voluntary act. The superior court agreed with Simpson and, for that reason, concluded that Simpson's Montana convictions for driving under the influence did not qualify as prior convictions under AS 28.35.030(o)(4). The court therefore dismissed  dui lawyer Simpson's indictment for felony DWI.

For the reasons explained here, we have significant doubts as to whether Simpson's interpretations of Montana law are correct. But more important, AS 28.35.030(o)(4) does not require that an out-of-state statute be identical to Alaska's DWI law—only that it be "similar". Even assuming that Alaska and Montana differ in their treatment of involuntary intoxication or the requirement of a voluntary act, DWI prosecutions involving these situations—i.e., situations where the driver has performed no voluntary act, or dui lawyer  where the driver is involuntarily intoxicated—are exceedingly rare. They are so rare that, even with these arguable differences, we conclude that Montana's statute is "similar" to Alaska's. We therefore hold that Simpson's Montana convictions for driving under the influence qualify as prior convictions under AS 28.35.030(o)(4).

The wording of the two statutes

Alaska's DWI statute defines the crime as "operat[ing] or driv[ing] a motor vehicle" when a person is "under the influence of intoxicating liquor ... or any controlled substance" or, alternatively, "when ... there is dui lawyer  0.08 percent or more by weight of alcohol in the person's blood". This definition is expanded by AS 28.40.100(a)(7), which specifies that the term "driver" includes "a person who ... is in actual physical control of a vehicle".[2]

Montana Statute 61-8-401(1) defines that state's corresponding offense as "driv[ing] or be[ing] in actual physical control of a vehicle" when "a person ... is under the influence of... alcohol [or] a dangerous drug". (Under Montana law, having a blood-alcohol level of.10 or greater is not an alternative way of committing the offense; rather, if a driver has a blood-alcohol level of .10 or greater, this raises a rebuttable inference that the driver is under the influence. See Montana Statute 61-8-401(4)(c).)

It appears that Montana's statute is more restrictive than Alaska's in terms of what actions constitute the crime (since a person can not be convicted in Montana based on their blood-alcohol level alone). However, Simpson argues that Montana's statute is significantly broader than Alaska's regarding both the culpable mental state and theactus reus that the government must prove.

167*167 With regard to the culpable mental state, Simpson claims that involuntary intoxication is a potential defense to a DWI charge in Alaska but it is not a defense in Montana. And, with regard to the actus reus of the crime, Simpson claims that a person can be convicted of driving under the influence in Montana even though the person has performed no dui lawyer  voluntary act.

Whether Montana and Alaska law differ regarding their treatment of involuntary intoxication as a potential defense to driving while intoxicated

In Morgan v. Anchorage, 643 P.2d 691 (Alaska App.1982), this Court examined the culpable mental states needed to establish the offense of driving while intoxicated. We rejected the notion that a DWI defendant must know that they are under the influence: "We do not believe that a person who intentionally drinks and intentionally drives must be aware that [they are] under the influence of alcohol in order to be convicted[.]"[3]However, we indicated that the offense of driving while intoxicated requires proof that the defendant knowingly ingested intoxicants and knowingly operated or assumed physical control of a motor vehicle.[4]

(The Morgan opinion uses the term "intentionally" instead of "knowingly". However, in context, it is clear that we meant "knowingly". The culpable mental state of "intentionally" refers only to a defendant's conscious desire to achieve a particular result. See AS 11.81.900(a)(1). Of the four culpable mental states defined in AS 11.81.900(a)(1)(4), "knowingly" isv the only one that applies to conduct. See Neitzel v. State, 655 P.2d 325, 326, 333 (Alaska App.1982), where we concluded that the statutory phrase "intentionally performs an act" really was intended to mean "knowingly performs an act".)

In addition, Alaska case law recognizes the defense of involuntary  dui lawyer intoxication.[5]However, neither this Court nor the supreme court has been called upon to examine how the defense of involuntary intoxication might pertain to a charge of driving while intoxicated.

Criminal law texts on this subject suggest that involuntary intoxication is potentially a defense to driving while intoxicated, but only in limited circumstances. For a general discussion of the effect of involuntary intoxication on criminal liability, see Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), pp. 1001-05, and Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 4.10(f), Vol. 1, pp. 558-59. These commentators explain that involuntary intoxication is normally  dui lawyer treated as a species of mental defect. It does not constitute an absolute defense to a crime, but a defendant is allowed to show that, because of involuntary intoxication, they meet the test for insanity—for instance, that they were unable to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of the law, if that is the applicable test in that jurisdiction.[6]

At the same time, the text writers suggest that we may have gone dui lawyer  too far in Morganwhen we suggested that DWI invariably requires proof that the defendant knowingly ingested alcohol or other intoxicants. In their discussion of involuntary intoxication, Professors Perkins and Boyce point out that "[a]n important qualification [must] be noted":

If one should become intoxicated as a result of an innocent mistake, force[,] or 168*168 fraud, but after becoming drunk was still sufficiently in possession of his faculties to know what he was doing, and to  dui lawyer understand the character of his acts, and with such knowledge and understanding should voluntarily ... drive a motor vehicle on a public highway, the involuntariness of the intoxication would not excuse him because the prohibited act itself was done voluntarily.

Perkins & Boyce, p. 999.

In contrast to the way that we interpreted the offense of driving  dui lawyer while intoxicated inMorgan, Montana law designates driving under the influence as a crime of "absolute liability".[7] According to Montana Statute 45-2-104, the phrase "absolute liability" means that a person can be convicted of the offense "without having, as to each element of the offense, one of the [culpable] mental states of knowingly, negligently, or purposely". In other words, the Montana concept of "absolute liability" is essentially what we would call "strict liability".[8] Thus, one might argue that Montana law would allow a defendant to be convicted of driving under the influence even  dui lawyer though the defendant did not knowingly ingest alcohol or other intoxicants.

Simpson contends that the Montana DUI law does indeed impose dui lawyer  strict liability on people who are involuntarily intoxicated— people who, for example, become intoxicated after someone slips alcohol or another drug into their drink without their knowledge. But Simpson's argument fails to take account of Montana Statute 45-2-203, which codifies a defense of involuntary intoxication.

Montana Statute 45-2-203 begins with the general rules that an intoxicated person "is criminally responsible for his conduct", that "an intoxicated condition is not a defense to any offense", and that a person's intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of the offense".[9] But then the statute declares that these rules do not apply if the person was involuntarily intoxicated—if "the defendant proves that he did not know that it was  dui lawyer an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition".

We have not been able to find any Montana appellate decision that  dui lawyer discusses the interplay between crimes of "absolute liability" and Montana's statutory defense of involuntary intoxication. But in the absence of judicial clarification from the courts of Montana, we are unwilling to assume that the statutory defense of involuntary intoxication is unavailable in prosecutions for driving under the influence.

Whether Montana and Alaska law differ concerning the requirement dui lawyer  of a voluntary act as a necessary predicate for criminal liability

Simpson argues that, because Montana classifies driving under the influence as a crime of "absolute liability", there is no need for the government to prove that the defendant engaged in a voluntary act. Thus, under Simpson's interpretation of Montana law, a person might be held criminally responsible for being intoxicated and in control of a motor vehicle if,  dui lawyer after the person passed out from drinking, the person's companions carried them to a parked vehicle and placed them behind the wheel.

But Montana's doctrine of "absolute liability" only exempts the government from proving the culpable mental states that might otherwise apply to the elements of the crime. The requirement of a voluntary act remains a separate component of liability for any criminal offense. Both Montana law (Montana Statute 45-2-202) and Alaska law (AS 11.81.600(a)) declare that, aside from any culpable 169*169 mental states that may apply to the elements of a particular crime, all crimes require proof that the offender  dui lawyer engaged in a "voluntary act".

Our statute, AS 11.81.900(b)(62), defines "voluntary act" as "a bodily movement performed consciously as a result of effort and determination" or "the possession of property if the defendant was aware of the physical possession or control for a sufficient period to have been able to terminate it". Montana law approaches this issue from the other direction; it defines "involuntary act" rather than "voluntary act". But the result is similar, because Montana law defines "involuntary act" as "a bodily movement that ... dui lawyer  is not a product of the effort or determination of the actor, either conscious or habitual." Montana Statute 45-2-101(32)(d).

Although the voluntariness of a defendant's conduct is rarely disputed, it remains an implicit element of all crimes. If voluntariness is actively disputed, the government must prove it.[10]

The Montana Supreme Court has recognized that the requirement of a  dui lawyer voluntary act is distinct from the culpable mental states that may be required:

[T]he minimum requirements of any criminal offense are ... a voluntary act and companion mental state. [Montana Statute] 45-2-202 ... provides that "[a] material element of every offense is a voluntary act...."

This Court has not judicially recognized the automatism defense[, such as when] a defendant acts during convulsions, sleep, unconsciousness, hypnosis or seizures. [But our] criminal code's provisions requiring a  dui lawyer voluntary act and defining involuntary conduct adequately provide for such defenses....

State v. Korell, 213 Mont. 316, 690 P.2d 992, 1001 (1984).

Simpson nevertheless argues that, under Montana law, a crime of "absolute liability" does not require proof of a voluntary act. He relies on the Montana Supreme Court's statement in State v. West, 252 Mont. 83,  dui lawyer 826 P.2d 940 (1992), that the jury in a DUIcase need not be instructed on the requirement of a "voluntary act".

But the Montana court's decision in West appears to confuse the requirement of a culpable mental state with the requirement of a voluntary act. Here is what the court said on this issue:

In State v. McDole [226 Mont. 169, 734 P.2d 683 (1987)] ... we held that "[d]riving under the influence is an absolute liability offense not requiring the proof of the mental state by the State." [Montana Statute] 61-8-401(7) ... states that "[a]bsolute liability as provided in 45-2-104 will be imposed for a violation of this section."

The basic reason for not requiring the state to prove mental intent in DUIcases is that:

[S]ituations could arise in which defendants could not be convicted under dui lawyer  the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liability under the statute.

McDole, 734 P.2d at 686 (quoting Erwin, Defense of Drunk Driving Cases, § 1.05 (1986)).

The [defendant's] proposed jury instruction required the State to prove the defendant knowingly committed the offense. Absolute liability statutes do not require proof of a mental state. We hold the 170*170 District Court dui lawyer  did not err in refusing the jury instruction defining a voluntary act.

West, 826 P.2d at 943-44.

As can be seen, the Montana Court recites all the reasons why the government does not have to prove a culpable mental state in DUI cases, and then the court inexplicably concludes that the jury did not have to be instructed on the requirement of a voluntary act. But, as the Montana court recognized in Korell (discussed and quoted above), the requirement of a voluntary act is distinct from the culpable mental states that may be required by a specific criminal offense. The fact that Montana's DUI statute does not dui lawyer  require proof of a culpable mental state does not lead to the conclusion that the offense is also exempted from the requirement of a voluntary act.

Thus, on this point as well, we find that Montana law provides no clear answer. Despite the Montana Supreme Court's statement in West, we are unwilling to assume that Montana law has dispensed with the requirement of a voluntary act as a necessary predicate for criminal liability under Montana's driving under the influence statute. The opposite appears more likely.

Conclusion: Whatever the arguable differences between the Montana statute and Alaska's DWI statute, they are still "similar"

We have discussed (at some length) the purported differences between dui lawyer  the Montana offense of "driving under the influence" law and the Alaska offense of "driving while intoxicated". We are not sure that these purported dui lawyer  differences exist. Moreover, we conclude that these purported differences are irrelevant to our decision of this case.

As we pointed out early in this opinion, AS 28.35.030(o)(4) does not require us to decide whether Montana law and Alaska law are identical; rather, the question is whether Montana's definition of driving under the influence is "similar" to Alaska's definition of driving while intoxicated.

It is conceivable that, in some instances, an involuntarily intoxicated driver would have a defense to DWI under Alaska law but would not have a defense under Montana law. But instances of involuntary intoxication are  dui lawyer rare. Moreover, even in such instances, a defendant charged with DWI would probably have to assert, not only that they were involuntarily intoxicated, but also that they had no conscious awareness of being intoxicated before they decided to drive or assume control of a motor vehicle. (As noted above,  dui lawyer there is no Alaska decision on this point, but the passage from Perkins & Boycequoted above suggests that this is the applicable rule.)

Thus, any purported difference between Montana law and Alaska law would apply only to a narrow spectrum of unusual cases. As we pointed out in Borja v. State (a case which dealt with the related issue of whether an out-of-state conviction qualifies as a prior felony for purposes of Alaska's presumptive sentencing statutes), statutes can be "similar" even though  dui lawyer they do not completely overlap in their coverage:

[E]ven if it were possible to identify conduct that was clearly included within the [other state's] offense and clearly excluded from the Alaska offense, this would not necessarily be fatal to [a finding of "similarity"]. AS 12.55.145(a)(2) does not require that the out-of-state offense be identical to an Alaska felony—only that its elements be "similar" to those of an Alaska felony.  dui lawyer Implicit in this statutory wording is the possibility that there will be some acts covered by one statute that will not be covered by the other.

