The Role of Search and Seizure in The Prosecution of DUI Cases

What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4^th amendment to the Constitution which provides as follows:

“[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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Thus, it would appear from a plain reading of the text, that all searches conducted under color of law would require a warrant.  However, there are at least seven accepted exceptions to warrant requirement, and many of them come into play in various ways in a DUI case.

To fully understand this, three relatively arbitrary categories of DUI cases could be created; the first is the most typical DUI case which starts with a moving vehicle that is stopped by the police.  The second category would include those cases where the motorist has already stopped their vehicle, such as when the motorist has been involved in an accident, fallen asleep or is found in a parking lot.  The third category would be those cases where the motor vehicle is found unoccupied, and the police find the motorist outside of their vehicle.  Relative to the issue of search and seizure there is a great deal of overlap in these cases, but the S&S issues are also a little bit different for each.

With a moving vehicle, the case begins not with a search but with a sort of seizure, that is, at least in a manner of speaking, the motorist’s vehicle is “seized” in that the police order the vehicle to stop, and the vehicle is not released until the police contact is completed.  In order to stop a motor vehicle, it is generally understood that the police must have either observed a violation of the motor vehicle code, or have reasonable cause to believe that criminal activity is taking place. While this stop of the motor vehicle naturally includes the driver, there is also a separate S & S event if and when the motorist is asked to step from the motor vehicle. At this time the motorist is effectively seized at which point the police must have cause to believe that the motorist has committed a crime, in this case, the crime of intoxicated driving.  The next seizure involves the arrest of the motorist, where the police must have probable cause.  Subsequent to the arrest, we have the likely search and seizure of either a breath or blood sample.

When the motorist’s vehicle has already come to a stop we skip the seizure of the vehicle, and the police contact looks much more like a Terry search or event.

There is also the category of cases where the motorist has abandoned the vehicle and is later found inside a home.  This, of course, brings with it a whole new category of search and seizure, and different laws apply.

As a backdrop to the fourth amendment primer, the protections that were originally represented by this amendment to our constitution have been significantly vitiated over the decades as the exceptions to the warrant requirement have swallowed the rule, and even where the protections exist, suppression of the unlawfully seized evidence is no longer the remedy.