Team No. 2
No. 15-0319
In the Supreme Court of the United States
OCTOBER TERM, 2015
_________________________________________________
GARY WALSH,
Petitioner,
v.
STATE OF SETONIA,
Respondent.
_________________________________________________
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF SETONIA
_________________________________________________
BRIEF FOR RESPONDENT
_________________________________________________
Counsel for Respondent
March 3, 2016
QUESTIONS PRESENTED
I.
Can a State criminalize a person’s refusal to take a chemical test to identify the presence
of alcohol in his or her blood without a warrant, in a way that is consistent with the
Fourth Amendment, when the statute only allows a police officer to administer the test
after a person is lawfully arrested for driving while intoxicated; when the law presumes
consent and offers the subject a legitimate choice between continuing to consent or
revoking that consent and suffering the attendant penalties for that choice; and when,
presuming the reasonableness of government action that complies with the law under the
Fourth Amendment, the alleged invasion of privacy pales in comparison to the need to
promote a legitimate governmental interest?
II.
Does the Sixth Amendment’s Speedy Trial Clause apply to the sentencing phase of a
criminal prosecution when the Sixth Amendment, as it has been historically interpreted
and understood by this Court, does not include the sentencing phase of a criminal
prosecution; when the sentencing phase does not implicate any of the “major evils” that
the Sixth Amendment was intended to protect against; and when applying the Sixth
Amendment to the sentencing phase would have devastating and undesirable results
given this Court’s Sixth Amendment precedent?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................................... i
TABLE OF CONTENTS .............................................................................................................. ii
TABLE OF AUTHORITIES ....................................................................................................... iv
BRIEF FOR RESPONDENT ........................................................................................................ 1
OPINIONS BELOW ...................................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................... 1
STATEMENT OF THE CASE ...................................................................................................... 2
A.
Procedural History ................................................................................................. 2
B.
Statement of the Facts ............................................................................................ 3
C.
Standard of Review ................................................................................................ 6
SUMMARY OF THE ARGUMENT ............................................................................................ 7
ARGUMENT ............................................................................................................................... 11
I.
THE SUPREME COURT OF THE STATE OF SETONIA CORRECTLY HELD
THAT THE PETITIONER’S MOTION TO DISMISS SHOULD HAVE BEEN
DENIED BECAUSE THE STATUTE IS CONSISTENT WITH THE
REQUIREMENTS OF THE FOURTH AMENDMENT. ............................................... 11
A.
The statute is consistent with the requirements of the Fourth Amendment
because it only imposes criminal penalties when the arrested person
refuses to submit to the test, which the government could have compelled
the person to take under the search-incident-to-arrest exception of the
Fourth Amendment. ............................................................................................. 12
B.
The statute is consistent with the requirements of the Fourth Amendment
because implied consent can be imposed as a reasonable condition on the
privilege of driving, and the statute offers the individual a legitimate
choice between continuing to consent or withdrawing that consent and
suffering appropriate penalties. ............................................................................ 14
ii
C.
II.
The statute is consistent with the requirements of the Fourth Amendment
because, after starting with the appropriate presumption of
constitutionality, the test authorized by law only provides a minimal
intrusion upon individual privacy interests that is outweighed by the need
to promote the legitimate governmental interest in reducing the harm
caused by drunk driving. ...................................................................................... 16
THE SUPREME COURT OF THE STATE OF SETONIA CORRECTLY HELD
THAT THE PETITIONER’S MOTION TO DISMISS WAS RIGHTFULLY
DENIED BECAUSE THE SIXTH AMENDMENT’S SPEEDY TRIAL CLAUSE
DOES NOT APPLY TO THE SENTENCING PHASE OF A CRIMINAL
PROSECUTION .............................................................................................................. 19
A.
The Sixth Amendment’s Speedy Trial Clause does not apply to the
sentencing phase of a criminal prosecution because the Clause’s
protections, as historically interpreted and understood by this Court, do not
cover the sentencing phase of a criminal prosecution. ........................................ 20
B.
The Sixth Amendment’s Speedy Trial Clause does not apply to the
sentencing phase of a criminal prosecution because that phase does not
implicate any of the “major evils” protected by the speedy trial guarantee. ....... 23
C.
The Sixth Amendment’s Speedy Trial Clause does not apply to the
sentencing phase of a criminal prosecution because to hold otherwise
would have absurd and severe results for the public at large in light of this
Court’s precedent on violations of the Speedy Trial Clause. ............................... 26
CONCLUSION ............................................................................................................................ 28
APPENDIX A ............................................................................................................................... A
APPENDIX B ............................................................................................................................... B
iii
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey
530 U.S. 466 (2000) ......................................................................................................... 21
Arizona v. Gant
556 U.S. 332 (2009) ................................................................................................... 11, 12
Barker v. Wingo
407 U.S. 514 (1972) ................................................................................................... 25, 26
Bozza v. United States
330 U.S. 160 (1947) ......................................................................................................... 27
Brady v. Superintendent, Anne Arundel Cty. Det. Ctr.
443 F.2d 1307 (4th Cir. 1971) ......................................................................................... 20
Brooks v. United States
423 F.2d 1149 (8th Cir. 1970) ......................................................................................... 20
Burnett v. Municipality of Anchorage
806 F.2d 1447 (9th Cir. 1986) ................................................................................. passim
Burkett v. Cunningham
826 F.2d 1208 (3d Cir. 1987) ........................................................................................... 20
Burkett v. Fulcomer
951 F.2d 1431 (3d Cir. 1991) ........................................................................................... 25
Callan v. Wilson
127 U.S. 540 (1888) ......................................................................................................... 22
Chimel v. California
395 U.S. 752 (1969) ......................................................................................................... 17
Doggett v. United States
505 U.S. 647 (1992) ......................................................................................................... 26
Fernandez v. California
134 S. Ct. 1126 (2014) ............................................................................................... 11, 14
Gibbons v. Ogden
22 U.S. 1 (1824) ............................................................................................................... 20
iv
TABLE OF AUTHORITIES (Continued)
Griffin v. Wisconsin
483 U.S. 868 (1987) ......................................................................................................... 17
Hurst v. Florida
136 S. Ct. 616 (2016) ....................................................................................................... 22
Kaley v. United States
134 S. Ct. 1090 (2014) ..................................................................................................... 22
Klopfer v. North Carolina
386 U.S. 213 (1967) ............................................................................................. 19, 21, 25
McMillan v. Pennsylvania
477 U.S. 79 (1986) ........................................................................................................... 22
McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479 (1991) ........................................................................................................... 6
Meachum v. Fano
427 U.S. 215 (1976) ................................................................................................... 23, 24
Mich. Dep’t of State Police v. Sitz
496 U.S. 444 (1990) ......................................................................................................... 18
Missouri v. McNeely