Borja, 886 P.2d 1311, 1314 (Alaska App. 1994).

Applying this reasoning, we conclude that Montana's definition of driving under the influence is sufficiently similar to Alaska's definition of driving while intoxicated that a Montana conviction qualifies as a prior conviction under AS 28.35.030(o)(4). Thus, Simpson's Montana convictions for driving under the influence can be used as the predicate convictions needed to support  dui lawyer a felony DWI charge in Alaska.

The decision of the superior court is REVERSED. The felony DWI charge  dui lawyer against Simpson is reinstated, and this case is remanded 171*171 to the superior court for further proceedings on that charge.

[1] Since the time of Simpson's offense, the Alaska Legislature has amended AS 28.35.030(n). The offense of felony DWI now requires proof of two prior convictions within the preceding ten years. See SLA 2002, ch. 60, § 31. This amendment is not relevant to Simpson's case.

[2] In September 2000 (the time of Simpson's alleged offense), the statute dui lawyer  required a blood-alcohol level of 0.10 percent, rather than 0.08 percent, to trigger criminal liability. This difference is not pertinent to the issue raised in Simpson's appeal.

[3] Morgan, 643 P.2d at 692; see also Hoople v. State, 985 P.2d 1004, 1006 (Alaska App.1999) ("[The offense of] driving while intoxicated ... does not require proof of any culpable mental state regarding the circumstance  dui lawyer that makes the driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol content exceeded [the legal limit] ).").

[4] See Morgan, 643 P.2d at 692.

[5] See Evans v. State, 645 P.2d 155, 159 (Alaska 1982) ("The case law is ... clear that involuntary intoxication ... constitute[s] a valid defense. This is most clearly shown when the intoxication is the result of the force, duress, fraud, or contrivances of another."); see also State v. Hazelwood, 946 P.2d 875, 879 (Alaska 1997) ("[I]t is always a defense to prosecution that the dui lawyer  conduct was not voluntary. In every case, the alleged [criminal conduct] must have been the product of a free will[.]").

[6] Perkins & Boyce at 1005; LaFave & Scott at 558.

[7] Montana Statute 61-8-401(7).

[8] See AS 11.81.600(b): "A person is not guilty of an offense unless the person acts with a culpable mental state, except that no culpable mental state must be proved ... if the description of the offense does not specify a culpable mental state and the offense is ... designated as one of `strict liability'[.]"

[9] The constitutionality of this statute was upheld in Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), reversing State v. Egelhoff, 272 Mont. 114, 900 P.2d 260, 264-66 (1995).

[10] See State v. Kupihea, 98 Hawai`i 196, 46 P.3d 498, 504 n. 9 (2002) ("The voluntary nature of an act is part and parcel of the conduct element required to be proven by the prosecution.... [All criminal offenses] require[,] as a minimum basis for the imposition of penal liability, conduct which includes a voluntary act or voluntary omission."); Smith v. State,  dui lawyer 56 S.W.3d 739, 746 (Tex.App.2001) (the government must prove beyond a reasonable doubt that the possessor of a controlled substance had control over the object long enough to allow them to comprehend that they possessed a controlled substance and to enable them to terminate their control over it); In re Marriage of Bartlett, 305 Ill.App.3d 28, 238 III.Dec. 357, 711 N.E.2d 460, 463 (1999) (in a prosecution for contempt of court, the government must prove beyond a reasonable doubt that the defendant performed a voluntary act and knew or reasonably should have known that the act contravened 





MISSOURI, Petitioner
v.
Tyler G. McNEELY.

No. 11-1425.

Supreme Court of United States.Argued January 9, 2013.
Decided April 17, 2013.

1556*1556 John N. Koester, Jr., argued, for Petitioner.

Nichole A. Saharsky, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.

Steven R. Shapiro, for Respondent.

John N. Koester, Jr., Counsel of Record, Assistant Prosecuting Attorney, Office of Prosecuting Attorney, Cape Girardeau County, MO, Angel M. Woodruff, Acting Prosecuting Attorney, Jackson, MO, for Petitioner.

Stephen Douglas Bonney, Kansas City, MO, Anthony E. Rothert,  dui lawyer Grant R. Doty, St. Louis, MO, Steven R. Shapiro, Counsel of Record, Ezekiel R. Edwards, Brandon J. Buskey, New York, NY, Stephen C. Wilson, Wilson & Mann, L.C., Cape Girardeau, MO, for Respondent.

Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, and an opinion with respect to Parts II-C and III, in which Justice SCALIA,  drunk driving lawyer Justice dui lawyer  GINSBURG, and Justice KAGAN join.


In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826,  drunk driving lawyer 16 L.Ed.2d 908 (1966),this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer "might dui lawyer  reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question dui lawyer  presented here is whether the natural metabolization of alcohol in the bloodstream presents aper se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.  http://www.duilawyersanbernardinocourt.com 


I

While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely's truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs thatMcNeely was intoxicated, including McNeely's bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed "a couple of beers" at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck.  dui lawyer After  dui lawyer McNeely performed poorly on a battery of 1557*1557 field-sobriety tests and declined to use a portable breath-test device to measure his  drunk driving lawyer blood alcohol concentration (BAC), the officer placed him under arrest.


The officer began to transport McNeely to the station house.  drunk driving lawyer But when McNeelyindicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital  dui lawyer for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law dui lawyer  refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 2011). McNeelynonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely's BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See § 577.012.1.  http://www.duilawyersanbernardinocourt.com 


McNeely was charged with driving while intoxicated (DWI), in dui lawyer  violation of § 577.010.[1] He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that "[a]s in all cases involving intoxication, dui lawyer  [McNeely's] blood alcohol was being metabolized by his liver," there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG-CR01849-01 (Cir. Ct. Cape Girardeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011),id., at 24a.  http://www.duilawyersanbernardinocourt.com 

The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) drunk driving lawyer  (per curiam). Recognizing that this Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, "provide[d] the backdrop" to its analysis, the Missouri Supreme Court held that "Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw." 358 S.W.3d, at 69, 74. The court further  dui lawyer concluded that Schmerber "requires more than the mere dui lawyer  dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case." 358 S.W.3d, at 70. According to the court, exigency depends heavily on the existence of additional "`special facts,'" such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S.W.3d, at 70, 74. Finding that this was "unquestionably a routine DWI case" in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely'sFourth Amendment right to be free from unreasonable searches of his person. Id.,at 74-75.  http://www.duilawyersanbernardinocourt.com 


1558*1558 We granted certiorari to resolve a split of authority  dui lawyer on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.[2] See 567 U.S. ___,  drunk driving lawyer 133 S.Ct. 98, 183 L.Ed.2d 737 (2012). We now affirm.  http://www.duilawyersanbernardinocourt.com 


II

A

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Our cases have held that a warrantless search of the person is reasonable only if it falls  dui lawyer within a  dui lawyer recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's "most personal and deep-rooted expectations of privacy." Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); see also Skinner v. Railway Labor Executives' Assn.,  drunk driving lawyer 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).


We first considered the Fourth Amendment restrictions on such  dui lawyer searches inSchmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U.S., at 758, 86 S.Ct. 1826. Noting that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. Id., at 770, 86 S.Ct. 1826. We explained that the importance of requiring authorization by a "`neutral and detached magistrate'"  dui lawyer before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great." Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13-14,  drunk driving lawyer 68 S.Ct. 367, 92 L.Ed. 436 (1948)).  http://www.duilawyersanbernardinocourt.com 


As noted, the warrant requirement is subject to exceptions. "One well-recognized exception," and the one at issue in this case, "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Kentucky v. King,563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S.  drunk driving lawyer 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam), engage in "hot pursuit" of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), or 1559*1559 enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509-510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may  dui lawyer conduct a search without a warrant to prevent the imminent destruction of evidence. SeeCupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because "there is compelling need for official action and no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942.  http://www.duilawyersanbernardinocourt.com 


To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. SeeBrigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)(finding officers' entry into a home to provide emergency assistance "plainly reasonable under the circumstances"); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of a person to dui lawyer  prevent him from returning to his trailer to destroy hidden contraband was reasonable "[i]n the circumstances of the case before us" due to exigency);Cupp, 412 U.S., at 296, 93 S.Ct. 2000 (holding that a limited warrantless search of a suspect's fingernails to preserve evidence that the suspect  dui lawyer was trying to rub off was justified "[o]n the facts of this case"); see also Richards v. Wisconsin, 520 U.S. 385, 391-396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per seexception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct "in a particular case"). We apply this "finely tuned approach" to Fourth Amendment reasonableness in this context because the police action at issue lacks "the traditional justification that ... a warrant ... provides." Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent that established justification, "the fact-specific nature of the reasonableness inquiry,"Ohio v. Robinette,  drunk driving lawyer 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996),demands that we evaluate each case of alleged exigency based "on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).[3]


Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U.S., at 758, 86 S.Ct. 1826. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758-759, 86 S.Ct. 1826. After explaining that the warrant requirement applied generally to searches that intrude into dui lawyer  the human body, 1560*1560 we concluded that the warrantless blood test "in the present case" was nonetheless permissible because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence.'" Id., at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)).  http://www.duilawyersanbernardinocourt.com 

In support of that conclusion, we observed that evidence could have been lost because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from drunk driving lawyer  the system." 384 U.S., at 770, 86 S.Ct. 1826. We added that "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." Id., at 770-771, 86 S.Ct. 1826. "Given  drunk driving lawyer these special facts," we found that it was appropriate for the police to act without a warrant.  dui lawyer Id., at 771, 86 S.Ct. 1826. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, "involve[d] virtually no risk, trauma, or pain," and was drunk driving lawyer  conducted in a reasonable fashion "by a physician in a hospital environment according to accepted medical practices." Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based "on the facts of the present record." Id., at 772, 86 S.Ct. 1826. dui lawyer san  dui lawyer bernardino 


Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and dui lawyer  circumstances dui lawyer  of the particular case and carefully based our holding on those specific facts.
 dui lawyer san bernardino 
B

The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for  dui lawyer Petitioner 28-29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that wheneve drunk driving lawyer r an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. dui lawyer san bernardino  drunk driving lawyer 


It is true that as a result of the human body's natural metabolic processes, the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U.S., at 623, 109 S.Ct. 1402; Schmerber, 384 U.S., at 770-771, 86 S.Ct. 1826. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual's blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such drunk driving lawyer  as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol  dui lawyer Analysis, in Forensic Chemistry Handbook 437-441 (L. Kobilinsky ed.2012). Regardless of the exact elimination rate, it is sufficient for our1561*1561 purposes to note that because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing drunk driving lawyer  will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber,as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the  drunk driving lawyer hospital to receive treatment would have threatened the  dui lawyer destruction of evidence. 384 U.S., at 770-771, 86 S.Ct. 1826. dui lawyer san bernardino 


But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police drunk driving lawyer  officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. SeeMcDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948)("We cannot ... excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies  dui lawyer of the situation made [the search] imperative"). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the  dui lawyer bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect. Richards, 520 U.S., at 393, 117 S.Ct. 1416. dui lawyer san bernardino 

The context of blood testing is different in critical respects from  drunk driving lawyer other destruction-of-evidence cases in which the police are truly confronted with a "`now or never'" situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In contrast to, for example, circumstances in which the suspect has control over easily  dui lawyer disposable evidence, see  drunk driving lawyer Georgia v. Randolph, 547 U.S. 103, 116, n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Cupp, 412 U.S., at 296, 93 S.Ct. 2000,BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a  dui lawyer blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn.2008) (Meyer, J., dissenting). This reality undermines the force of the State's contention, endorsed by the dissent, see post, at 1575 (opinion of THOMAS, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence "is actively being destroyed with every minute that passes." Brief for Petitioner 27. Consider, for example, a situation in which drunk driving lawyer  the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an  drunk driving lawyer exception dui lawyer  to the warrant  dui lawyer requirement. dui lawyer san bernardino 

The State's proposed per se rule also fails to account for advances in drunk driving lawyer  the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish 1562*1562 probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telepho dui lawyer ne. See 91 Stat. 319. As amended,  drunk driving lawyer  dui lawyer the law now allows a federal magistrate judge to consider "information communicated by telephone or other reliable electronic means." Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.[4] And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations.[5] dui lawyer san bernardino 

We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities  dui lawyer designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential 1563*1563 role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where   drunk driving lawyer dui lawyer BAC evidence is lost gradually and relatively predictably.[6] dui lawyer san bernardino 

Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise dui lawyer  questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State's per seapproach would improperly drunk driving lawyer  ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions "to pursue progressive  dui lawyer approaches to warrant acquisition that preserve the  dui lawyer protections afforded by the warrant while meeting the legitimate interests of law enforcement." State v. Rodriguez, 2007 UT 15, ¶ 46, 156 P.3d 771, 779. dui lawyer san bernardino 

In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving  dui lawyer suspect is reasonable must be determined case by case based on the totality of the circumstances. dui lawyer san bernardino 

C

In an opinion concurring in part and dissenting in part, THE CHIEF JUSTICE agrees that the State's proposed per se rule is overbroad because "[f]or exigent circumstances to justify a warrantless search ... there must ... be `no time to secure a warrant.'" Post, at 1572 (quoting Tyler, 436 U.S., at 509, 98 S.Ct. 1942). But THE CHIEF JUSTICE then goes on to suggest his own  drunk driving lawyer categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not  dui lawyer secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical  dui lawyer assistance. Post, at 1572-1574. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 1561, we decline to substitute  drunk driving lawyer THE CHIEF JUSTICE's modified per se rule for our traditional totality of the circumstances analysis.

