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Legal Analysis of McNeely's Retroactivity

Posted By Caplan & Tamburino Law Firm || 23-Aug-2013

STATE OF MISSOURI V. MCNEELY'S RETROACTIVITY

One of the more pressing questions left to be decided in the wake of the U.S. Supreme Court's decision in McNeely [1] is whether or not the McNeely decision will affect past and current convictions and cases.

This issue of whether or not McNeely will apply retroactively, must be addressed by applying the principles found in Teague v. Lane.[2] In that case the U.S. Supreme Court concluded that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final."[3] In general, however, the courts recognize a "rule of nonretroactivity to cases pending on collateral review."[4] That is, "once a conviction or sentence becomes final, the defendant is not entitled to the retroactive benefit of a new rule, subject to two exceptions:"[5]

(1) "a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) "a new rule should be applied retroactively if it requires the observance of those procedures that are … implicit in the concept of ordered liberty."[6]

A New Rule

For purposes of determining retroactive application, "[t]he first question under the Teague doctrine is whether [ McNeely] announced a 'new rule'."[7] The McNeely decision "constitutes a new rule within the meaning of Teague if it breaks new ground, imposes a new obligation on the States or the Federal Government, or was not dictated by precedent existing at the time the defendant's conviction became final."[8] This "serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered."[9]

In Chambers v. State, the Minnesota Supreme Court considered whether a decision by the Supreme Court in Miller v Alabama [10] constituted a new rule. The court in Miller held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders."[11] Although this decision was based on precedent, the Minnesota Supreme Court determined that the Miller rule should still be considered a "new rule" because " Miller was not 'dictated by precedent' when the [Defendant's] conviction and sentence became final."[12] The court ruled that, "[t]he mere fact that a court says that its decision is within the logical compass of an earlier decision, or indeed that it is controlled by a prior decision, is not conclusive for purposes of deciding whether the current decision is a new rule."[13]

Similarly, the issue determined by McNeely constitutes a "new rule" under the Teague analysis. Although it can be argued that the McNeely decision is within the "logical compass of an earlier decision,"[14] that is not the most important consideration. Instead, because McNeely was not "dictated" by an earlier decision, it breaks new ground and imposes a new obligation on the State to acquire warrants prior to performing blood tests and those arrested for a DWI and the McNeely rule constitutes a "new rule" for purposes of retroactivity analysis.

Direct or Collateral Review

The next determination that must be made under a Teague review of retroactivity is whether the case is coming before the court on direct or collateral review.

The U.S. Supreme Court ruled that, "[i]f the rule is considered 'new,' it must be applied to all cases pending on direct review-cases where the availability of direct appeal has not been exhausted and the time for a petition for certiorari has not elapsed."[15] Therefore, if the case has not received a final judgment, the court must apply the "new" McNeely rule and our retroactivity analysis is complete.

However, if the case is final and being reviewed collaterally, it "does not receive the benefit of a 'new' rule of constitutional criminal procedure."[16] This is because "[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system."[17] "Without finality, the criminal law is deprived of much of its deterrent effect." [18] Therefore, a "new rule" will not be applied on collateral review unless the case falls within the scope of one of two possible exceptions:

(1) "a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and (2) "a new rule should be applied retroactively if it requires the observance of those procedures that are … implicit in the concept of ordered liberty."[19]

"When either of these exceptions applies, the new rule of constitutional criminal procedure must be given full retroactive effect, such that it is available to all defendants similarly situated, even though the defendant is seeking collateral review."[20]

Exception (1) – Primary, Private, Individual Conduct

The first exception "applies whenever the new rule places certain specific conduct 'beyond the power of the criminal law-making authority to proscribe'."[21] And this exception is only at issue when the rule, "alter[s] the range of conduct or the class of persons that the law punishes."[22] If a "new rule" is substantive it will likely fall within this first exception but if the "new rule" is merely procedural it will not be applied to cases on collateral review.[23] An example of a substantive rule which would be applied to all cases retroactively is one that "place[s] a certain class of individuals beyond the State's power to punish by death."[24]

McNeely established a new procedural rule requiring a warrant prior to a blood test. And because no substantive rule is at issue, this first exception will not apply to McNeely.

Exception (2) – Ordered Liberty

"The second exception, known as the 'watershed rule' exception, applies when the new rule 'requires the observance of those procedures that are implicit in the concept of ordered liberty' or 'alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction'."[25] This is a difficult standard to meet and "rules qualifying under the second Teague exception as 'watershed' rules are extremely rare."[26] The U.S. Supreme Court has been careful to emphasize that "the watershed 'exception is extremely narrow,' and since its decision in Teague [1989] has 'rejected every claim that a new rule satisfied the requirements for watershed status.' "[27]

"To be a watershed rule, the new rule must be one without which 'the likelihood of an accurate conviction is seriously diminished'."[28] For example, "the right to jury trial" is "fundamental to our system of criminal procedure," but it "does not impact the accuracy of an underlying determination of guilt or innocence."[29] So, a new rule affecting the jury trial right is not a "watershed rule" and does not qualify for retroactive application under the second exception.[30] In fact, the only case that has ever satisfied this standard is Gideon v. Wainwright [31] where the Court held that "counsel must be appointed for any indigent defendant charged with a felony."[32]

The McNeely rule affects the procedures that officers must follow – obtain a warrant – prior to "allowing a law enforcement officer to 'invade another's body in search of evidence of guilt'."[33] This rule directly affects the admissibility of evidence tending to prove that an individual was intoxicated at the time that he was operating a motor vehicle. Evidence – blood, breath and urine – obtained without a warrant was previously accepted as admissible in Minnesota to show intoxication. Under McNeely, however, without a warrant, this evidence should be thrown out which may lead to a dismissal of all charges in a particular case. Also, it would definitely tend to affect the accuracy of a conviction which may have been based upon unconstitutional evidence.

Also, the McNeely rule does not apply only to a subset of defendants such as juveniles.[34] Instead, the new rule would require a warrant for all intoxication testing for all defendants resulting in a "fundamental and profound impact on criminal proceedings generally." [35]

Where the McNeely rule may fall short of the second exception is that Supreme Court precedent has always favored the requirement that police officers obtain a warrant prior to conducting searches protected by the Fourth Amendment.[36] McNeely more clearly defined the application of the exigency exception to the Fourth Amendment[37] but the McNeely rule did not "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding."[38]

Therefore, the new rule announced in McNeely is "not a watershed rule,"[39] and does not fit within the second exception to the general rule that new rules are not applied retroactively to cases on collateral review.

CONCLUSION

The question of whether McNeely applies retroactively will have to be answered by Minnesota's Supreme Court soon after their upcoming decision in State of Minnesota v. Brooks.[40] The court will apply the Teague analysis and will likely find that the McNeely rule does constitute a "new rule" under the Teague definition.[41] Therefore, the court should determine that the McNeely rule does apply to cases on direct review that are not yet entirely final.

However, the court will also need to consider whether the McNeely rule applies on collateral review. In general, a "new rule" is not applied on collateral review unless it falls within one of the two exceptions.[42] Because the McNeely rule is procedural and not substantive, it cannot fulfill the first exception and because the McNeely rule does not alter the "bedrock procedural elements essential to the fairness of a proceeding" it cannot be considered a "watershed rule" and cannot fulfill the second exception. Therefore, the McNeely rule will likely not be applied retroactively on collateral review. Retroactivity of McNeely will likely only apply on direct review.

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