133 S. Ct. 1552 (2013) ................................................................................... 13, 15, 18, 19
O’Connor v. Ortega
480 U.S. 709 (1987) ......................................................................................................... 17
Payton v. New York
445 U.S. 573 (1980) ......................................................................................................... 11
Perez v. Campbell
402 U.S. 637 (1971) ......................................................................................................... 15
Perez v. Sullivan
793 F.2d 249 (10th Cir. 1986) ......................................................................................... 24
Pollard v. United States
352 U.S. 354 (1957) ......................................................................................................... 19
Riley v. California
134 S. Ct. 2473 (2014) ......................................................................................... 11, 12, 17
v
TABLE OF AUTHORITIES (Continued)
Salve Regina Coll. v. Russell
499 U.S. 225 (1991) ........................................................................................................... 6
Schmerber v. California
384 U.S. 757 (1966) ............................................................................................. 12, 14, 18
South Dakota v. Neville
459 U.S. 553 (1983) ................................................................................................... 12, 15
State v. Birchfield
858 N.W.2d 302 (N.D. 2015) .................................................................................... 11, 16
Strunk v. United States
412 U.S. 434 (1973) ......................................................................................................... 26
United States v. Casas
425 F.3d 23 (2005) ........................................................................................................... 20
United States v. Danner
429 Fed. App’x 915 (11th Cir. 2011) .............................................................................. 20
United States v. Ewell
383 U.S. 116 (1966) ......................................................................................................... 24
United States v. Gibson
353 F.3d 21 (D.C. Cir. 2003) ........................................................................................... 20
United States v. Gould
672 F.3d 930 (10th Cir. 2012) ......................................................................................... 20
United States v. Howard
577 F.2d 269 (5th Cir. 1978) ........................................................................................... 20
United States v. MacDonald
456 U.S. 1 (1982) ............................................................................................................. 23
United States v. Marion
404 U.S. 307 (1971) ......................................................................................................... 23
United States v. Martinez
837 F.2d 861 (9th Cir. 1988) ........................................................................................... 20
United States v. Ray
578 F.3d 184 (2d Cir. 2009) ..................................................................................... passim
vi
TABLE OF AUTHORITIES (Continued)
United States v. Robinson
414 U.S. 218 (1973) ......................................................................................................... 12
United States v. Rothrock
20 F.3d 709 (7th Cir. 1994) ............................................................................................. 20
United States v. Sanders
452 F.3d 572 (6th Cir. 2006) ........................................................................................... 25
United States v. Sprague
282 U.S. 716 (1931) ......................................................................................................... 20
United States v. Thomas
167 F.3d 299 (6th Cir. 1999) ........................................................................................... 20
United States v. Watson
423 U.S. 411 (1976) ............................................................................................. 11, 16, 17
Vernonia School Dist 47J v. Acton
515 U.S. 646 (1995) ......................................................................................................... 17
Wyoming v. Houghton
526 U.S. 295 (1999) ................................................................................................... 11, 16
Constitutional Provisions
U.S. Const. amend IV ............................................................................................................... 1, A
U.S. Const. amend VI .......................................................................................................... passim
Statutory Provisions
28 U.S.C. § 1257(a) (2012) ............................................................................................................ 1
Setonia Stat. § 169A.51 (2014) ............................................................................................ passim
Other Authorities
4 W. Blackstone, Commentaries on the Laws of England (1769) ............................................... 21
Black’s Law Dictionary (10th ed. 2014) ...................................................................................... 21
MADD – Drunk Driving Statitstics, MADD
http://www.madd.org/drunk-driving/about/drunkdriving-statistics.html ........................ 18
vii
BRIEF FOR RESPONDENT
Respondent, the State of Setonia, respectfully submits this brief on the merits and asks
this to Court affirm the judgment of the Supreme Court of the State of Setonia.
OPINIONS BELOW
The opinion, decision, and order of the Supreme Court of the State of Setonia is
unreported and is set out within the record. R. at 1–10.
STATEMENT OF JURISDICTION
After the Supreme Court of the State of Setonia entered final judgment, Petitioner filed a
timely Petition for Certiorari. This Court granted the Petition on February 8, 2016. This Court
has jurisdiction pursuant to 28 U.S.C. § 1257(a) (2012), since the Supreme Court of the State of
Setonia, which is the highest court in the state, has rendered a final judgment, and the Setonia
statutory scheme is being drawn into question on the ground of its being repugnant to the
Constitution of the United States.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourth and Sixth Amendments to the United States Constitution are relevant to the
resolution of this appeal, and they are reprinted in Appendix A. Additionally, the Setonia statute
regarding implied consent, specifically Setonia Statute section 169A.51 (2014), is relevant to this
appeal and is reprinted, as it appears in the record, in Appendix B.
1
STATEMENT OF THE CASE
A.
Procedural History
Fourth Amendment Claim. After being arrested on suspicion of driving while impaired
on October 4, 2014, Walsh (Petitioner) was charged with First Degree Driving While Impaired –
Test Refusal in violation of Setonia Statute section 169A.20 (2014). R. at 2. Petitioner filed a
motion to dismiss the charge arguing that the statute criminalized his right to refuse a search
under the Fourth Amendment. R. at 2. The trial court declined to disturb the constitutionality of
the statute, but granted the motion on the grounds that the statue was unconstitutional as applied
to Walsh. R. at 2. The State appealed to the Setonia Appellate Division, which in turn transferred
the case to the Supreme Court of Setonia. R. at 2. That court reversed the trial court and held the
statute was constitutional under the search-incident-to-arrest exception. R. at 6. Walsh petitioned
this Court for review, which was granted on February 8, 2016. R. at 11.
Sixth Amendment Claim. On October 13, 2014, Petitioner was charged with bail
jumping, to which he pled guilty on November 14, 2014. R. at 3. After this plea, Walsh’s
sentencing was scheduled for July 28, 2015; when that day came, he filed a motion to dismiss the
charges alleging a violation of his Sixth Amendment rights. R. at 3. On October 13, 2015, the
trial court denied Petitioner’s motion without a hearing, holding that his Sixth Amendment rights
were not violated. R. at 3. On November 24, 2015, Walsh again requested a dismissal of the
charges based on a violation of the Sixth Amendment, and he also requested a hearing on the
motion; these requests were denied. R. at 4. Petitioner appealed to the Setonia Appellate
Division, which in turn transferred the case to the Supreme Court of Setonia. R. at 4. That court
affirmed the trial court, holding that the Speedy Trial Clause does not apply to sentencing. R. at
7. Walsh petitioned this Court for review, which was granted on February 8, 2016. R. at 11.
2
B.
Statement of the Facts
Petitioner is Arrested for Driving While Impaired. On October 14, 2014, the Brick City
Police Department responded to a boat launch at Sandy Hook, Setonia, and made contact with
three intoxicated men who smelled of alcohol; they were trying to use a truck to get a boat out of
the water. R. at 1. Walsh was among the group, and stood out not only because he was wearing
only underwear at the time, but also because his eyes were watery and bloodshot. R. at 1.
Petitioner admitted to drinking alcohol that day, but he denied driving the truck; however, this
was inconsistent with the fact that he was holding the keys to the truck the entire time officers
were speaking with him, and the fact that a witness identified Walsh as the driver of the truck. R.
at 1. Based on the statements made by the witness and the observations of the police officers,
Walsh was lawfully arrested on suspicion of driving while impaired. R. at 1.