For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under THE CHIEF JUSTICE's rule, if a police officer serendipitously stops  dui lawyer a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule  dui lawyer  drunk driving lawyer would also distort law enforcement incentives. As with the State's per se rule, THE CHIEF JUSTICE's rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to 1564*1564 secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. THE CHIEF JUSTICE correctly observes that "[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road." Post, at 1572, n. 2. But THE CHIEF JUSTICE does not say that roadside blood draws dui lawyer  are necessarily unreasonable, and if we accepted THE CHIEF JUSTICE's approach, they would become a more attractive option for the police.

III

The remaining arguments advanced in support of a per se exigency rule are unpersuasive. dui lawyer san bernardino 

The State and several of its amici, including the United States,  drunk driving lawyer express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. THE CHIEF JUSTICE and the dissent also raise this concern. See post, at 1569, 1573-1574 (opinion of ROBERTS, C.J.); post, at 1576-1578 (opinion of THOMAS, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a  dui lawyer context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See,e.g., Illinois v. Wardlow, 528 U.S. 119, 123-125, 120 S.Ct. 673,  dui lawyer 145 L.Ed.2d 570 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Robinette, 519 U.S., at 39-40, 117 S.Ct. 417(whether valid consent has been given to search); Tennessee v. Garner, 471 U.S. 1, 8-9, 20, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here.[7] dui lawyer san bernardino  drunk driving lawyer 

Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished  dui lawyer expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves "virtually no 1565*1565 risk, trauma, or pain." Schmerber,384 U.S., at 771, 86 S.Ct. 1826. See also post, at 1575,  dui lawyer and n. 1 (opinion of THOMAS, J.). dui lawyer san bernardino  drunk driving lawyer 

But the fact that people are "accorded less privacy in ... automobiles  drunk driving lawyer because of th[e] compelling governmental need for regulation," California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, drunk driving lawyer  470 U.S., dui lawyer  at 759-766, 105 S.Ct. 1611 (surgery to remove a bullet); Rochin v. California, 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the dui lawyer  Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. SeeSkinner, 489 U.S., at 618-633, 109 S.Ct. 1402 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the "special needs" doctrine); Schmerber, 384 U.S., at 770-772, 86 S.Ct. 1826. dui lawyer  We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally  drunk driving lawyer protected privacy interests. dui lawyer san bernardino 

Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They  dui lawyer argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all  drunk driving lawyer 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 ( dui lawyer No. 811374, Mar. 2011) (NHTSA Review).[8] To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 1570-1571 (opinion of ROBERTS, C.J.);post, at 1576-1577 (opinion of  dui lawyer THOMAS, J.).

"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).  drunk driving lawyer Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts,  dui lawyer 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired dui lawyer  driving crashes in 2011, an average  drunk driving lawyer of one fatality every 53 minutes). dui lawyer san bernardino 

But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular  dui lawyer case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances 1566*1566 analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and  drunk driving lawyer prosecuting drunk-driving offenses, we are not convinced. dui lawyer san bernardino 

As an initial matter, States have a broad range of legal tools to drunk driving lawyer  enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States dui lawyer  have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle  dui lawyer within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra,at 1556 (describing Missouri's drunk driving lawyer  implied consent law).  dui lawyer Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)(holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination). dui lawyer san bernardino  drunk driving lawyer 

It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether.[9] Among these States, several lift restrictions on  dui lawyer nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.[10] Cf. Bullcoming v. New 1567*1567Mexico, 564 U.S. ___, ___, 131 S.Ct. 2705, 2710-2711, 180 L.Ed.2d 610 (2011)(noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement's ability to recover BAC evidence. dui lawyer  See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36-38 (No. 810852, Oct. 2007). dui lawyer san bernardino  drunk driving lawyer 

To be sure, "States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). But wide-spread dui lawyer  state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest.  dui lawyer They also strongly suggest that our ruling today will not "severely hamper effective law enforcement."Garner, 471 U.S., at 19, 105 S.Ct. 1694. dui lawyer san bernardino 

IV

The State argued before this Court that the fact that alcohol is  drunk driving lawyer naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual  dui lawyer delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was "sure" a prosecuting attorney was on call and even though  drunk driving lawyer he had no  dui lawyer reason to believe that a magistrate judge would have been unavailable. Id., at 39, 41-42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id., at 39-40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, "a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant." App. to Pet. for Cert. 43a.[11] dui lawyer san bernardino 

The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden  dui lawyer of establishing exigent  dui lawyer circumstances.1568*1568 358 S.W.3d, at 70, 74-75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood  drunk driving lawyer categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.

Here and in its own courts the State based its case on an insistence drunk driving lawyer  that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood  dui lawyer test without any precondition for a warrant. That is incorrect. dui lawyer san bernardino 

Although the Missouri Supreme Court referred to this case drunk driving lawyer  as "unquestionably a routine DWI case," 358 S.W.3d, at 74, the fact that a particular drunk-driving stop is "routine" in the sense that it does not involve "`special facts,'" ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required.  dui lawyer Other factors present in an o drunk driving lawyer rdinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can  drunk driving lawyer obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to  dui lawyer obtain reliable evidence, will no doubt vary depending upon the circumstances in the case. dui lawyer san bernardino  drunk driving lawyer 

Because this case was argued on the broad proposition drunk driving lawyer that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that drunk driving lawyer  the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in  dui lawyer different jurisdictions nationwide, cases will arise when anticipated  drunk driving lawyer  dui lawyer delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the drunk driving lawyer  sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.

* * *

We hold that in drunk-driving investigations, the natural  drunk driving lawyer dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. dui lawyer san bernardino 

The judgment of the Missouri Supreme Court is affirmed. dui lawyer san bernardino 

It is so ordered.

Justice KENNEDY, concurring in part. dui lawyer san  dui lawyer bernardino  https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html 

I join Parts I, II-A, II-B, and IV of the opinion for the Court. dui lawyer san  dui lawyer bernardino  https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html drunk driving lawyer 

For the reasons stated below this case does not call for the Court to  drunk driving lawyer consider dui lawyer  in detail the issue discussed in Part II-C and the separate opinion by THE CHIEF JUSTICE.  dui lawyer https://www.avvo.com/attorneys/92401-ca-patrick-silva-333848/reviews.html san bernardino 


As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is dui lawyer  1569*1569 correct, of course, as a general proposition; yet it ought not to be interpreted to indicate dui lawyer  this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a w drunk driving lawyer arrantless blood test in order to preserve the critical evidence. dui lawyer san bernardino 

States and other governmental entities which enforce the driving laws  dui lawyer can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law  dui lawyer enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a dui lawyer  case permitting it to provide more guidance than it undertakes to give today. dui lawyer san bernardino 

As the opinion of the Court is correct to note, the instant case, drunk driving lawyer  by reason of the dui lawyer  way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the  drunk driving lawyer Fourth Amendment. dui lawyer san bernardino 

Chief Justice ROBERTS, with whom Justice BREYER  dui lawyer and J drunk driving lawyer ustice ALITO join,  dui lawyer concurring in part and dissenting in part.

A police officer reading this Court's opinion would have no idea — no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused drunk driving lawyer  a breathalyzer test.  dui lawyer I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.
 dui lawyer san bernardino 
In my view, the proper rule is straightforward. Our cases  drunk driving lawyer establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in  dui lawyer the bloodstream constitutes not dui lawyer  only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there drunk driving lawyer  is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant. dui lawyer san bernardino 

I

The Fourth Amendment provides: dui lawyer san bernardino 

"The right of the people to be secure in their persons,  dui lawyer houses,   drunk driving lawyer dui lawyer papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." dui lawyer san bernardino 

That language does not state that warrants are required  dui lawyer prior dui lawyer  to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U.S. 757, 767, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). dui lawyer san bernardino 

However, "the ultimate touchstone of the Fourth  dui lawyer Amendment is `reasonableness,'"1570*1570 Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and thus "the warrant requirement is subject to certain reasonable exceptions," King, 563 U.S., at ___, 131 S.Ct., at 1856. One of those exceptions is known  dui lawyer as the "exigent circumstances exception," which "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Ibid.(internal quotation marks and alterations omitted). dui lawyer san bernardino 

Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham  dui lawyer City, supra, at 403, 126 S.Ct. 1943, we held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), we held that "[a] burning building clearly presents  dui lawyer an exigency of sufficient proportions to render a warrantless entry dui lawyer  `reasonable.'" And there is a hot pursuit exception to the warrant requirement as well. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), we recognized "the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons." Santana, supra, at 42, 96 S.Ct. 2406. In each of these cases, the requirement that we base our decision on the dui lawyer  "totality of the circumstances" has not prevented us from spelling out a general rule for the police to follow. dui lawyer san bernardino 

The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that "law enforcement officers may make a warrantless entry onto private property ... to drunk driving lawyer  prevent the imminent destruction of evidence." Brigham City, supra, at 403, 126 S.Ct. 1943 (citing Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)); see also, e.g., King, supra, at ___, 131 S.Ct., at 1856-1857. For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers' warrantless entry into the defendant's home, with the plurality explaining that the drugs "could be quickly and easily destroyed" or "distributed or hidden before a warrant could be obtained at  drunk driving lawyer that time of night." 374 U.S., at 40, 42, 83 S.Ct. 1623. dui lawyer san bernardino 

As an overarching principle, we have held that if there is a "compelling need for official action and no time to secure a warrant," the warrant requirement may be excused. Tyler, supra, at 509, 98 S.Ct.  dui lawyer 1942. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving. dui lawyer san bernardino  drunk driving lawyer  drunk driving lawyer 

II

A

The reasonable belief that critical evidence is being destroyed gives drunk driving lawyer  rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent  dui lawyer per hour. Stripp, Forensic 1571*1571  drunk driving lawyer  dui lawyer and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed.2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception. dui lawyer san bernardino 

And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely,   dui lawyer drunk driving lawyer including dui lawyer with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22-23 (citing Mo. Ann. Stat. §§ 558.011, 577.010, 577.023 (West 2011)). dui lawyer san bernardino 

Evidence of a driver's blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a "high BAC," often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x-xviii (No. 811673, Oct. 2012). BAC evidence  dui lawyer clearly matters. And when drivers dui lawyer  refuse breathalyzers, asMcNeely did here, a blood draw becomes necessary to obtain that evidence. dui lawyer san bernardino 

The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know  dui lawyer precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily dui lawyer  lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra. dui lawyer san bernardino 

McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant's BAC at the time he was driving. See Brief for Respondent 44-46. But that's not good enough. We have indicated that exigent circumstances justify drunk driving lawyer  warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U.S., at ___-___, 131 S.Ct., at 1857-1858. We dui lawyer  have not said that, because there could well be drug paraphernalia elsewhere in  dui lawyer the home, or because a defendant's co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless  drunk driving lawyer entry. dui lawyer san bernardino 

The same approach should govern here. There is a compelling need to search because alcohol — the nearly conclusive evidence of a serious crime — is dissipating from the bloodstream. The need  drunk driving lawyer is no less compelling dui lawyer  because the police might be able to acquire second-best evidence some other way.[1]

1572*1572 B dui lawyer san bernardino 

For exigent circumstances to justify a warrantless search, however, there must also be "no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942; seeSchmerber, 384 U.S., at 771, 86 S.Ct. 1826 (warrantless  dui lawyer  dui lawyer search legal when "there was no time to seek out a magistrate and secure a warrant"). In this respect, obtaining  dui lawyer  drunk driving lawyer a blood sample from a suspected drunk driver differs from other exigent circumstances cases. dui lawyer san bernardino 

Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front  drunk driving lawyer of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be dui lawyer  injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the dui lawyer  emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away.[2] There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical professional. In this case, for example, approximately 25 minutes elapsed between the drunk driving lawyer  drunk driving lawyer  time the police stopped McNeely and the time his blood was drawn. App. 36, 38. dui lawyer san bernardino 

