I was recently asked to talk to a group of attorneys about “hot topics” related to the criminal prosecution of impaired driving. Those of you who practice in the field are doubtless better equipped than I am to identify those topics. If pressed, I’d put these items on the list: (1) how the two-year statute of limitations applies to misdemeanors charged by magistrate’s order; (2) the admissibility of expert testimony by law enforcement officers, particularly regarding horizontal gaze nystagmus; (3) the admissibility of the results of warrantless blood tests; and (4) the appropriate remedy for statutory violations related to a defendant’s arrest and pre-trial detention. While the state supreme court has yet to issue its opinion regarding the statute of limitations issue in State v. Turner (discussed here) and neither the court of appeals nor the supreme court has opined about the admissibility of horizontal gaze nystagmus testimony following the 2011 amendment of Rule 702, recent court of appeals cases address both of the remaining issues. Warrantless blood tests. The United States Supreme Court held in McNeely v. Missouri, ___ U.S. ___, 133 S. Ct. 1552 (2013), that the dissipation of alcohol from a person’s body did not create a per se exigency in every impaired driving case that excused the requirement for a warrant authorizing the withdrawal of a defendant’s blood for analysis. Instead, whether a warrant is required or excused by an exigency must be determined based on the totality of the circumstances. If the time required to obtain [...]
Faculty Coordinators