Petitioner Refuses to Take Chemical Test Required by Law. Post-arrest, an officer
provided Walsh with the Setonia Implied Consent Advisory, which said that “Setonia law
required him to take a chemical test, that refusal to take the test was a crime, and that he had the
right to consult with an attorney so long as there was not an unreasonable delay in the
administration of the test.” R. at 1–2. At that time, Petitioner refused to take the test, and he was
charged with test refusal. R. at 2. The police did not obtain a warrant because the law did not
require them to do so. R. at 2; see § 169A.51 subd. 1.
Petitioner is Charged and Convicted of Bail Jumping. When Walsh was arrested for
driving while intoxicated, the police learned he had an active warrant for his arrest, related to his
failure to appear in court for a family member assault charge. R. at 3. During the Petitioner’s
arraignment on the test refusal charges, he admitted that he knew he was supposed to appear in
court for the assault charge; as a result of his failure to appear, he was charged with bail jumping
3
on October 13, 2014. R. at 3. After being sentenced for the assault charge following a guilty plea,
Walsh was remanded to the Brick City Detention Center pending his arraignment for bail
jumping. R. at 3. Petitioner subsequently pled guilty to the charge of bail jumping on November
14, 2014, during his arraignment. R. at 3.
Petitioner Creates a Delay in Sentencing. On November 14, 2014, the same day as
Walsh’s guilty plea, the court ordered an updated Presentence Investigation Report (Report) to
be used in sentencing Walsh; the sentencing hearing would be scheduled upon receipt of the
report. R. at 3. Also that same day, the State of Setonia timely filed a notice that it intended to
designate Petitioner as a persistent felony offender. R. at 3. Petitioner objected to this notice
nearly a week later, which required the court to hold a hearing; this hearing was set for January
21, 2015. R. at 3. After the hearing, the court took time to consider Walsh’s objection and
remanded him to the Brick City Detention Center. R. at 3.
While the court was considering Petitioner’s objection, on May 12, 2015, the Report was
completed. R. at 3. On June 23, 2015, the court denied Walsh’s objection to the State’s notice,
and after receiving and considering the Report on July 8, 2015, the court scheduled Walsh’s
sentencing for July 28, 2015. R. at 3. At this point, Walsh’s objection had delayed the
proceedings by approximately five months. R. at 3. At no time before his first sentencing hearing
did Petitioner complain about the delay or request an expedited hearing.
Petitioner Alleges an Unconstitutional Delay at the First Sentencing Hearing. For the
first time since he was convicted of bail jumping, and despite the fact that he contributed to the
delay in his sentencing, Walsh moved to dismiss the bail jumping charge on July 28, 2015—the
same date as his sentencing hearing—alleging a violation of his Sixth Amendment rights. R. at 3.
Surprised at hearing this argument for the first time, the State of Setonia requested time to
4
respond, and later filed a timely response on August 11, 2015. R. at 3. On October 13, 2015,
without holding a prior hearing, the trial judge issued a written opinion denying Petitioner’s
motion after considering all of the relevant factors. R. at 3. By this time, Walsh had created over
seven months of delays in his own sentencing.
Petitioner Renews the Sixth Amendment Claim Post-Denial. In September of 2015,
both Walsh and the State notified the court that a new date for the sentencing hearing was
needed, since Walsh’s motion delayed the first hearing. R. at 4. However, because of Walsh’s
motion, the court was unable to schedule the new sentencing hearing until after a decision was
rendered on the motion. R. at 4. After the motion was decided, on November 24, 2015, Petitioner
again asserted that his Sixth Amendment rights were violated. R. at 4. To support his claim, he
filed an affidavit claiming (among other things) that he would have had access to better treatment
programs in a prison instead of his current jail; that he was suffering several negative effects
from being in jail, such as not having time counted towards his conditional release and being
unable to complete requirements for his other sentences; that he was depressed and anxious as a
result of the delay in his sentencing; and that he was not receiving medication for a few health
issues. R. at 4. On this basis, Walsh requested a hearing on what appeared to be his renewal of
his previous motion, and also requested that the bail jumping charges be dismissed. R. at 4. The
court appropriately denied Walsh’s requests. R. at 4. Finally, on December 28, 2015, after
Petitioner’s actions had caused over fourteen months of delays, he was sentenced to seven years
in Setonia State Prison, with four years suspended. R. at 4. This sentence was consecutive to his
sentence for the assault. R. at 4.
5
C.
Standard of Review
Petitioner’s Fourth Amendment claim challenges the constitutionality of Setonia’s
implied consent statutory scheme, and this claim is subject to a de novo review as a question of
constitutional law. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 480 (1991). Petitioner’s
Sixth Amendment claim is that his rights under the Speedy Trial Clause were violated, and this
claim is also subject to a de novo review as a question of constitutional law. Id. When de novo
review is compelled, this Court conducts a new and independent review of the relevant legal
questions, and it may also disregard the lower court’s conclusions. Salve Regina Coll. v. Russell,
499 U.S. 225, 238 (1991).
6
SUMMARY OF THE ARGUMENT
Criminalizing Test Refusal is Consistent with the Fourth Amendment. In determining
whether the State can criminalize a defendant’s refusal to submit to a chemical test, this Court
must look to whether the law allows the government to engage in conduct consistent with the
Fourth Amendment. These inquiries start with two presumptions: first, the presumption that
warrantless searches are unreasonable, although there are well-recognized exceptions to this
including a search conducted incident to a lawful arrest and obtaining consent from the
defendant, and second, that there is a strong presumption of constitutionality surrounding a
legislatively enacted statute. Ultimately, even if no exceptions apply, the Court must assess the
reasonableness of a search by balancing the alleged intrusion on an individual’s privacy with the
government’s need to promote their legitimate interests. Where a law allows the government to
engage in behavior that is consistent with the Constitution, as it does in this case, this Court
should uphold the challenged law.
The challenged law here is consistent with the Fourth Amendment because it only
imposes criminal penalties on a defendant that refuses to take a chemical test when the
government is authorized to seize the sought-after evidence pursuant to the search-incident-toarrest exception. This exception has been long-recognized by this Court, and allows searches of
the defendant’s person. To obtain evidence of intoxication from the person’s body, the Court
only requires that there be a clear indication that evidence of a crime will be found, that the test
chosen must be reasonable, and the methods used to employ the test must be reasonable. In the
case of Setonia’s implied consent laws, a person arrested on probable cause for driving while
intoxicated will nearly always provide clear indications that evidence will be found within the
body. Further, chemical testing to determine blood alcohol content is reasonable, as are the
7
methods used to employ the chemical tests. Thus, Setonia’s laws are consistent with the
Constitution and accordingly, this Court should affirm the decision of the Supreme Court of the
State of Setonia.
Beyond the justification of a search incident to arrest, the implied consent statutes at issue
here are consistent with the requirements of the Fourth Amendment because they are a valid
exercise of state police power. Driving is a privilege—not a right—and Setonia can place
reasonable burdens upon that right, especially for the purpose of safeguarding its citizens.
Further, although a person’s driving privilege has been burdened, their Fourth Amendment rights
are left fully intact. Although the law creates a difficult choice for a person arrested for drunk
driving, this choice has been previously recognized by this Court as one that does not rise to the
level of being coercive, thus leaving their constitutional rights intact. Because this exercise of
state police power does not infringe on a defendant’s Fourth Amendment rights, this court should
hold that Setonia’s implied consent statutory scheme is constitutional, and should affirm the
decision of the Supreme Court of the State of Setonia.