As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search — critical evidence is still disappearing. But the fact that the dissipation persists for  drunk driving lawyer some dui lawyer  time means that the police — although they may not be able to do anything about it right away — may still be  dui lawyer able to respond to the ongoing destruction of evidence later on. dui lawyer san bernardino 

There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 1561-1563, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the drunk driving lawyer  judge's signature to a warrant. See, e.g.,Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Idaho Code §§ 19-4404, 19-4406 (Lexis 2004); Minn. Rules Crim. Proc. 36.01-36.08 (2010 and Supp.2013); Mont. Code Ann. § 46-5-222 (2012); see generally NHTSA, Use of Warrants for Breath dui lawyer  Test Refusal: Case Studies 6-32 (No. 1573*1573810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI  dui lawyer Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction. dui lawyer san bernardino 

III

A

In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509, 98 S.Ct. 1942; see also dui lawyer  Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("in order to satisfy the  dui lawyer `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... police officer[s] conducting a  drunk driving lawyer  drunk driving lawyer search or seizure under one of the exceptions to the warrant requirement ... is not that they always be correct, but that they always be reasonable"); Terry v. drunk driving lawyer  Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)("police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure"). dui lawyer san bernardino 

Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search drunk driving lawyer  is reasonable. We have already held that forced blood draws can be constitutional — that such searches can be reasonable — but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U.S., at 770, 86 S.Ct. 1826 (upholding a  dui lawyer warrantless forced blood draw but noting the "importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt" as "indisputable and great"). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified. dui lawyer san bernardino 

At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that  dui lawyer  dui lawyer exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, drunk driving lawyer  or because the destruction occurs continuously over an uncertain period. dui lawyer san bernardino  dui lawyer 

And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood  dui lawyer drawn  drunk driving lawyer 1574*1574 from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, dui lawyer  simply because he sought a warrant prior to his arrival at the hospital. dui lawyer san bernardino 

B dui lawyer san bernardino 

The Court resists the foregoing, contending that the question presented  drunk driving lawyer somehow inhibits such a focused analysis in this case. See ante, at 1567-1568. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment "based upon the natural dissipation of alcohol in the bloodstream." Pet. for Cert. i. The majority answers "It depends," and so do I. The difference is that the majority offers no additional guidance, merely instructing courts and police officers to consider the totality  drunk driving lawyer of the circumstances. I believe more meaningful guidance can be provided about how dui lawyer  to handle the typical cases, and nothing about the question presented prohibits affording that guidance. dui lawyer san bernardino 

A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 1563. That is not plausible: Police and prosecutors need warrants drunk driving lawyer  in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality's  dui lawyer suggestion also overlooks the interest of law enforcement in the protection a warrant provides. duilawyer san bernardino 

The Court is correct when it says that every case must be dui lawyer  dui lawyer  considered on its  drunk driving lawyer particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should  drunk driving lawyer come down to whether there is time to secure one.
 dui lawyer san bernardino 
Schmerber itself provides support for such an analysis. The dui lawyer  Court there made much of the fact that "there was no time to seek out a magistrate and secure a warrant." 384 U.S., at 771, 86 S.Ct. 1826. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for  dui lawyer the imminent destruction of drunk driving lawyer  evidence, when the officers are in a position to do something about it. dui lawyer san bernardino 

* * *

Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts. dui lawyer san bernardino drunk driving lawyer  

Justice THOMAS, dissenting. dui lawyer san bernardino 

This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving dui lawyer  under the influence of alcohol. Because the body's natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes dui lawyer  an exigent  drunk driving lawyer circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment. dui lawyer san bernardino 

I

A

The Fourth Amendment states that "[t]he right of the people to be secure in 1575*1575their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable  dui lawyer cause." Before a search occurs, "a warrant must generally be secured," Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849,  dui lawyer 1856,  drunk driving lawyer 179 L.Ed.2d 865 (2011), but "this presumption may be overcome in some circumstances because `[t]he ultimate touchstone of the Fourth Amendment is "reasonableness."'" Ibid. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); alteration in original). dui lawyer san bernardino 

The presence of "exigent circumstances" is one such exception to the warrant requirement. Exigency applies when "`the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable dui lawyer  under the Fourth Amendment.'" 563 U.S., at ___, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would dui lawyer  typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U.S., at ___, 131 S.Ct., at 1856-1857. As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in "`imminent destruction of drunk driving lawyer  evidence.'" Ibid. (quoting Brigham City, supra, at 403, 126 S.Ct. 1943). dui lawyer san bernardino 

B

Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour,ante, at 1560, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a person's sex, weight, body type, and drinking history. Ante, at 1560-1561; Brief for United States as Amicus Curiae 23. The Court drunk driving lawyer  dui lawyer  has acknowledged this fact sinceSchmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)("We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system"). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an  dui lawyer officer investigating a drunk-driving crime "might reasonably  drunk driving lawyer [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] `the destruction of evidence.'" Ibid. (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). The Court explained that drawing a person's blood is "a highly effective means of determining the degree to which [he] is under the influence of alcohol" and is a reasonable procedure because blood tests are "commonplace" and "involv[e] virtually no risk, trauma, or pain."[1] 384 U.S., at 771, 86 S.Ct. 1826. The Court, therefore, held that dissipation of alcohol in dui lawyer  the blood constitutes an exigency that allows a blood draw without a warrant.

The rapid destruction of evidence acknowledged by the parties, the majority, andSchmerber's exigency determination 1576*1576 occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). drunk driving lawyer  In dui lawyer  Cupp, officers questioning a murder suspect observed a spot on the suspect's finger that they believed might be dried blood. Id., at 292, 93 S.Ct. 2000. After the suspect began making obvious efforts to remove the spots from his hands,  dui lawyer the officers took samples without obtaining either his consent or a warrant. Id., at 296, 93 S.Ct. 2000. Following a Fourth Amendment challenge to this search, the Court held that the "ready destructibility of the  drunk driving lawyer evidence" and the suspect's observed efforts to destroy it "justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails." Ibid. dui lawyer san bernardino 

In this case, a similar exigency is present. Just as the suspect's  dui lawyer efforts to destroy "highly evanescent evidence" gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances. dui lawyer san bernardino 

A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into  drunk driving lawyer the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. dui lawyer  But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of  drunk driving lawyer drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U.S.C. § 841(b)(1)(D) (lower penalties for less than dui lawyer  50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable. dui lawyer san bernardino 

The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states' adoption of laws penalizing the operation of a motor vehicle "with a blood alcohol concentration of 0.08 percent or greater." 23 U.S.C. § 163(a). See also 23 C.F.R. § 1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA),  dui lawyer Alcohol and Highway dui lawyer   drunk driving lawyer Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. § 577.012(1)-(2) (West 2011) (establishing Missouri's 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§ 577.010(3)-(4), 577.012(4)-(5)  drunk driving lawyer (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication 1577*1577 directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue. dui lawyer san bernardino 

II

In today's decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a  dui lawyer question  dui lawyer about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual drunk driving lawyer  exigency at issue: the uncontested destruction of evidence due to metabolization of alcohol. See Part I, supra. Moreover, the Court's facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context. dui lawyer san bernardino 

The Court's judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 1562 (justifying delays in part because dui dui lawyer  lawyer   drunk driving lawyer "BAC evidence is lost gradually and relatively predictably"); ante, at 1561 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry. dui lawyer sanbernardino 

The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 1561 ("sufficient for our purposes to note that ... significant delay in testing will negatively affect the probative value" (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is  dui lawyer obtained  drunk driving lawyer will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects' initial levels  dui lawyer of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. Seesupra, at 1576-1577 drunk driving lawyer  (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion. duilawyer san bernardino 

Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too  dui lawyer drunk driving lawyer  little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, dui lawyer  there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota  drunk driving lawyer Supreme Court recognized in rejecting arguments like those adopted by the Court today:

"[T]he officer has no control over how long it would take to travel to a judge or the judge's availability. The officer also may not know the time of the suspect's last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is  dui lawyer brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these  dui lawyer considerations and  drunk driving lawyer predict how long the most probative evidence 1578*1578of the defendant's blood-alcohol level would continue to exist before a blood sample was no longer reliable." State v. Shriner, 751 N.W.2d 538, 549 (2008) (footnote omitted).

The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before "too much" evidence is destroyed, for the police lack reliable information concerning the relevant variables.[2] dui lawyer san bernardino 

This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the  drunk driving lawyer officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent's trial that it typically took 1½; to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53-54.  dui lawyer Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter.  drunk driving lawyer Brief for Respondent 56; App. 70. Ultimately this factual tiff is dui lawyer  beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and access to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute. dui lawyer san bernardino 

The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 1561-1563, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§ 542.276.2(1), 542.276.2.3 (West Supp.2012), rendering the Court's 50-State survey irrelevant to the actual disposition of this case. Ante,  dui lawyer at drunk driving lawyer  1555, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, "[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review." Ante, at 1562. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have dui lawyer  to guess how long it will take to  drunk driving lawyer secure a warrant. dui lawyer san bernardino 

* * *

For the foregoing reasons, I respectfully dissent. dui lawyer san bernardino 

[1] As a result of his two prior drunk-driving convictions, McNeely was charged with a class D felony under Missouri law, which carries a maximum imprisonment term of four years. See Mo. Ann. Stat. §§ 558.011, 577.023.1(5), 577.023.3 (West 2011). dui lawyer san bernardino 

[2] Compare 358 S.W.3d 65 (2012) (case below), State v. Johnson, 744 N.W.2d 340 (Iowa 2008)(same conclusion), and State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (same), with State v. Shriner,751  dui lawyer N.W.2d 538 (Minn.2008) (holding that the natural dissipation of blood-alcohol evidence alone constitutes a per se exigency), State v. Bohling, 173 Wis.2d 529, dui lawyer  drunk driving lawyer  494 N.W.2d 399 (1993) (same); State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989) (same).

[3] We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case. See,e.g., California v. Acevedo, 500 U.S. 565, dui lawyer  569-570, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (auto-mobile exception); United States v. Robinson, 414 U.S. 218, 224-235, 94 S.Ct. 467, 38 L.Ed.2d 427 drunk driving lawyer  (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry. dui lawyer san bernardino 

[4] See Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Ariz. Rev.Stat. Ann. §§ 13-3914(C), 13-3915(D), (E) (West 2010); Ark.Code Ann. § 16-82-201 (2005); Cal.Penal Code Ann. § 1526(b) (West 2011); Colo. Rule Crim. Proc. 41(c)(3) (2012); Ga.Code Ann. § 17-5-21.1 (2008); Haw. Rules Penal Proc. 41(h)-(i) (2013); Idaho Code §§  dui lawyer 19-4404, 19-4406 (Lexis 2004); Ind. Code § 35-33-5-8 (2012); Iowa Code §§ 321J.10(3), 462A.14D(3) (2009) (limited to specific circumstances involving  drunk driving lawyer accidents); Kan. Stat. Ann. §§ 22-2502(a), 22-2504 (2011 Cum.Supp.); La.Code Crim. Proc. Ann., Arts. 162.1(B), (D) (West 2003); Mich. Comp. Laws Ann. § 780.651(2)-(6) (West 2006); Minn. Rules Crim. Proc. 33.05, 36.01-36.08 (2010 and Supp.2013); Mont.Code Ann. §§ 46-5-221, 46-5-222 (2012); Neb.Rev.Stat. §§ 29-814.01, 29-814.03, 29-814.05 (2008); Nev. Rev.Stat. § 179.045(2), (4) (2011); N.H.Rev. Stat. Ann. § 595-A:4-a (Lexis Supp.2012);  drunk driving lawyer N.J. Rule Crim. Proc. 3:5-3(b) (2013); N.M. Rules Crim. Proc. 5-211(F)(3), (G)(3) (Supp. 2012); N.Y.Crim. Proc. Law Ann. §§ 690.35(1), dui lawyer 690.36(1), 690.40(3), 690.45(1), (2) (West 2009); N.C. Gen.Stat. Ann. § 15A-245(a)(3) (Lexis 2011); N.D. Rules Crim. Proc. 41(c)(2)-(3) (2012-2013);  drunk driving lawyer Ohio Rules Crim. Proc. 41(C)(1)-(2) (2011); Okla. Stat. dui lawyer  Ann., Tit. 22, §§ 1223.1, 1225(B) (West 2011); Ore.Rev.Stat. § 133.545(5)-(6) (2011); Pa. Rules Crim. Proc. 203(A), (C) (2012); S.D. Codified Laws §§ 23A-35-4.2, 23A-35-5, 23A-35-6 (2004); Utah Rule Crim. Proc. 40(l) (2012); Vt. Rules Crim. Proc.  drunk driving lawyer 41(c)(4), (g)(2) (Supp.2012); Va.Code Ann. § 19.2-54 (Lexis Supp.2012); Wash.Super. Ct.Crim. Rule 2.3(c) (2002); Wis. Stat. § 968.12(3) (2007-2008); Wyo. Stat. Ann. § 31-6-102(d) (2011); see generally 2 W. LaFave, Search and Seizure § 4.3(b), pp. 511-516, and n. 29 (4th ed.2004) (describing oral search drunk driving lawyer  warrants and collecting state laws). Missouri requires that search warrants be in writing and does not permit oral testimony, thus excluding telephonic warrants. Mo. Ann. Stat. §§ 542.276.2(1), 542.276.3 (West Supp.2012). State law does permit the submission of warrant applications "by facsimile or  drunk driving lawyer other electronic means." § 542.276.3. dui lawyer san bernardino 

[5] During the suppression hearing in this case, McNeely entered into evidence a search-warrant form used in drunk-driving cases by the prosecutor's office in Cape Girardeau County,  dui lawyer where the arrest   dui lawyer drunk driving lawyer took place. App. 61-69. The arresting officer acknowledged that he had used such forms in the past and that they were "readily available." Id., at 41-42. dui lawyer san bernardino 

[6] The dissent claims that a "50-state survey [is] irrelevant to the actual disposition of this case" because Missouri requires written warrant applications. Post, at 1578. But the per se exigency rule that the drunk driving lawyer  State seeks and the dissent embraces would apply nationally because it treats "the body's natural metabolization of alcohol" as a sufficient basis  drunk driving lawyer dui lawyer  for a warrantless search everywhere and always. Post,at 1574. The technological  dui lawyer innovations in warrant procedures that many States have  drunk driving lawyer adopted are accordingly relevant to show that the per se rule is overbroad.

