Georgia DUI Cases of Note

  

Los Angeles v Patel - How long can OSAH ignore the exclusionary Rule

Friday, July 24, 2015

DUI administrative suspensions and 4th AmendmentGeorgia DUI cases have two legal tracks in two separate judicial bodies. First, the DUI is filed, plead and/or and contested in the criminal courts, such as Local Municipal Courts, Recorders Courts, Probate Courts, State Courts and Superior Courts. Criminal courts determine criminal guilt and criminal sanctions including jail time, fines and probation conditions. The second lesser known track is the Administrative License Suspension Hearing (ALS). All DUI arrestees who blow over the legal limit or refusal testing are supposed to be issued a notice of an administrative license suspension.  The Driver has a right to request a hearing to challenge the Administrative License Suspension. The hearings for the Administrative License suspensions are held at the Office of State Administrative Hearings (OSAH). The hearings are presided by Administrative Law Judges (ALJ). 

Many of these ALJs, though not all, have taken the position that the exclusionary rule, or the rule that excludes evidence in criminal cases that violate the 4th Amendment to the Constitution prohibiting unreasonable searches and seizures, does not apply or is outside of the statutory scope of an ALS hearings.  See, Patel v. DDS, OSAH-ALS-1511892-60-MALIHI (May 7, 2015); Jones v. DDS, OSAH-DPS-ALS-1516390-55-WOODARD (April 28, 2015); Anonymous v. DDS, OSAH-DDS-ALS-1101047-38-Schroer (Aug 31 2010)

The logic of the ALS Court has been that the exclusionary rule of the 4th Amendment is not constitutionally mandated, but rather is “a judicially created means of deterring illegal searches and seizures.” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). Therefore, it does “proscribe the introduction of illegally seized evidence in all proceedings,” but applies only where its “deterrence benefits outweigh its ‘substantial social costs.’” Id. (quoting United States v. Leon, 468 U.S. 897, 907 (1984)); State v. Thackston; 289 Ga. 412 (2011)

Because the exclusionary rule precludes the introduction of reliable and probative evidence, it imposes a “‘costly toll’ upon truth-seeking and law enforcement objectives.” Pa. Bd. of Prob. & Parole, 524 U.S. at 364. Given these significant costs, proponents of the rule’s application to proceedings other than criminal trials face a “high obstacle,” and courts have been reluctant to apply the rule beyond the context of criminal trials. Id. at 363, 364–65; Thackston, 289 Ga. at 415. See Pa. Bd. of Prob. & Parole, 524 U.S. at 369 (holding that the exclusionary rule does not apply in a parole revocation hearing); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); United States v. Janis, 428 U.S. 433, 453–54 (1976) (holding that the exclusionary rule does not apply in a civil tax proceeding); United States v. Calandra, 414 U.S. 338, 349–50 (1974) (holding that the exclusionary rule does not apply to grand jury proceedings). Although the Georgia Court of Appeals has held the exclusionary rule applicable in certain “quasi-criminal” proceedings, such as civil forfeiture actions, Pitts v. State, 207 Ga. App. 606 (1993), the exclusionary rule has never been held to apply in administrative appeals of driver’s license suspensions or analogous proceedings in Georgia. See Thackston, 289 Ga. at 415.

 Applying the exclusionary rule in ALS proceedings would exact a considerable social cost by interfering with the state’s means of combating drunk driving, which the U.S. Supreme Court has repeatedly recognized as an important state interest. See, e.g., Missouri v. McNeely,133 S. Ct. 1552, 1565 (2013); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990). Moreover, implementation of the exclusionary rule would jeopardize the ALS hearing’s purpose in providing “a quick, informal procedure to remove dangerous drivers from Georgia’s roadways and thereby protect public safety.” Swain v. State, 251 Ga. App. 110, 113 (2001); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (exclusionary rule incompatible with civil, administrative nature of civil deportation proceedings).

In contrast with the enormity of the social costs associated with applying the exclusionary rule in ALS proceedings, the deterrence benefits of applying the exclusionary rule in such proceedings are slight. As the deterrence benefits of the exclusionary rule are fully realized by its application in concurrent criminal proceedings, its use in ALS proceedings would have a de minimis incremental deterrent effect. See Pa. Bd. of Prob. & Parole, 524 U.S. at 364 (“The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches”); Janis, 428 at 448, 454 (exclusionary rule’s deterrence benefits minimal where its availability in criminal trial already deterred illegal searches); United States v. Calandra, 414 U.S. 338, 349–50 (“The need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.”) (emphasis added); Thackston, 280 Ga. at 415 (recognizing minimal deterrent effect where law enforcement would “be substantially deterred from violating the suspect's Fourth Amendment rights by the application of the exclusionary rule to the criminal trial.”).

Then came City of Los Angeles v. Patel, No. 13-1175, 576 US ___, June 22, 2015, which held that even civil statutes are subject to facial challenges for violating the 4th Amendment, as opposed to individual challenge under the exclusionary rule, even for non-criminal statues.  The U.S. Supreme Court has entertained facial challenges under the Fourth Amendment to statutes authorizing warrantless searches. See, e.g., Vernonia School District 47J v. Acton, 515 U. S. 646, 648 (1995) ("We granted certiorari to decide whether" petitioner's student athlete drug testing policy "violates the Fourth and Fourteenth Amendments to the United States Constitution"); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 633, n. 10 (1989) ("[R]espondents have challenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can ever be conducted"); cf. Illinois v. Krull, 480 U. S. 340, 354 (1987) ("[A] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation"). Perhaps more importantly, the Supreme Court has on numerous occasions declared statutes facially invalid under the Fourth Amendment. For instance, in Chandler v. Miller, 520 U. S. 305, 308-309 (1997), the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this "requirement . . . [did] not fit within the closely guarded category of constitutionally permissible suspicionless searches." Similar examples abound. See, e.g., Ferguson v. Charleston, 532 U. S. 67, 86 (2001) (holding that a hospital policy authorizing "nonconsensual, warrantless, and suspicionless searches" contravened the Fourth Amendment); Payton v. New York, 445 U. S. 573, 574, 576 (1980) (holding that a New York statute "authoriz[ing] police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest" was "not consistent with the Fourth Amendment"); Torres v. Puerto Rico, 442 U. S. 465, 466, 471 (1979) (holding that a Puerto Rico statute authorizing "police to search the luggage of any person arriving in Puerto Rico from the United States" was unconstitutional because it failed to require either probable cause or a warrant).

In Los Angeles, the Court found a municipal ordinance unconstitutionally void under the 4th Amendment prohibition against unreasonable searches and seizures which allowed police warrantless access upon request to hotel registries.  The U.S. Supreme Court reasoned that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.  576 U.S. at ___. 

Applying this logic to a DUI Implied Consent Administrative license suspension, one would naturally assume that there would be exigent circumstances in a DUI case due to the body's natural elimination of alcohol over time. However, a per se rule of exigent circumstance in DUI cases because of the natural elimination of alcohol in the body over time was flatly rejected by the U.S. Supreme Court in Missouri v. McNeely,133 S. Ct. 1552, 1565 (2013).  It stands to reason that the Administrative Law Judges of the Office of State Administrative Hearings better decide to follow the Exclusionary Rule of the 4th Amendment or face the voiding as unconstitutional the entire Georgia Implied Consent DUI License Suspension regime. In any event, they may be required to be available via video conference for implied consent reviews regardless under direction of City of Los Angeles opinion. 

-Author: George Creal





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