Even if the search contemplated in the implied consent laws was not governed by either
of the two mentioned exceptions, it can still be considered reasonable under the Fourth
Amendment. To make this determination, the Court balances the level of invasion into a person’s
legitimate expectations of privacy with the need for promoting a legitimate governmental
interest. In balancing these two competing ends, the government is favored; this is because
legislation is presumed to comply with the Constitution. Applying this balancing test to Setonia’s
implied consent statutory scheme, it is clear that it complies with the requirements of the Fourth
Amendment. The law only requests that a defendant submit to a test after he has already been
arrested upon probable cause; after arrest, a defendant has a reduced expectation of privacy.
8
Further, the rampant problem of drunk driving and the seriousness of the harm it causes
demonstrate a legitimate and overwhelming governmental interest in support of the laws
challenged here. Intertwined with this, although not a justification on its own, Setonia (like all
states) has a strong interest in collecting evidence related to drunk driving before it disappears, in
order to prosecute violations and increase the safety of travelers on its roadways. Implied consent
laws have been used as a tool to promote these interests, and given the strength of these interests
and the minimal burden placed on individual privacy rights, especially in the context of an
arrested defendant, this Court should hold that the implied consent laws are constitutional and
affirm the decision of the Supreme Court of Setonia.
The Sixth Amendment Does Not Apply to Sentencing. To appropriately determine
whether the Sixth Amendment applies to sentencing a defendant, the Court should look to the
language and history of the Sixth Amendment, the evils against which the Speedy Trial Clause
was designed to protect, and the Court’s precedent for appropriate remedies for Sixth
Amendment violations. The language and history of the Amendment make it clear that “the right
to a speedy and public trial, by an impartial jury” applies only where a defendant has the right to
a jury trial; during sentencing, the defendant has no such right. U.S. Const. amend VI. Further,
the rights embodied in the Clause apply to the accused—not those who have been convicted of a
crime. Unsupported by the language and history of the Sixth Amendment, the claim that the
Clause can be applied to sentencing must fail.
Additionally, this Court has held that the Sixth Amendment is designed to prevent
oppressive pretrial incarceration, minimize anxiety and concern of the accused, and limit the
possibility that the accused’s defense will be impaired. Careful examination of each of these
protections reveals them to be unequal or inapplicable to the convicted defendant. Certainly, a
9
convicted defendant cannot face oppressive pretrial incarceration as a result of a delay in
sentencing because sentencing occurs post-trial. Also, any anxiety and concern that a convicted
defendant may feel is wholly tied to the cloud of guilt hanging over him after his conviction and
his anticipation of his deserved sentence; these are not the concerns of the accused or the
concerns against which the Sixth Amendment protects. Lastly, any impairment of a convicted
defendant to plead for a lighter sentence is minimal at best, and, like the aforementioned anxiety
and concern, is simply not of the same character as the potential impairment of the accused’s
defense caused by an unconstitutional delay. None of the concerns of a convicted defendant
waiting to be sentenced are the same as those of the accused awaiting trial, and because of this,
the Speedy Trial Clause is clearly inapplicable to the sentencing phase of a criminal prosecution.
Finally, this Court’s precedent makes it clear that the only available remedy for a Sixth
Amendment violation is the dismissal of charges against the defendant. In the case of the
accused, this is harsh—but fair—because a potentially guilty defendant goes free. However, if
this same remedy applied for failure to speedily sentence a defendant, this same rule becomes
extreme because it allows a man who has been proven guilty to walk free. This would be
contrary to the Court’s prior decisions disapproving of this result; given this, the Court should
hold that the Sixth Amendment’s Speedy Trial Clause is inapplicable to the sentencing, and
should affirm the decision of the Supreme Court of the State of Setonia.
10
ARGUMENT
I.
THE SUPREME COURT OF THE STATE OF SETONIA CORRECTLY HELD THAT
THE PETITIONER’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED
BECAUSE THE STATUTE IS CONSISTENT WITH THE REQUIREMENTS OF THE
FOURTH AMENDMENT.
In order to properly determine whether the State can, consistent with the Constitution and
without a warrant, criminalize a defendant’s refusal to submit to a test of his or her blood, breath,
or urine, this Court must start with the premise that although searches conducted without a
warrant are presumptively unreasonable, this presumption is subject to several well-defined
exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009) (citing Katz v. United States, 389 U.S.
347, 357 (1967)). Those exceptions include a search incident to arrest, Riley v. California, 134 S.
Ct. 2473, 2482 (2014), and obtaining valid consent. Fernandez v. California, 134 S. Ct. 1126,
1132 (2014). Of course, the ultimate touchstone of the Fourth Amendment is reasonableness.
Riley, 134 S. Ct. at 2482 (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). In addition,
there is a strong presumption of constitutionality of statutes enacted by legislative bodies. See
United States v. Watson, 423 U.S. 411, 416 (1976); State v. Birchfield, 858 N.W.2d 302, 303–
304 (N.D.), reh’g denied (Feb. 12, 2015), cert. granted, 136 S. Ct. 614 (2015). To evaluate a
search under traditional standards of reasonableness, the Court must “assess[], on the one hand,
the degree to which it intrudes upon an individual's privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.” Wyoming v.
Houghton, 526 U.S. 295, 300 (1999) (citing Vernonia School Dist. 47J v. Acton, 515 U.S. 646,
652–653 (1995)).
Where a law authorizes unconstitutional acts, such as warrantless entry into a home, that
law can and will be struck down as repugnant to the Constitution. See, e.g., Payton v. New York,
445 U.S. 573, 575–76 (1980) (holding that a statute authorizing warrantless and forced entry to a
11
residence to make an arrest was unconstitutional). However, if the law allows the government to
engage in behavior consistent with the Constitution, the law is upheld. See, e.g., South Dakota v.
Neville, 459 U.S. 553, 564 (1983) (holding that an implied consent statute did not violate the
Fifth Amendment, and was therefore constitutional). With this in mind, in this case, the question
becomes whether the conduct authorized by the statute is consistent with the constitutional
protections provided by the Fourth Amendment; if it is, then this Court should uphold the statute
and affirm the decision of the Supreme Court of the State of Setonia.
A.
The statute is consistent with the requirements of the Fourth Amendment because
it only imposes criminal penalties when the arrested person refuses to submit to
the test, which the government could have compelled the person to take under the
search-incident-to-arrest exception of the Fourth Amendment.
Among the few exceptions to the Fourth Amendment’s warrant requirement is a search
incident to a lawful arrest. Gant, 556 U.S. at 338 (citing Weeks v. United States, 232 U.S. 383,
392 (1914)). The exception derives from interests in officer safety and evidence preservation that
are typically implicated in arrest situations. Gant, 556 U.S. at 338 (citing United States v.
Robinson, 414 U.S. 218, 230–34 (1973); Chimel v. California, 395 U.S. 752, 763 (1969)). This
exception does not depend on the probability evidence would in fact be found upon the person of
the suspect; because the suspect has been arrested on probable cause, this Court has held that no
additional justification is necessary. Robinson, 414 U.S. at 235. The scope of a search incident to
arrest includes “the person of the accused.” Riley, 134 S. Ct. at 2482 (citing Weeks, 232 U.S. at
392) (emphasis added).