[7] The dissent contends that officers in the field will be  drunk driving lawyer unable to apply the traditional totality of the circumstances test in this context because they will not know all of the relevant facts at the time of an arrest. See post, at 1577. But because "[t]he police are presumably familiar with the mechanics and time involved in the warrant  dui lawyer process in their particular jurisdiction, drunk driving lawyer  dui lawyer " post, at 1573 (opinion of ROBERTS, C.J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances. Reviewing courts in turn should assess those judgments "`from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Ryburn v. Huff, 565 U.S. ___, ___, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012) drunk driving lawyer  (per curiam). dui lawyersan bernardino 

[8] Pursuant to congressional directive, the NHTSA conditions federal highway grants on States' adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater.  drunk driving lawyer See 23  dui lawyer U.S.C. § 163(a); 23 C.F.R. § 1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g.,  drunk driving lawyer 32 C.F.R. §§ 234.17(c)(1)(ii), 1903.4(b)(1)(i)-(ii); 36 C.F.R. § 4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose  drunk driving lawyer heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175. dui lawyer 

[9] See Ala.Code § 32-5-192(c) (2010); Alaska Stat.  drunk driving lawyer §§ 28.35.032(a), 28.35.035(a) (2012); Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ark.Code Ann. §§ 5-65-205(a)(1), 5-65-208(a)(1) (Supp.2011); Conn. Gen.Stat. §§ 14-227b(b), 14-227c(b) (2011); Fla. Stat. Ann. § 316.1933(1)(a) (West 2006); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Haw.Rev. drunk driving lawyer  Stat. § 291E-15 (2009 Cum.Supp.), §§ 291E-21(a), 291E-33 (2007), § 291E-65 (2009 Cum.Supp.); Iowa Code §§ 321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. § 8-1001(b), (d) (2001); Ky.Rev.Stat. Ann. § 189A.105(2) (Lexis Supp.2012); La. Rev.Stat. Ann. § 32:666.A(1)(a)(i), (2) (Supp. 2013); Md. Transp. Code Ann. § 16-205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, § 24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann.  drunk driving lawyer § 257.625d(1) (West 2006); Miss.Code Ann. § 63-11-21 (1973-2004);   dui lawyer Mont.Code Ann. § 61-8-402(4), (5) (2011); Neb.Rev.Stat. § 60-498.01(2) (2012 Cum.Supp.), § 60-6,210 (2010); N.H.Rev.Stat. Ann. §§ 265-A:14(I), 265-A:16 (West 2012 Cum.Supp.); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh.  dui lawyer & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); N.D. Cent.Code Ann. § 39-20-01.1(1) (Lexis Supp.2011), § 39-20-04(1) (Lexis 2008); Okla. Stat., Tit. 47, § 753 (West Supp.2013); Ore.Rev.Stat. § 813.100(2) (2011); 75 Pa. Cons.Stat. § 1547(b)(1) (2004); R.I. Gen. Laws §§ 31-27-2.1 dui lawyer (b), 31-27-2.9(a) (Lexis 2010); S.C.Code Ann. § 56-5-2950(B) (Supp.2011); Tenn.Code Ann. § 55-10-406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§ 724.012(b), 724.013 (West 2011); Vt. Stat. Ann., Tit. 23, § 1202(b), (f) (2007); Wash. Rev.Code § 46.20.308(2)-(3), (5) (2012); W. Va.Code Ann. § 17C-5-7 (Lexis Supp.2012); Wyo. Stat. Ann. § 31-6-102(d) (Lexis 2011).

[10] See Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Ky.Rev.Stat. Ann. § 189A.105(2)(b) (Lexis Supp.2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Mont.Code Ann. § 61-8-402(5) (2011); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011);  dui lawyer Ore.Rev.Stat. 813.320(2)(b) (2011); R.I. Gen. Laws § 31-27-2.9(a) (Lexis 2010); Tenn.Code Ann. § 55-10-406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, § 1202(f) (2007);  drunk driving lawyer Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C-5-7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va.  drunk driving lawyer 271, ___, 728 S.E.2d 155, 167-168 (2012)); Wyo. Stat. Ann. § 31-6-102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273-274 (Iowa 2009) (per curiam)(recognizing that Iowa law imposes a warrant requirement subject   dui lawyer  to a limited case-specific exigency exception). dui lawyer san bernardino 

[11] No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol dui lawyer  officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53-54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County  drunk driving lawyer that had shorter processing times. Id., at 70. dui lawyer san bernardino 

[1] And that second-best evidence may prove useless. When drunk driving lawyer  experts have worked backwards to identify a defendant's BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation § 2:9, pp. 2-130 to 2-137 (2d ed.2006)  dui lawyer (noting counsel objections to such evidence); State v. Eighth Judicial District Court,    dui lawyer 127 Nev. ___, 267 P.3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense § 6.03 (7th ed.2010) (describing ways to undermine such evidence before  drunk driving lawyer a jury). dui lawyer san bernardino 

[2] This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California, 384 U.S. 757, 771-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented  drunk driving lawyer with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by  dui lawyer other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse"); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality    dui lawyer of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber,  drunk driving lawyer would raise additional and serious Fourth Amendment concerns. Seeante, at 1563-1564. dui lawyer 

[1] Neither party has challenged this determination, drunk driving lawyer  which this Court has reaffirmed several times. See,e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Winston v. Lee, 470 U.S. 753, 761-763, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985).Dui Lawyer San Bernardino, DUI Lawyer Riverside, DUI Lawyer Victorville, DUI Lawyer Rancho Cucamonga, DUI Lawyer Joshua Tree, DUI Lawyer Murrieta, DUI Lawyer Indio, DUI Lawyer   dui lawyer  Banning, DUI Lawyer Santa Ana, DUI Lawyer Fullerton, DUI Lawyer Harbor, DUI Lawyer Pomona, Aggressive DUI Lawyer, Drunk Driving Lawyer, Drunk Driving Defense, Hire a DUI Lawyer, Best DUI Lawyer, DUI Trial Lawyer. DMV Drivers License Lawyer, DUI Facts, DUI Criminal Law Attorney

[2] Because the Court's position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant's bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side   dui lawyer  seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost. dui lawyer san bernardino    drunk driving lawyer 

 drunk driving lawyer 

The breath machine is designed to capture air from the smallest air sacs in your lungs. One of the problems with breath testing is that the air that is actually tested may be from the upper airway. This can result in a false high reading.   dui lawyer  


DUI RELATED LINKS




San Bernardino Sheriff

San Benardino County

California DMV

DUI License Take Away


San Bernardino District Attorney

San Bernardino Public Defender

Arrested for Driving Under Influence

Arrested for DUI













WHAT TYPE OF GOOD PEOPLE HAVE RELIED ON MY DUI SKILLS IN THE PAST?




I have represented:




Medical Doctors


Lawyers


Police Officers


Nurses


Truck Drivers


Phlebotomists


Ph.D Professors


Real Estate Agents

Hard working men & women


Business Executives





"when your job is on the line - Call Mr. Silva" 





      HOW TO CHALLENGE A DUI 




1.   Improper Reason to Stop You

2.   Faulty Check Point

3.   Cop Did Not Know How to Give FST's 

4.   Cop Did Not Tell You Your Right to                 Refuse the Road Side Breath Machine

5.   Cop Did Not Give You Choice of Blood 

      or Breath 

6.   Road Side Breath Machine was Not 

      Accuracy Checked Per Title 17

7.   Cop Did Not Observe You for 15 Minutes

      Before You Blew into the Machine at 

      Station

8.   Cop Did Not Offer You a Blood Test 

      After You Completed the Breath Test

9.   Improper Collection Technique of Blood

10. Improper Storage of the Blood

11. Improper Testing of the Blood

12. Blood Machine Improper Calibrated

13. Auto Sampler Not Calibrated

14. Fermentation of Blood

15. Improper Storage of Blood Vial prior to


      Blood Collection 







Dangers of Breath Testing?  If you blow into a breath machine during the absorption phase your breath may be overestimated by 250 percent.  This means that a .12 reading on the machine can actually be a .03 in your blood. 


(I RECEIVED THIS EMAIL FROM ANOTHER ATTORNEY) 





Hi Patrick -

 

I made friends with the court reporter during my trial and we got to talking about DUIs. She has reported a lot of DUI cases. I asked her who, in her opinion, were some of the best DUI defense attorneys she has seen try DUI cases, and she said PATRICK SILVA!  Thought you might like to know this! Great job on your trial!

 

Erica


CASE RESULT:   .20 BAC with auto accident - Beat the DMV - case DISMISSED at court


I AM APPROVED BY THE STATE BAR OF CALIFORNIA TO TEACH OTHER LAWYERS CERTAIN ASPECTS OF SPOTTING PROBLEMS IN THE BLOOD TESTING PROCEDURE. 


909-888-7992


*   15 Years of Top Level DUI Experience


*   I Teach other Lawyers DUI Defense


*   I am one of the BEST DUI Lawyers in So. Cal. 


*   Well Known & Respected in the San Bernardino Courts. 


WHAT TYPE OF CASES HAVE I HANDLED? 





*  DUI murder


*  DUI felony


*  DUI felony with  (child endangerment)


*  DUI 4th time


*  DUI 3rd time


*  DUI 2nd time


*  DUI 1st time 


 I am competitive by nature, I love to win, and I strive to do my very best on each case 





Mr. Silva started representing those accused of DUI for nearly 14 years. We like to say we represent the "falsely" accused. As a DUI lawyer who focuses drunk driving defenses he knows the DUI facts and how to dispel the Drunk Driving Myths. He is a member of the CALIFORNIA DUI LAWYERS ASSOCIATION which is a close knit membership of DUI Attorneys whose main goal is the representation of those accused of DUI. Patrick J. Silva is also a member of NATIONAL COLLEGE FOR DUI DEFENSE which is compromised of the "best" dui attorneys in the nation.http://www.ranchocucamongaduilawyers.com





Hire a DUI Lawyer from the Best DUI Law Firm and get the DUI facts about the Drunk Driving Myths. Attorney Patrick J. Silva has focused his law practice defending those who have been accused of driving under the influence. We represent good folks both in the criminal court system and in the DMV proceedings. Mr. Silva is certified in Standardize Field Sobriety Tests (SFST). He has completed 24 hours of intense training under the guidelines set forth by the National Highway Traffic Safety Administration (NHTSA). It is "only" with this specialized training that allows an attorney to effectively cross examine a police officer on the stand about how he "screwed" up when he was giving you the test. 





Hire a DUI lawyer from the best DUI law firm and get the dui facts about the drunk driving myths. A quick story, the other day I was in a DMV hearing and I was cross examining the officer. Some of the highlights made me almost laugh outload. The officer could not identify the 3 SFST. As you read this you probably already know that they are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). As we went through the cross examination the officer could not identify the 3 validating clues in the HGN, he did not know how many clues were needed to believe that my client might have been over a .08. The Officer did not know the 8 clues associated with the WAT, in fact he made up other clues as he went along. I did finally start to smurk as he failed to understand the OLS or the 4 clues associated with that test. Hire a DUI lawyer from the best dui law firm and get the dui facts about the drunk driving myths. What was really funny was that 2 weeks after the officer arrested my client he went to a SFST class. This was when my cross really got interesting. As we went through his failures in giving the SFST he had to agree that he gave the SFST wrong on several, several occasions. I also have over 15 hours of training on the Datamaster DMTbreath machine. I am the owner of the Alcosensor IV PAS breath machine which is the most widely used roadside breath tester in So. Cal.





We are a nationally-recognized firm lead by a highly experienced DUI lawyer. We are not former prosecutors and am proud to say we never sought to prosecute somebody just to receive a paycheck. The Law Offices of Patrick J.Silva serves clients from offices in Los Angeles, Orange County, Riverside,San Bernardino and San Diego. , We are supported by a former law enforcement officer who conducts our in-field interviews, and a former California DMV license suspension hearing officer. We specialize in representing those clients charged with misdemeanor or felony drunk driving (driving under the influence of alcohol or driving under the influence of marijuana or drugs) and the associated DMV license suspension. 





Nationally-known and recognized by other dui attorneys across the United States, Mr. Silva is a Western State University College of Law School graduate and is on the Board of Directors of a multi-million dollar corporation. Mr. Silva is active in teaching other lawyers this highly specialized field of DUI defense. Mr. Silva teaches other lawyers blood alcohol science, breath science, field sobriety test, legal motion writing, and trial defense. . His is a member of the California DUI Lawyers Association and the National College for DUI Defense. 


DUI Audio Lectures 
by Arraignment
Length 1:25
1:21

GET YOUR LICENSE BACK ASAP!


specializing in dui defense


Imagine this story, I am sitting in my office and Mr. Z comes to discuss his dui case. He tells me that he got this dui on a Saturday night after he was coming back from a Dodger game. Then I tell him the bad news, your a commercial driver and because of this dui you could lose your class A for 1 year. He has no idea that a dui on a Saturday night could end up destroying his truck driving career. Mr. Z tells me his wife does not work and if he loses his job they will be homeless since driving a truck is all he knows how to do. Long story short, I lose the DMV hearing  but I overturn it with a legal maneuver in court which then overturns the 1 year license suspension.  Thus, job saved! injury





These are examples of what my hard work has accomplished and not an indications of future results. 





THIS IS WHAT ANOTHER HAPPY CLIENT SAID:  The Greatest Lawyer Got my Dui Car crash case Dismissed

Posted by a client
July 18, 2016

Dr. Patrick Silva is the best in this line of work. He has mastered his craft. I got in a wreck while drinking and driving and I blew 1.5. On the scene cops found beers and they also had an eye witness from the crash scene. I did my research and came across Dr. Silva. I set up an appointment for free consultation. Dr. Silva gave me hope and helped me calm my anxiety. After talking with Dr. Silva I was confident he can get my case dismissed. He kept me updated on my case all the time. Anytime I had a question, he was always there to provide me with an answer. Dr. Silva went on all my court hearings for me and got my case dismissed. He really worked hard and put a lot of effort on the case. People around me used to tell me "lawyers just want the money and they don't anything for you". Dr. Silva proved all the people around me wrong. Because of Dr. Silva, I got to keep my job and have a clean record. Dr. Silva actually cares for his clients. I'm glad I made a right choice picking you for my case. Dr. Silva had that most knowledge out of all the other lawyers I consulted with. I'm very happy Dr. Silva’s hard work got my dui car crash with case 1.5 reading dismissed. Thank You so much Dr. Silva for getting my case dismissed. injury





Another Great Result:   April 2016:  Johnny was accused of a 2nd time dui with a BAC of .14.   We filed a Motion to Suppress under Penal Code 1538.5 believing that the officer did not have probable cause to stop Johnny based on an anonymous person calling 911 and alleging Johnny was dui. RESULT:  CASE DISMISSED





MORE SUCCESS ON A 2ND TIME DUI




Kevin was charged with a 2nd time dui claiming he was under the influence of marijuana while still  on probation for his first dui. We fought the case all the way to trial and at trial readiness the DA dismissed the charges. Kevin ultimately pled to 2 traffic infractions.   This result was due to our ability to fight for our clients and Kevin's willingness and belief in his innocence.  


This is what Kevin had to say:  "Awesome lawyer, got me off the hook;  Mrsilva was fighting for my second dui which I was not going to accept eventually got my case dismissed with a infraction. 
He takes the time to explain the situation for you and will answer your calls anytime you have any questions  I used him because of his high reviews and it was worth it  I highly recommend him if you are in the Southern California area."





3rd Dui in less than ten years BY CLIENT DANIEL N. 

I was charged with a 3rd DUI in ten years, driving on a suspended license, and violation of my summary probation. With a BAC of .14 and two previous DUI's within ten years, in two different counties, attorney Silva not only won my DMV hearing, but then proceeded to reduce a 3rd DUI in ten years charge, in Riverside County, down to a misdemeanor drunk in public with no violation of probation, no jail time, and a fine of 500 dollars. Attorney Silva handled my case with the utmost professionalism and proposed an ambitious plan of attack. Attorney Silva advised that we go straight to trial and that he was confident he could beat this. Taking into account his decade plus years of experience in the field, I put my faith in Attorney Silva's judgment and expertise, and I ponied up for trial. A few weeks before the trial, the DA contacted Attorney Silva and Silva negotiated what we would plead to. If you are willing to step into the arena, Attorney Silva will champion your cause. In summation, Attorney Silva has the gumption and the expertise to secure you the best possible outcome of your case.





Pulled a rabbit out of his hat  BY CLIENT JASMINE 

I was charged with my first DUI and was not thinking about getting an attorney. I had planned on just handling it myself but then I came across Mr. Silva who seemed very helpful. I was almost certain I would get off with a "wet and reckless", but come to find out Mr. Silva got my DUI COMPLETELY dismissed. I couldn't believe the good news I had gotten. I am so grateful for his services, if it wasn't for him I wouldn't have been able to continue my journey to becoming a Registered Nurse. Patrick John Silva pulled a rabbit out of his hat, I don't know how he did it but I am beyond grateful!!





Just very blessed! BY CLIENT MARK M. 

I was facing a 3rd DUI charge, 180 days in jail (at least) and severe fines...after Mr Silva did his due diligence, continuous homework on the entire charges, and realized what was at hand, he made magic happen. Let me back up though, from the beginning he really wanted to know about me, what I did for a living and what the goal was for me. He asked about every aspect of my family and how we could make this better for my entire situation. The desire to truly know what was going on with me and my family made it personal and made me realize he truly wanted the best for me...not because of what I did but because he saw a greater good for what I was doing with my life.
Mr. Silva always showed on my behalf and kept me informed with everything that was going on, and made things clear...he also kept me at ease without every having to worry about a thing! I always felt he was very genuine and did exactly what he said he was...and he had my 3rd DUI charge reduced to my 1st, fines reduced and my jail time reduced by over 100 days! Ultimately, I couldn't be more happier with the outcome of my case and the overall experience with Patrick Silva. I would highly recommend Mr. Silva to anyone needing assistance with a DUI case.





ROMERO G:  was charged with an alleged .11 BAC after he was stopped for having no rear license plate. What made the negotiations even tougher was the fact Romero picked up a 14601 (driving on a suspended license) a few months after his dui.  We aggressively fought the charges and on day of trial we got the dui DISMISSED as well as a DISMISSAL on the 14601 and the only thing he pled guilty to was a traffic infraction for not having a license plate on his car, and this was in a Riverside County Courthouse.


CARLOS Z:  was charged with an alleged .21 dui after he was stopped for squealing his tires while doing a U-turn. We lost the DMV hearing which suspended his COMMERCIAL LICENSE for 1 year.  We filed a motion to suppress challenging the cop's reason for the stop. We were able to resolve the case by having Carlos plead to a wet/reckless BUT we had language in the plea bargain which overturned the dui suspension at the DMV.  Instead of not being able to drive his big rig for a year and losing his job, we were able to get Carlos back in his truck in less than 2 months.





CASE DISMISSED- 2nd time offender

I was facing a DUI charge and a driving on a suspended license charge. Five years previous to these charges I had also been arrested for another DUI. Being a second time offender I had my doubts that I would beat these charges. Mr. Silva was able to answer any questions I had which really helped me get through this depressive situation and my anxiety. If convicted I would have lost my job, yet the DA still was not willing to negotiate any type of deal that would prevent me from losing my job. Mr. Silva really made me confident that we would win even with my record so I decided to put my faith and trust in Patrick Silva and decided we would take my case to trial.
Mr. Silva put a great amount of time and effort studying my case as well as the evidence they had against me. The man knows what he is doing because a week before my trial began the DA called him with a deal I couldn’t believe! Both my DUI charge and my driving on a suspended license charge were dismissed! Instead I was issued a ticket for no front license plate and all other charges were dropped! I was astonished and could not believe when Silva told me the great news! He even reimbursed me the expert fees I had paid in advance in order to retain the forensic toxicologist experts in case we went through trial. Patrick Silva is a very intelligent, honest attorney that you can trust and rely on getting you out of trouble! I highly recommend Patrick Silva!!!!!








Well Respected DUI Trial Lawyer

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Approved by the State Bar of California to teach other lawyers certain aspects of blood science.

Patrick J. Silva Professional Law Corporation

Specializing in DUI Defense

Imagine this story, I am sitting in my office and Mr. Z comes into my office to discuss his dui case. He tells me that he got this dui on a Saturday night after he was coming back from a Dodger game. Then I tell him the bad news, your a commercial driver and because of this dui you could lose your class A for 1 year. He has no idea that a dui on a Saturday night could end up destroying his truck driving career. Mr. Z tells me his wife does not work and if he loses his job they will be homeless since driving a truck is all he knows how to do. Long story short, I lose the DMV hearing  but I overturn it with a legal maneuver in court which then overturns the 1 year license suspension.  Thus, job saved! 


The Greatest Lawyer Got my Dui Car crash case Dismissed


Posted by a client
July 18, 2016

Dr. Patrick Silva is the best in this line of work. He has mastered his craft. I got in a wreck while drinking and driving and I blew 1.5. On the scene cops found beers and they also had an eye witness from the crash scene. I did my research and came across Dr. Silva. I set up an appointment for free consultation. Dr. Silva gave me hope and helped me calm my anxiety. After talking with Dr. Silva I was confident he can get my case dismissed. He kept me updated on my case all the time. Anytime I had a question, he was always there to provide me with an answer. Dr. Silva went on all my court hearings for me and got my case dismissed. He really worked hard and put a lot of effort on the case. People around me used to tell me "lawyers just want the money and they don't anything for you". Dr. Silva proved all the people around me wrong. Because of Dr. Silva, I got to keep my job and have a clean record. Dr. Silva actually cares for his clients. I'm glad I made a right choice picking you for my case. Dr. Silva had that most knowledge out of all the other lawyers I consulted with. I'm very happy Dr. Silva’s hard work got my dui car crash with case 1.5 reading dismissed. Thank You so much Dr. Silva for getting my case dismissed.


Another Great Result:   April 2016:  Johnny was accused of a 2nd time dui with a BAC of .14.   We filed a Motion to Suppress under Penal Code 1538.5 believing that the officer did not have probable cause to stop Johnny based on an anonymous person calling 911 and alleging Johnny was dui. RESULT:  CASE DISMISSED. 


SOME REVIEWS FROM RECENT CLIENTS

3rd Dui in less than ten years: Past client DANIEL N. wrote these kind words.

I was charged with a 3rd DUI in ten years, driving on a suspended license, and violation of my summary probation. With a BAC of .14 and two previous DUI's within ten years, in two different counties, attorney Silva not only won my DMV hearing, but then proceeded to reduce a 3rd DUI in ten years charge, in Riverside County, down to a misdemeanor drunk in public with no violation of probation, no jail time, and a fine of 500 dollars. Attorney Silva handled my case with the utmost professionalism and proposed an ambitious plan of attack. Attorney Silva advised that we go straight to trial and that he was confident he could beat this. Taking into account his decade plus years of experience in the field, I put my faith in Attorney Silva's judgment and expertise, and I ponied up for trial. A few weeks before the trial, the DA contacted Attorney Silva and Silva negotiated what we would plead to. If you are willing to step into the arena, Attorney Silva will champion your cause. In summation, Attorney Silva has the gumption and the expertise to secure you the best possible outcome of your case.


Just very blessed!  BY CLIENT MARK M.

I was facing a 3rd DUI charge, 180 days in jail (at least) and severe fines...after Mr Silva did his due diligence, continuous homework on the entire charges, and realized what was at hand, he made magic happen. Let me back up though, from the beginning he really wanted to know about me, what I did for a living and what the goal was for me. He asked about every aspect of my family and how we could make this better for my entire situation. The desire to truly know what was going on with me and my family made it personal and made me realize he truly wanted the best for me...not because of what I did but because he saw a greater good for what I was doing with my life.
Mr. Silva always showed on my behalf and kept me informed with everything that was going on, and made things clear...he also kept me at ease without every having to worry about a thing! I always felt he was very genuine and did exactly what he said he was...and he had my 3rd DUI charge reduced to my 1st, fines reduced and my jail time reduced by over 100 days! Ultimately, I couldn't be more happier with the outcome of my case and the overall experience with Patrick Silva. I would highly recommend Mr. Silva to anyone needing assistance with a DUI case.