When a search incident to arrest involves an intrusion beyond the body's surface, it is
justified when there is a clear indication that evidence of a crime will be found there. Schmerber
v. California, 384 U.S. 757, 769–70 (1966). In addition, the test chosen to measure defendant's
blood alcohol level must be reasonable and must be performed in a reasonable manner. Burnett
12
v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir. 1986) (citing Schmerber, 384 U.S.
at 770–71). However, absent an emergency, an actual intrusion into the body is not justified by
the exception; instead, the police must obtain a warrant. Missouri v. McNeely, 133 S. Ct. 1552,
1558 (2013) (citing Schmerber, 384 U.S. at 770). This Court has held that the natural dissipation
of alcohol in the bloodstream is not a per se exigency that would satisfy the aforementioned
emergency. McNeely, 133 S. Ct. at 1556.
Given these rules, the government conduct allowed under Setonia’s implied consent
statutory scheme is constitutional. The statute allows the police to make a request of a defendant,
who has been lawfully arrested for driving while intoxicated, to submit “to a chemical test of that
person’s blood, breath, or urine for the purpose of determining the presence of alcohol . . . .” §
169A.51 subd. 1. The officer is required to provide the defendant with an implied consent
advisory, which informs him (among other things) that he has the right to refuse to take the test.
Id. § 169A.51 subd. 2. Based on the facts in the record, if a defendant refuses to take the test, he
is not forced to submit to the requested test or any other test; he is merely charged with the
appropriate crime. R. at 1–2. These facts are clearly in line with the rules surrounding a search
incident to arrest as outlined by this Court. Any search under this law would be consistent with
the requirements of Robinson because the search is only conducted incident to arrest.
Because this search goes beyond the surface of the body, Schmerber requires that there
be an indication that evidence will be found within the body, and that any test performed be
reasonable and be performed in a reasonable manner. Burnett, 806 F.2d at 1449. In the case of
drunk driving, “symptoms of drunkenness” like smelling alcohol on a defendant’s breath or
noticing that the defendant’s eyes are bloodshot, watery, and glassy satisfy this requirement. See
Schmerber, 384 U.S. at 769. Once an officer has established probable cause to make an arrest for
13
driving while intoxicated, the required indications will likely be present; at the very least, similar
observations were present in the case before the Court, with the additional fact that the Petitioner
admitted to drinking alcohol. R. at 1. Further, the chemical tests contemplated by the statute are a
reasonable method of determining the blood alcohol content of a defendant’s blood. See, e.g.,
Schmerber, 384 U.S. at 771. (holding that a blood test is a reasonable method for determining
blood alcohol content); Burnett, 806 F.2d at 1450 (holding the same for a breath test). Finally,
there is no allegation in the record that any of the proposed testing methods are unreasonable.
Importantly, consistent with McNeely, the government did not actually intrude into the
Petitioner’s body; he was merely charged for declining to cooperate with a lawful government
search. R. at 2. Even if the police had done so, the statutes in question would not have allowed
this conduct. Thus, because Setonia’s implied consent statutory scheme is valid under the searchincident-to-arrest exception, and because the statute does not allow the police to force the test
upon a defendant, but rather only penalizes a defendant for withholding evidence that the police
are allowed to lawfully obtain, this Court should affirm the decision of the Supreme Court of
Setonia and hold that implied consent statutes are constitutional.
B.
The statute is consistent with the requirements of the Fourth Amendment because
implied consent can be imposed as a reasonable condition on the privilege of
driving, and the statute offers the individual a legitimate choice between
continuing to consent or withdrawing that consent and suffering appropriate
penalties.
Beyond the search incident to arrest, the Court has recognized that the consent of a
defendant is an exception to the Fourth Amendment’s warrant requirement. Fernandez, 134 S.
Ct. at 1132. “‘Consent searches are part of the standard investigatory techniques of law
enforcement agencies’ and are ‘a constitutionally permissible and wholly legitimate aspect of
effective police activity.’” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231–32
14
(1973)). Setonia’s statute, like many implied consent laws, presume that all people who choose
to drive within the state consent to taking a chemical test upon being arrested for drunk driving. §
169A.51 subd. 1. While this places a burden on the ability to drive, this Court has recognized
that driving is a privilege that the states may burden under their police powers. See Neville, 459
U.S. at 559; Perez v. Campbell, 402 U.S. 637, 663 (1971). Here, like all other states, Setonia has
chosen to burden the privilege of driving with the driver’s provision of implied consent to take a
chemical test. § 169A.51 subd. 1(a); McNeely, 133 S. Ct. at 1566 (noting the adoption of implied
consent laws in all 50 states).
Importantly, the Court considered an implied consent law in Neville, and noted that the
law did not authorize law enforcement officers to administer chemical tests against the
defendant’s will; instead, the law offered the defendant a choice between cooperating and taking
the test or refusing the test and suffering the consequences. Neville, 459 U.S. at 559–60.
Setonia’s law is no different in this regard. § 169A.51 subd. 1. Also, imposing a penalty for
refusal to take a chemical test is “unquestionably legitimate,” Neville, 459 U.S. at 560, and
provides the defendant with a real choice, especially since Setonia “could legitimately compel
the [defendant], against his will, to accede to the test.” Id. at 563. While this presents defendants
like Petitioner with a hard choice, “the criminal process often requires suspects and defendants to
make difficult choices” and these hard choices do not make any cooperation provided coercive;
at least not in the Fifth Amendment context. Id. at 564.
The most recent illustrative case was heard in North Dakota. There, the Supreme Court of
North Dakota was faced with the same issue currently before the Court, after this Court’s
decision in McNeely, and it held that implied consent laws are not coercive and any cooperation
provided is not involuntary just because there are administrative and criminal penalties
15
associated with the choice of exercising the right to refuse a search. Birchfield, 858 N.W.2d at
306. In fact, the court there noted that when the defendant refused to take the test, he was not
tested, showing that his Fourth Amendment rights were not violated. Id. at 307–08. Further,
when a defendant is deemed to have given implied consent, he has not relinquished any rights;
there is no Fourth Amendment right to refuse a chemical test under these circumstances. Burnett,
806 F.2d at 1450. Similarly, Petitioner was read an implied consent advisory and given a choice
on whether or not he wanted to cooperate; he chose to refuse the test, and suffered the
appropriate consequences as a result. R. at 1–2. Because the states can place reasonable burdens
on driving privileges, including implied consent, and because the implied consent provided does
not burden the Fourth Amendment rights of drivers asked to submit to chemical testing, this
Court should affirm the decision of the Supreme Court of the State of Setonia and hold that
Setonia’s implied consent laws are consistent with the requirements of the Fourth Amendment.
C.
The statute is consistent with the requirements of the Fourth Amendment because,
after starting with the appropriate presumption of constitutionality, the test
authorized by law only provides a minimal intrusion upon individual privacy
interests that is outweighed by the need to promote the legitimate governmental
interest in reducing the harm caused by drunk driving.
Even if the actions of the government do not fall into one of the delineated exceptions, its
actions can still be held to be reasonable under the Fourth Amendment. Under the traditional
standards, a search is reasonable when the need for the promotion of governmental interests
outweighs the degree to which government action intrudes on an individual’s privacy. Houghton,
526 U.S. at 300 (citing Acton, 515 U.S. at 652–653). In addition, when balancing these two
interests, Setonia, like all governments, are favored; this is because there is a presumption of
constitutionality surrounding statutes enacted by state and federal lawmakers. See Watson, 423
U.S. at 416; Birchfield, 858 N.W.2d at 303–304. This is because laws are assumed not to be the
16
product of “isolated or quixotic judgment,” but instead that lawmakers exercise good judgment
in deciding what is and is not reasonable. Watson, 423 U.S. at 415–16. Using these Courtestablished rules and applying them to this case, the natural conclusion is that Setonia’s implied
consent laws are reasonable and thus comply with the Fourth Amendment.
When considering the degree to which government action invades the privacy of an
individual, the Court has previously held that the Fourth Amendment does not protect all
expectations of privacy; instead, it protects only those which society recognizes as reasonable.
Acton, 515 U.S. at 654. Whether an expectation is legitimate depends on the context surrounding
the government action. Id. For example, when a probation officer conducted a warrantless search
of a probationer’s home, this Court held that the reason was reasonable; this was despite the fact
that the same government conduct would not be constitutional if it was applied to all members of
the public. Griffin v. Wisconsin, 483 U.S. 868, 875 (1987). Further, a government employer may
reasonably conduct a warrantless search of an employee’s work area, so long as that search is
work-related and justified in its inception and scope. O’Conner v. Ortega, 480 U.S. 709, 725–26
(1987).
Turning to Setonia’s statutes, any invasion of a defendant’s legitimate expectation of
privacy is minimal. First, any search conducted by the police under the statute takes place only
after the defendant has been arrested upon probable cause. § 169A.51 subd. 1. Upon being
placed under arrest and taken into police custody, this Court has recognized that a defendant has
reduced privacy interests. Riley, 134 S. Ct. at 2488. The test at issue in this case, a breath test, is
certainly not the “top-to-bottom search of a man’s house” disapproved of in Chimel, 395 U.S. at
766–77, but instead is much closer to a “minor additional intrusion[] compared to the substantial
government authority exercised in taking [a defendant] into custody.” Riley, 134 S. Ct. at 2488
17
(citing United States v. Chadwick, 433 U.S. 1, 16 n. 10 (1977)). Even if a breath test might
appear objectionable, it is “clearly a less objectionable intrusion than the compulsory blood
samples allowed in Schmerber.” Burnett, 806 F.2d at 1450. Given this minimal invasion of
privacy, the only portion of the test that remains is assessing the needs of the government.
This Court has long recognized that combatting drunk driving is a legitimate
governmental interest that can be used by law enforcement to safeguard roadways. See Mich.
Dep’t of State Police v. Sitz, 496 U.S. 444, 451 (1990) (“No one can seriously dispute the
magnitude of the drunken driving problem or the States’ interest in eradicating it”). Further,
despite efforts by law enforcement, the problem continues to plague the United States. See
MADD – Drunk Driving Statistics, MADD, http://www.madd.org/drunk-driving/about/drunkdriving-statistics.html (noting that every two minutes a person is injured in a drunk driving crash,
that two in three people will be involved in such a crash in their lifetime, and that drunk driving
costs the United States $199 billion per year). This problem is so extraordinary that this Court
has authorized brief traffic stops without any suspicion in furtherance of eradicating it. Sitz, 496
U.S. at 455. If combatting drunk driving can justify a brief stop on no suspicion whatsoever, then
surely it can justify minimally intrusive chemical test, especially where a law enforcement
officer has established probable cause to make an arrest. Closely linked with this interest, the
government also has an interest in collecting evidence to successfully prosecute drivers who
choose to endanger the public by driving while impaired. The evidence of alcohol in the blood
begins to diminish shortly after drinking stops, Schmerber, 384 U.S. at 771, and evidence of
blood alcohol content is “critical evidence” of intoxication useful in demonstrating the guilt of a
drunk driver. McNeely, 133 S. Ct. at 1569 (Kennedy, J., concurring). Because of the large
problem presented by drunk driving, and the evidentiary value provided by the chemical tests at
18
issue, the government is clearly able to show a great and legitimate interest sufficient to
overcome the invasion a drunk driver’s remaining privacy interests.
Implied consent laws—adopted in all 50 states—have previously been considered within
the “broad range of legal tools” that states can use to enforce laws against driving while
impaired. McNeely, 133 S. Ct. at 1566. This Court should continue to support implied consent
laws by affirming the decision of the Supreme Court of the State of Setonia and holding that
implied consent laws are consistent with the Fourth Amendment.
II.
THE SUPREME COURT OF THE STATE OF SETONIA CORRECTLY HELD THAT
THE PETITIONER’S MOTION TO DISMISS WAS RIGHTFULLY DENIED
BECAUSE THE SIXTH AMENDMENT’S SPEEDY TRIAL CLAUSE DOES NOT
APPLY TO THE SENTENCING PHASE OF A CRIMINAL PROSECUTION.
This Court should look to the history and language of the Sixth Amendment, to the
purposes the Sixth Amendment serves, and to this Court’s precedent in devising the appropriate
remedy for violation of the right to a speedy trial to properly determine when the Sixth
Amendment applies to the different phases of a criminal prosecution. The Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury . . . .” U.S. Const. VI (emphasis added). The Sixth Amendment
applies to Setonia, as it does to all states, through the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213, 226 (1967). In considering this language, this Court has never held that
the Speedy Trial Clause applies to the sentencing phase of a prosecution; the closest it has come
is merely assuming that it applied for the sake of argument. See Pollard v. United States, 352
U.S. 354, 361 (1957) (“We will assume arguendo that sentence is part of the trial for purposes of
the Sixth Amendment.”) (emphasis added). Although some Circuits have reached that explicit
19
holding,1 none of these courts have conducted “a rigorous examination of whether the Speedy
Trial Clause . . . extends to a delay in sentencing.” United States v. Ray, 578 F.3d 184, 193 (2d
Cir. 2009). Most Circuits have—like this Court—only assumed that speedy trial protections
attach at sentencing;2 however, after careful inquiry, the Second Circuit has explicitly held that
“the Speedy Trial Clause of the Sixth Amendment, which governs the timing of trials, does not
apply to sentencing proceedings.” Ray, 578 F.3d at 198–99 (emphasis added). Like the Second
Circuit, this Court should hold that the Speedy Trial Clause does not apply to sentencing because
that conclusion is unsupported by the history and language of the Clause, because sentencing
does not implicate the same concerns as trial, and because applying the Clause to sentencing
would ultimately provide an unintended windfall for convicted defendants.
A.
The Sixth Amendment’s Speedy Trial Clause does not apply to the sentencing
phase of a criminal prosecution because the Clause’s protections, as historically
interpreted and understood by this Court, do not cover the sentencing phase of a
criminal prosecution.
In order to properly construe the Sixth Amendment, the Court has applied the tried-andtrue methodology of examining the words contained in the Constitution in their historical setting.