Pulled a rabbit out of his hat  BY CIENT JASMINE S.

I was charged with my first DUI and was not thinking about getting an attorney. I had planned on just handling it myself but then I came across Mr. Silva who seemed very helpful. I was almost certain I would get off with a "wet and reckless", but come to find out Mr. Silva got my DUI COMPLETELY dismissed. I couldn't believe the good news I had gotten. I am so grateful for his services, if it wasn't for him I wouldn't have been able to continue my journey to becoming a Registered Nurse. Patrick John Silva pulled a rabbit out of his hat, I don't know how he did it but I am beyond grateful!!


ROMERO G:  was charged with an alleged .11 BAC after he was stopped for having no rear license plate. What made the negotiations even tougher was the fact Romero picked up a 14601 (driving on a suspended license) a few months after his dui.  We aggressively fought the charges and on day of trial we got the dui DISMISSED as well as a DISMISSAL on the 14601 and the only thing he pled guilty to was a traffic infraction for not having a license plate on his car, and this was in a Riverside County Courthouse.


CARLOS Z:  was charged with an alleged .21 dui after he was stopped for squealing his tires while doing a U-turn. We lost the DMV hearing which suspended his COMMERCIAL LICENSE for 1 year.  We filed a motion to suppress challenging the cop's reason for the stop. We were able to resolve the case by having Carlos plead to a wet/reckless BUT we had language in the plea bargain which overturned the dui suspension at the DMV.  Instead of not being able to drive his big rig for a year and losing his job, we were able to get Carlos back in his truck in less than 2 months.


CASE DISMISSED- 2nd time offender

I was facing a DUI charge and a driving on a suspended license charge. Five years previous to these charges I had also been arrested for another DUI. Being a second time offender I had my doubts that I would beat these charges. Mr. Silva was able to answer any questions I had which really helped me get through this depressive situation and my anxiety. If convicted I would have lost my job, yet the DA still was not willing to negotiate any type of deal that would prevent me from losing my job. Mr. Silva really made me confident that we would win even with my record so I decided to put my faith and trust in Patrick Silva and decided we would take my case to trial.
Mr. Silva put a great amount of time and effort studying my case as well as the evidence they had against me. The man knows what he is doing because a week before my trial began the DA called him with a deal I couldn’t believe! Both my DUI charge and my driving on a suspended license charge were dismissed! Instead I was issued a ticket for no front license plate and all other charges were dropped! I was astonished and could not believe when Silva told me the great news! He even reimbursed me the expert fees I had paid in advance in order to retain the forensic toxicologist experts in case we went through trial. Patrick Silva is a very intelligent, honest attorney that you can trust and rely on getting you out of trouble! I highly recommend Patrick Silva!!!!!


Noman :  was charged with a 2nd time dui while still being on probation for his 1st dui. This case had an interesting legal issue in that the DA failed to properly prosecute him in a timely matter. He initially appeared at his original arraignment date but the case was not filed at that time. He later appeared in court an additional few times but the case was still not filed.  RESULT: We brought a motion to dismiss his case based on a speedy trial right violation and we won!  Case Dismissed!


Posted by Tim, 25 days ago

Overall rating
 Excellent

I recommend Patrick Silva.

When I received mu DUI I reached out to another lawyer I knew and he referred me to Patrick Silva based on his experience and reputation in the legal community. I believed I had a case and after reviewing the details Mr. Silva felt strongly in supporting me as well. My case was dismissed after going to trial. It was a very stressful situation for me and Patrick went above my expectations throughout the entire process. I found Mr. Silva to be very ethical, honest, and professional. The trial process was tedious at times and Mr. Silva is extremely confident and knowledgeable which made me very relieved to watch him work on my behalf. The Judge, court room staff, and even the DA all showed great respect for him. To the jury he came across as an advocate for justice. Mr. Silva never made me feel like my case wasn't important. He was very responsive to my calls and kept me informed. I believe many attorneys will take your money, give you some weak advice, and get ready to move onto the next case, but Mr. Silva was extremely thorough and worked on the many details of my case until the very end. I was definitely happy he was on my side watching him work in the court room. I highly recommend Patrick Silva to anyone looking for an attorney and, although I don't plan on ever needing his services again, he would be my first call without hesitation. He's a worker and a fighter and has my respect for what he has done to help me and my family.

Got my Case Dismissed!





DANIEL N. WROTE THESE KIND WORDS ABOUT OUR SERVICES:





3rd Dui in less than ten years

I was charged with a 3rd DUI in ten years, driving on a suspended license, and violation of my summary probation. With a BAC of .14 and two previous DUI's within ten years, in two different counties, attorney Silva not only won my DMV hearing, but then proceeded to reduce a 3rd DUI in ten years charge, in Riverside County, down to a misdemeanor drunk in public with no violation of probation, no jail time, and a fine of 500 dollars. Attorney Silva handled my case with the utmost professionalism and proposed an ambitious plan of attack. Attorney Silva advised that we go straight to trial and that he was confident he could beat this. Taking into account his decade plus years of experience in the field, I put my faith in Attorney Silva's judgment and expertise, and I ponied up for trial. A few weeks before the trial, the DA contacted Attorney Silva and Silva negotiated what we would plead to. If you are willing to step into the arena, Attorney Silva will champion your cause. In summation, Attorney Silva has the gumption and the expertise to secure you the best possible outcome of your case.  DANIEL N.

Posted by Katherine, 2 months ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.

Attorney Silva is awesome. His initial impression was very personable and quickly responded to my call. He always kepted me in the loop, gave me all the information i needed. He also worked with me with the fixed price/fee for services with a simple low monthly payment. Although during a business time with the holidays he was able to get my case cleared and dismissed within 5 weeks. Im very appreciative, and happy that he could help me. Thank you!

Great lawyer

Posted by Kris scott, a DUI client, 11 months ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.
I have previously worked with 1-2 lawyers.

Patrick was great. It was my second DUI I was facing jail time. He kept me informed through the whole case.and gave me great payment plans. He even got my case dismissed . He's the best lawyer.

DUI\DWI

Posted by samuel, a DUI client, about a year ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.

Mr. Silva was very honest with me from the day I met him. He did not guarantee anything, but made me feel comfortable that he would do his best. The results proved he is a man with integrity. My DUI case was dismissed by DMV, and the courts, due to no probable cause. This literally saved my life, because this had a great impact on my job. I was able to continue work without any issues thanks to Mr. Silva and him team. I would recommenced anyone that finds themselves in a DUI\DWI situation please contact the office of Mr Silva and his team first. #thebestlawyer

Patrick is "a lawyer's lawyer"

Posted by Dianna, a DUI client, about a year ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.

Patrick is the only DUI attorney I would consider referring my clients to. He is extremely knowledgeable, thorough and tenaciously defends his clients. He has vast experience in DUI law, and uses his experience and knowledge to zealously represent his clients. His professionalism has given him an excellent reputation in the legal community.

Top of his game!

Posted by Memo, a DUI client, about a year ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.

Pat Silva represented me on a DUI case and was very professional. It was a great to see how respected Pat is when he walks into the court room. Pat Silva kept my license from being suspended. I recommend him to all my clients.

Fantastic lawyer!

Posted by Barbara, a DUI client, 2 years ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.
I have previously worked with 3-5 lawyers.

Patrick represented me at several court hearings. I was impressed with his professionalism and knowledge of the law. He was always willing to take the time to explain to me what was going on. It is important to have a lawyer who does not leave you with the feeling that there is somewhere more important that he needs to be. Thank you so much for the work you did on my behalf Patrick.

Happy to have hired Mr. Silva

Posted by a DUI client, 2 years ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.
I have previously worked with no lawyers.

Mr. Silva did an excellent job representing me. He was able to plea down my DUI to a lesser Wet and Reckless. He was diligent in pursuing the best outcome for me. He and his office did a good job keeping me informed as the process moved along. Mr. Silva is professional and tenacious. I felt his advice was good and his performance on my behalf well done. He is easy to work with and explains everything clearly and completely.

Excellent DUI Lawyer

Posted by a DUI client, 2 years ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick 1-3 years ago.
Patrick handled my DUI & DWI matter.
I have previously worked with no lawyers.

Mr. Patrick J Silva, was an excellent lawyer from beginning to end. Very knowledgeable about DUI laws and even helped me out financially because I was able to do a monthly plan. Though my case took over a year, he fought on my behalf and got the outcome that I was very satisfied with. If you find yourself facing a DUI charge and need a lawyer who understands and cares do not hesitate to call Mr. Patrick J. Silva

Mr Silva

Posted by Rudy, a Criminal Defense client, 3 years ago


Overall rating
 Excellent
Trustworthy
 Excellent
Responsive
 Excellent
Knowledgeable
 Excellent
Kept me informed
 Excellent

I recommend Patrick Silva.
I hired Patrick more than 3 years ago.
Patrick handled my Criminal Defense matter.
I have previously worked with 6-10 lawyers.

he not only produced what he said he would I plan on usisng his service again

FRANK N.  was charged with a marijuana DUI. We prepared the case for trial , did our homework, filed discovery request, and on the day of motions the dui charge was dismissed!  Frank pled to a simple marijuana possession as an infraction.

Luz R. was charged with an alcohol related DUI after the CHP found her sleeping on the side of the freeway and several callers had phoned the police to report a driver weaving all over the road. RESULT:  DUI dismissed.

Jeffery B. was accused of a .27 BAC on a second time DUI resulting from a traffic accident and hit and run. He was also charged with a violation of probation for the 1st DUI. RESULT: The 2nd time DUI was dismissed based on the 6th Amendment and his probation on the 1st DUI was terminated.  This was accomplished by his San Bernardino DUI Lawyer who knew the DUI facts and drunk driving myths.

Eric V. was charged with a .33 BAC on a 3rd time DUI. RESULT: We won the DMV hearing on a Title 17 violation and saved his license from a minimum suspension of 6 months.

Joe B. was charged with a .29 BAC on a 1st time DUI. We filed and heard a motion to suppressunder penal code 1538.5. RESULT: The judge ruled in our favor and dismissed the case. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer.

Hass E. was charged with a 2nd time DUI while he was still on probation for his first. The DA alleged that he had a .28 blood BAC, an accident at over 100 mph, and charged him with a VOP. Before trial the DA wanted Mr. E to do 120 of county jail, 90 days of a SCRAM braclet, and a $2000 fine. TRIAL: We started trial and after we excluded some evidence through the Motion in Limine process the DA re-evaluated their case. RESULT: DUI dismiss, Mr. E pled to a wet/reckless, NO jail time, NO scram, NO VOP, and a $800 fine. ~~This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer.

Daniel S. was charge with a .20% BAC after he had a solo car crash. Based on my highly regarded skills as a San Bernardino DUI Lawyer I was able to get his case DISMISSED IN COURT  AND I WON THE DMV HEARING.  This was the result of skill and hard work and of course I found a 4th Amendment violation.

Christopher B. was charged with a 3rd time DUI. His 2 priors were in another state. As his  San Bernardino DUI Lawyer we filed a "Motion to Strike the Priors" asserting that the out of state dui's did not meet the California equivalency test. RESULT: His out of state of priors were stricken from the record, so instead of facing a 3rd time DUI in California, he is now only facing a 1st time DUI. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer

Angelina T. was charged with a DUI with an alleged BAC of .17 after she had crashed into a police station. RESULT: We won the DMV hearing and saved her license. The court issues was resolved for a no-jail time plea. This only could have happen as a result of the hard work from his San Bernardino DUI Lawyer

Samuel T. was charged with a DUI with an alleged .14 BAC after he was stopped for swerving while exiting the freeway. RESULT: We subpoenaed the dash cam video which helped up win the DMV hearing and we were able to get the entire court case dismissed based on an illegal stop.  Again the results  of his San Bernardino dui lawyer.  

Joe M. was charged with a .079 PAS and a .06 blood BAC after he had a solo accident on the freeway. This was a 2nd time DUI. RESULT: The DUI charges were dismissed after he pled guilty to 2 traffic violations. Another win for the San Bernardino DUI lawyer.

Wesley C. was accused of a .19 BAC, having a loaded gun in the car and was pulled over for allegedly weaving. RESULT: His San Bernardino DUI lawyers filed a 1538.5 motion to suppress. On the day of the hearing we got the DA to dismiss the DUI and gun charge in exchange to a plea of reckless driving under cvc 23103.5. One more win from the San Bernardino DUI lawyer.