Ray, 578 F.3d at 194. Each of the words are assumed to have their normal and ordinary meaning.
United States v. Sprague, 282 U.S. 716, 731 (1931); see also Gibbons v. Ogden, 22 U.S. 1, 188
(1824) (“[T]he enlightened patriots who framed our [C]onstitution . . . must be understood to
1
To be exact, only five Circuits—the Third, Fifth, Sixth, Tenth, and Eleventh Circuits—have
held that the Speedy Trial Clause applies to the sentencing phase of a criminal prosecution. See
Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987); United States v. Howard, 577 F.2d
269, 270 (5th Cir. 1978) (per curiam); United States v. Thomas, 167 F.3d 299, 303 (6th Cir.
1999); United States v. Gould, 672 F.3d 930, 935 (10th Cir. 2012); United States v. Danner, 429
Fed. App’x 915, 917 (11th Cir. 2011). Notably, many of the decisions in these Circuits seem to
be premised on cases that made the same assumption as the Pollard Court.
2
These six Circuits are the First, Fourth, Seventh, Eighth, Ninth, and D.C. Circuits. See United
States v. Casas, 425 F.3d 23, 36 (2005); Brady v. Superintendent, Anne Arundel Cty. Det. Ctr.,
443 F.2d 1307, 1310 (4th Cir. 1971); United States v. Rothrock, 20 F.3d 709, 711 (7th Cir.
1994); Brooks v. United States, 423 F.2d 1149, 1151 (8th Cir. 1970); United States v. Martinez,
837 F.2d 861, 866 (9th Cir. 1988); United States v. Gibson, 353 F.3d 21, 27 (D.C. Cir. 2003).
20
have employed words in their natural sense, and to have intended what they have said.”).
Looking at the history behind the right to a speedy trial, this Court has recognized that this
fundamental right stems back to the days of the Magna Carta, if not earlier. Klopfer, 386 U.S. at
223. At its inception, the right contemplated avoiding a prolonged detention prior to a trial,
which would have been contrary to English custom. Id. Consistent with this, upon ratification of
the Bill of Rights, the Speedy Trial Clause outlined the rights of the accused with regards to
criminal prosecution—not those already convicted—and guaranteed an accused the right to a
speedy trial—and not a speedy sentencing. U.S. Const. amend. VI.
With this historical setting in mind, the inapplicability of the Sixth Amendment to
sentencing becomes evident. In Apprendi v. New Jersey, the Court explained that, historically, a
jury trial requires the truth of all accusations to be confirmed by a jury. 530 U.S. 466, 477 (2000)
(citing 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)). On the other hand,
sentencing was a formality that followed the trial by jury after a verdict was rendered, in which a
judge merely imposed the sentence prescribed by law. Apprendi, 530 U.S. at 479 (citations
omitted). Thus, the jury trial served as the necessary fact-finding for the imposition of a sentence,
but there was no jury involvement in the imposition of sentences; clearly, an indication that the
drafters of the Speedy Trial Clause intended there to be a separation of a trial by jury and the
imposition of a sentence. Ray, 578 F.3d at 195. In addition, early English commentaries on law
noted that “the next stage of criminal prosecution, after trial and conviction are past, . . . is that of
judgment.” Blackstone, supra at 368. Further, early decisions in American courts recognized this
separation of trial and sentencing—including decisions of this Court. See Ray, F.3d at 195–96
(citing several cases from 1784 to 1826 in various states). The distinction between a “trial” and a
“sentence” has carried through to modern times. See Black’s Law Dictionary 1569, 1735 (10th
21
ed. 2014) (defining “trial” as the “formal judicial examination of evidence and determination of
legal claims in an adversary proceeding” and defining “sentence” as the “judgment that a court
formally pronounces after finding a criminal defendant guilty . . . .”).
Just as there is a plain difference between “trial” and “sentence,” there is also a distinct
difference between someone who has been accused of a crime and someone who has been
convicted of one—and the plain language of the Speedy Trial Clause only applies to the accused.
See U.S. Const. VI. Certainly, someone convicted of a crime has no need “to be informed of the
nature and cause of the accusation” as an accused person would; this guilty person has already
been informed of the accusation at least during trial, if not before. Id. In addition, while this
Court has said “[a] person accused . . . of committing a crime is presumed innocent until proven
guilty beyond a reasonable doubt,” Kaley v. United States, 134 S. Ct. 1090, 1114 (2014), no
court in the United States has ever held that this same assumption applies to someone who has
been convicted of a crime. This is because “[u]pon a finding of guilt, . . . that presumption of
innocence dissipates” and the convicted defendant is merely awaiting the post-trial sentencing.
Ray, 578 F.3d at 198 (internal citations and quotation marks omitted). Finally, while this Court
has previously recognized that the Sixth Amendment provides the accused with the “right of a
trial by jury in criminal prosecutions,” Callan v. Wilson, 127 U.S. 540, 550 (1888), this Court
has explicitly held that “there is no Sixth Amendment right to jury sentencing, even where the
sentence turns on specific findings of fact.” 3 McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986).
Because the Speedy Trial Clause provides the accused the right to a speedy and public trial by a
jury, and because there is no right to jury sentencing for the convicted, the Clause cannot be
3
This remains true even after the decision in Hurst v. Florida, 136 S. Ct. 616 (2016). In Hurst,
the Court held that a man convicted and sentenced to death was entitled to fact-finding by a jury
instead of a judge; the fact that a judge alone imposes a sentence remains intact. See id. at 624.
22
applicable to the guilty person’s sentencing phase; to hold otherwise would be to ignore the
history of the Clause and to stretch its language beyond its plain meaning.
B.
The Sixth Amendment’s Speedy Trial Clause does not apply to the sentencing
phase of a criminal prosecution because that phase does not implicate any of the
“major evils” protected by the speedy trial guarantee.
In United States v. Marion, this Court explained that delays between arrest and trial—
again not acknowledging sentencing—impair an accused’s ability to present an effective defense,
and that the “major evils” against which the Sixth Amendment guards are the interferences in the
accused’s liberty, disruptions in his employment, drains on his financial resources, and the
creation of unnecessary anxiety. 404 U.S. 307, 320 (1971). Summarizing these “evils,” the Court
said that the Sixth Amendment is designed “to prevent oppressive pretrial incarceration; . . .
minimize anxiety and concern of the accused; and . . . limit the possibility that [his] defense will
be impaired.” United States v. MacDonald, 456 U.S. 1, 8 (1982). The most serious of these
concerns is the last, because hampering the accused’s defense interferes with the fairness of the
criminal justice system. Id. While recognizing that our time-honored criminal justice system
should not be plagued by these evils, a close examination of each reveals that they do not apply
to the case of the convicted defendant.
In the case of an accused defendant, the risk of oppressive pre-trial detention is a concern
because someone who is innocent might be deprived of his or her liberty. Ray, 578 F.3d at 197.
This is vastly different from a defendant that has been convicted, who may be constitutionally
deprived of his liberty consistent with the law. Meachum v. Fano, 427 U.S. 215, 224 (1976). The
Framers could not have intended to prevent the lawful incarceration of a man convicted of his
crimes. Further, the conclusion that the detention of the guilty lies outside of the Sixth
Amendment makes rational sense; a concern regarding pre-trial detention is irrelevant in the
23
context of a convicted defendant awaiting sentencing, since sentencing only occurs post-trial.