Melissa W. was charged with a .23 BAC on a 2nd time DUI. As her San Bernardino DUI Lawyers we  filed a motion challenging the officer's reason for the stop after he alleged she "straddled" the lanes. RESULT: Case Dismissed. Another happy client from the hard work of the San Bernardino DUI Lawyer

Joel D. was charged with a .18 blood BAC after he had a car accident on the freeway at 2:00 in the morning. Joel had poor field sobriety test and allegedly a strong odor of alcohol on his breath. RESULT: As his San Bernardino DUI lawyer we won the DMV hearing and saved his license and his ability to get back and forth to work. We showed that the BAC result was ambiguous as to the date of testing and the date of reporting.  San Bernardino DUI Lawyers saved his DMV drivers license.  

Dennis H: was charged with a .10 BAC after he allegedly failed the field sobriety tests and had a strong odor of alcohol on his breath. RESULT: ALL DUI charges dismissed. Dennis plead guilty to a moving traffic violation. We also overturned his loss at the DMV and got his license back. Only the experience from the best dui law firm  and the best dui lawyers in San Bernardino could have achieved a dismissal like this and to overturn the DMV loss.

Jacob Q: was charged with a DUI after he had a solo car crash. The police arrived and after investigation they arrested Jacob. RESULT: At the DMV hearing I was able to show that the police officer could NOT establish that Jacob drove a vehicle within 3 hours of the blood test. Thus, I saved his license, the increased cost of auto insurance, and the 10 year mark on his driving record.  More work from San Bernardino Dui lawyer.

Danielle M: was charged with a .18 blood BAC after she was stopped for weaving. After some considerable time and effort San Bernardino DUI lawyers were able to plead it down to a wet/reckless under 23103.5

Diana L: was charged with a .10 blood BAC. During the discovery process her dui lawyers found out that the phlebotomist had done 2 blood draws at once and may have mixed up the vials during the labeling process. What was also odd was that our client blew a .06 at the station after the blood draw on a PAS breath unit. RESULT: case reduced to a dry reckless and the dui charges were dismissed. San Bernardino Dui lawyers were also able to overturn the previous loss at the DMV and reinstate her full license.

Michael T: was charged with a DUI MARIJUANA: RESULT: We filed a motion to suppress the blood result on a 4th Amendment violation of Michael's constitutional rights, we also did extensive discovery for the Gas Chromatograms on the blood test results. We finally got the DUI charges dismissed in exchange to a plea on a "dry reckless". More fine work from San Bernardino DUI lawyer.

Marcus A. was charged with a .15 blood BAC after he had a 3 car accident on the freeway and after he was alleged by the other drivers to have been the cause of the collision. RESULT: We won the DMV because they could not prove the allegations under vehicle code 23152(b) as having the blood test performed within 3 hours of the time of driving. This saved his license and his job.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Elke C. was charged with a .25 BAC after she alleged drove her car off a small hill into a river bottom. RESULT: We won the DMV hearing and saved her license after we showed that the officer could not prove her blood test was completed within 3 hours of driving. More fine work from San Bernardino DUI lawyer.

Moises K. was charged with a .10 BAC after he allegedly REFUSED to give a breath sample. The DMV instituted actions to suspend his license for 1 year. RESULT: At the hearing we proved that he did not refuse and we saved him his license and his job. At the hearing we showed that the FST were not done correctly by the officer and put on our own proof as to our client's medical issues. COURT RESULT: All DUI charges were dismissed in exchange for a plea to a dry-reckless. More fine work from San Bernardino DUI lawyer.

Mauricio C. was charged with a .12 BAC after a person called 911 to report that the thought he was DUI. We did a motion to suppress under penal code 1538.5 challenging the officer's reason for the stop under the case law of People v. Wells. RESULT: DUI charges dismissed, client plead to guilty to a 23103.5, and we are currently appealing the denial of the motion to suppress.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Eric H. was accused of refusing to take a blood test, several officers had to tie him down in order to draw blood, a .18 BAC. RESULT: We won the DMV Refusal hearing which saved him a year of suspension and got him no jail time on his court case. More fine work from San Bernardino DUI lawyer.

Tricia J. was accused of a .13 BAC. At the DMV Hearing we challenged the validity of the probable cause. RESULT: We won the DMV hearing and saved her license.

David R. was accused of a .12 BAC. At the DMV Hearing we challenged the lawfulness of the arrest. RESULT: We won the DMV Hearing and saved his license. More fine work from San Bernardino DUI lawyer.

Arnel B. Was charge with DUI after the police stopped him for allegedly speeding. We filed a motion to suppress under PC 1538.5 challenging the officer's alleged reason for the stop was not satisfied by the use of his LIDAR Gun. RESULT: Both DUI charges dismissed,client pled to a speeding infraction and no turn signal infraction. Both were no point counts with the DMV.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Amalik A. was charged with a 2nd time DUI while he was still on probation for the 1st offense. He had an auto accident, a BAC of .17, and a high level of Marijuana in his system. RESULT: All DUI counts dismissed, he pled to a reckless driving under cvc 23103. More fine work from San Bernardino DUI lawyer.

Bart D. was charged with a DUI after having a BAC of .20. It was alleged that Bart had been swerving and almost hitting a police officer head on, running into the curb, and vomited all over himself. We filed a 6th Amendment motion challenging the violation of his rights to a speedy trial. RESULT: After hearing the motion in open court the case was Dismissed.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Marvin M. was charged with a Drug DUI, allegedly being under the influence of 4 types of pain medication after he was observed swerving across several lanes of travel. RESULT: DUI dismiss/reduced to 2 driving infractions. Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Cyerra R. was charged with a DUI as a minor since she was only 18 years old. Her BAC was alledged to be a .14. RESULT: We won the DMV hearing and saved her license from 12 months of suspension. More fine work from San Bernardino DUI lawyer.

Eric S. was charged with DUI after having a .10 BAC. It was alledged that he was speeding, doing 65mph in a 35 mph zone, that he made a wide right turn almost hitting a curb, almost lost control, and did not respond the the officer's loud speaker to pull over. RESULT: WE TOOK THIS TO TRIAL AND GOT 12 PEOPLE TO VOTE NOT GUILTY ON BOTH COUNTS.

Richard P. was charged with a DUI after having a BAC of .13 and a PAS machine reading of .14. RESULT: Richard pled to a wet-reckless under cvc 23103.5, this was achieved after an extensive cross examination of the officer at the DMV hearing in which he admitted that Richard did not show any signs of mental or physical impairment. Richard elected to take this plea instead of proceeding to a jury trial. More fine work from San Bernardino DUI lawyer.

Romney N. : was accused of a DUI with a blood alcohol of .22. We fought the case on the officer's inability to prove that he had been driving within 3 hours of his blood test. RESULT: We beat the DMV hearing and saved his license.

Monica S. : was accused of a DUI with a blood alcohol of .20. The issue in her case was that she was not the driver. RESULT: After the conclusions of 3 DMV hearings in which we crossed examined the officer and we presented our own independent witness, we Won the DMV hearing and saved her license.

Daniel R. was charged with a DUI with an alleged BAC of .10. The issue in his case was they could not prove his driving was within 3 hours of his blood test. RESULT: based on the facts the DUI was dismissed and he pled to a misdemeanor vandalism. More fine work from San Bernardino DUI lawyer.

Ricardo F. was charged with a 2nd DUI and an alleged BAC of .15. We challenged the stop with a 1538.5 motion to suppress. At the hearing we showed that the officer had lied in contrast to what he previously told the DDA. RESULT: case reduced to a reckless driving cvc 23103.5

Deborah P. was charged with a DUI and a high BAC of .23 allegedly picking up her children from school drunk. RESULT: No jail time. Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Nicholas P. was 18 years old and charged with an alleged .07 BAC on a first time DUI. He was stopped for allegedly doing 90 mph on the freeway. As an underage driver his legal limit was zero tolerance, a .01. RESULT: Case dismissed after he pled to a DRY reckless.

More fine work from San Bernardino DUI lawyer.

Mario R. was charged with a DUI with an allegation that he had Marijuana in his system. RESULT: Case Dismissed after he pled to 2 traffic violations.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Bobby A. was charged with a DUI and a BAC of .07 after the officer allegedly followed Bobby out of a bar in Fontana. RESULT: DUI dismissed reduced to running a stop sign.

ROSALIO R. was charged with a DUI and a BAC of .07. RESULT: Case dismissed.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Ray R. was charged with a .07 DUI as a minor. We proceeded to court and the matter was heard as a bench trial. RESULT: Client acquitted of all charges. David M. was charged with a DUI. RESULT: Case reduced to reckless driving under cvc 23103.5  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Gary A. was charged with a 2nd time DUI and an alleged BAC of .11. It was alleged that he did not immediately stop for the officers and he had very poor Field Sobriety Test. We took the case to trial. RESULT: After nearly 3 days of jury deliberations they were deadlocked. However, they ultimately convicted my client. The good news is that he only had to do 4 days of community service in contract to the 40 days of jail time the DDA wanted prior to trial.  Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

Hailey L. was charge with a DUI with an allegation that she was a .14 BAC. The problem was that she was a minor and her legal limit is .01. We filed a 1538.5 motion to suppress because under the community caretaker exception to 4th Amendment could not be satisfied by the officer under the controlling case of People v. Madrid. RESULT: The prosecution stipulated to a finding of NOT GUILTY on the 23152(b) count and 23136(a) count, dismiss 23152(a), that her blood was not over .01, and she pled to 23103.5. This allowed us to send a certified copy of the docket up to mandatory action in Sacramento and have her 1 year suspension lifted from her driver's license. David M. : DUI RESULT: Reduced to wet/reckless.   Again , through the dedication of the San Bernardino Dui Lawyer we were successful on this dui case.

J. Castro. was charged with a .08, alleged to have been weaving. RESULT: Dismissed.  More fine work from San Bernardino DUI lawyer.

Frank N. was charged with a DUI marijuana. After he was stopped by the police he admitted to smoking a 'few' hours earlier but his passenger stated he had just smoked 10 minutes ago and that Frank was a 'pot head'.   Frank tried to handle the case by himself but the DA told him they would not make him an offer other than pleading to a dui.   I came into this case and immediately starting prepping for trial. I sent out extensive discovery and filed 2 separate motions.  RESULT:  DUI DISMISSED. Frank plead guilty to a simple possession of marijuana as an infraction and only had to pay a $75 fine.   ULTIMATE RESULT: This saved his job!

Jorge A.O.: was charged with a .10 BAC dui after he was stopped for bad driving. RESULT:   DUI case DISMISSED, Jorge pled guilty to two traffic infractions, speeding and not using his turn signal, both were infractions.

JAMES A. was charged with a DUI MARIJUANA after he was  stopped for bad driving. RESULT. CASE DISMISSED!


SAIPETI M. was charged with DUI PRESCRIPTION DRUGS after he was pulled over for speeding at over 100 M.P.H.  He allegedly had morphine and hydrocodone in his body. RESULT : After extensive research and a report from a forensic toxicologist we obtained the result of a DISMISSAL of both the DUI charge and going over 100 mph as a misdemeanor in exchange for a simple plea to speeding as an infraction.


ROMERO G:  was charged with an alleged .11 BAC after he was stopped for having no rear license plate. What made the negotiations even tougher was the fact Romero picked up a 14601 (driving on a suspended license) a few months after his dui.  We aggressively fought the charges and on day of trial we got the dui DISMISSED as well as a DISMISSAL on the 14601 and the only thing he pled guilty to was a traffic infraction for not having a license plate on his car, and this was in a Riverside County Courthouse.

CARLOS Z:  was charged with an alleged .21 dui after he was stopped for squealing his tires while doing a U-turn. We lost the DMV hearing which suspended his COMMERCIAL LICENSE for 1 year.  We filed a motion to suppress challenging the cop's reason for the stop. We were able to resolve the case by having Carlos plead to a wet/reckless BUT we had language in the plea bargain which overturned the dui suspension at the DMV.  Instead of not being able to drive his big rig for a year and losing his job, we were able to get Carlos back in his truck in less than 2 months.


B. V: was charged with a 3rd time dui and a violation of probation on her second dui. Her alleged BAC was a .20 and accused of causing an accident. The DA originally wanted her to plead to a dui and spend 180 days of straight time in county jail.  RESULT:  dui dismissed, no jail, no fine, no violation of probation on her 2nd dui, after she plead to a cvc 23103.5.


Mark M. was charged with a 3rd time dui with the 2 priors being from another state. It was our vast knowledge of the dui laws that allowed us to "strike" the out of state priors and turn this 3rd time dui into a 1st time dui.  In essence, he went from a 180 days of straight jail time down to 20 days of house arrest. Our skill level made all the difference.


Henry C. was under 21 at the time of his .08 dui case which involved an accident. Since he was under 21 his legal limit was a .01 and if the dmv ruled that he was over the .01 limit they could then take his license away for 1 year.  We lost the dmv hearing so they suspended his license for the 1 year. However, through the court process I was able to overturn the dmv loss and get him back on the road driving legally.







* This is not a guarantee or indication of the outcome to your case, but an illustration of what could happen when you combine hard work with immense knowledge.*