Ray, 578 F.3d at 197. Finally, although the dissent in the court below noted that “inmates remain
in county jails while awaiting sentencing” and that jails have a limited ability to meet some of
their needs, R. at 10, this Court has already rejected the notion that a difference in quality
between incarceration facilities can form the basis of a constitutional challenge. See Meachum,
427 U.S. at 225 (where the Court rejected a due process claim due to differences between
different prisons). Even if the Court were to consider the difference in facilities in the context of
a Sixth Amendment claim, the potential that a convicted defendant might be able to take
advantage of these differences is speculative at best, and would accordingly be rejected in a
proper analysis of the alleged violation. See United States v. Ewell, 383 U.S. 116, 122 (1966) (in
which the Court rejects an “insubstantial, speculative[,] and premature” Sixth Amendment
claim); Perez v. Sullivan, 793 F.2d 249, 257 (10th Cir.), cert. denied, 479 U.S. 936 (1986) (“The
benefits arguably available to [a] defendant in the penitentiary are entirely speculative . . . [and]
are unpersuasive.”). In consideration of all this, no delay in sentencing could ever create a risk of
oppressive pre-trial sentencing, which shows that the Speedy Trial Clause simply cannot apply at
that phase.
Moreover, the minimization of the anxiety and concern of the accused is not implicated
by the sentencing phase of a criminal prosecution. First and foremost, “the anxiety of an accused
is not to be equated for constitutional purposes with anxiety suffered by one who is convicted, in
jail, unquestionably going to serve a sentence, and only waiting to learn how long that sentence
will be.” Perez, 793 F.2d at 257. However, even assuming for a brief moment that the Speedy
Trial Clause equates a man accused with a man convicted (and it does not), these two
hypothetical men do not share the same anxiety and concern. “The anxiety and concern of one
24
who has been accused arises from the cloud of suspicion cast over a person who is presumptively
innocent.” Klopfer, 386 U.S. 222. A convicted man—who has lost his presumption of
innocence—does not suffer from a cloud of suspicion; instead, he suffers from the hovering
cloud of guilt that he has rightfully earned. Ray, 578 F.3d at 198 (citing Erbe v. State, 350 A.2d
640, 648 (Md. 1976)). Additionally, in this case, the defendant has only made a naked claim that
he “had depression and anxiety as a result of the delay [in sentencing].” R. at 4. Justice Alito—
then a judge on the Third Circuit—previously considered a similar claim of “anxiety and
concern”; in his dissent, he noted that “[i]f we are willing to find significant prejudice merely
because a defendant states that he or she suffered from anxiety and distress, we might as well
deem prejudice to exist in every case involving delay.” Burkett v. Fulcomer, 951 F.2d 1431,
1450 (3d Cir. 1991) (Alito, J., dissenting). Because any claimed anxiety by a convicted
defendant is not the same as the anxiety of the accused that the Sixth Amendment seeks to
minimize, and because any anxiety experienced by a convicted defendant at least appears to be
minimal and is presumptively deserved, this further reveals that the Clause is inapplicable to any
delay in sentencing.
Like the differences between the accused and the convicted regarding any anxiety and
concern experienced, the interests in limiting the impairment of a defense between the two
groups of defendants are manifestly different. For a defendant facing trial, the death or
disappearance of a witness, or the inability of a witness to recall past events can create prejudice
for the accused; clearly, a speedy trial can minimize this danger. Barker v. Wingo, 407 U.S. 514,
532 (1972). However, “when all that remains of a case is the imposition of a sentence, the danger
of losing witnesses or other evidence needed to mount an adequate defense is minimized, if not
eliminated completely.” United States v. Sanders, 452 F.3d 572, 580 (6th Cir. 2006). Granted, a
25
delay could potentially impair a defendant’s ability to show that he should receive a lighter
sentence. Ray, 578 F.3d at 198. However, the concern behind the Sixth Amendment is reliability
of the fact-finding process at trial—not sentencing. See Doggett v. United States, 505 U.S. 647,
655 (1992). Thus, any concern about impairment of a convicted man’s ability to introduce
mitigating factors at his sentencing is simply not the same as the concern about the accused’s
ability to prove his innocence. See Ray, 578 F.3d at 198.
Having analyzed all of the “major evils” held at bay by the Speedy Trial Clause, it is
clear that these same evils are not present during the sentencing phase of a criminal prosecution.
Accordingly, this Court should hold that the Sixth Amendment is not applicable to this phase.
C.
The Sixth Amendment’s Speedy Trial Clause does not apply to the sentencing
phase of a criminal prosecution because to hold otherwise would have absurd and
severe results for the public at large in light of this Court’s precedent on violations
of the Speedy Trial Clause.
Importantly, the Court has made it clear that dismissal of the criminal charges is the only
possible remedy for a violation of the Speedy Trial Clause. Strunk v. United States, 412 U.S.
434, 440 (1973). There is grave seriousness behind this remedy because “a defendant who may
be guilty of a serious crime will go free”; this makes the remedy for a Sixth Amendment
violation even more severe than one for a Fourth Amendment violation. Barker, 407 U.S. at 522
(noting that dismissal is more severe than application of the exclusionary rule or a reversal for a
new trial). Despite the severity of this remedy, the Court explicitly considered simply reducing a
prisoner’s sentence as an alternative, but rejected this remedy because it did not deal with the
difficulties imposed by a Sixth Amendment violation. Strunk, 412 U.S. at 439–440.
In contrast with the harshness of this remedy in the context of the accused, the same
remedy becomes downright draconian when applied to someone already convicted—at least
from the perspective of the justice system. Instead of setting a potentially guilty defendant free,
26
application of the remedy here will set a defendant free after he has been proven guilty—“[t]his
cannot be the remedy that the Framers intended.” R. at 7. In fact, this Court has already rejected
the idea that a convicted defendant should escape punishment altogether because of a court error
related to sentencing. Bozza v. United States, 330 U.S. 160, 166 (1947) (citing In re Bonner, 151
U.S. 242, 260 (1894)). That would be the case here, where much of the delay resulted from
waiting for the trial court to obtain and review Petitioner’s Report and to resolve Petitioner’s
motions. R. at 3 (five month delay for Report and two month delay to schedule sentencing); R. at
3–4 (two month delay for consideration of motion to dismiss and one month delay before
sentencing after reconsidering this motion). “The Constitution does not require that sentencing
should be a game in which a wrong move by the judge means immunity for the prisoner.” Bozza,
330 U.S. at 166. Clearly then, if speedy sentencing was a right under the Sixth Amendment,
there would be a conflict between this Court’s prior decisions. The only way to avoid this tension
would be to hold that the Clause does not extend to sentencing, so that a delay in sentencing does
not lead to a dismissal of a conviction. Ray, 578 F.3d at 193–94.
Because the only remedy available for a violation of the Speedy Trial Clause is dismissal
of the charges against the defendant, and because, as applied to convicted defendants, this result
is undesirable and in conflict with this Court’s precedent, the Court should hold that the Sixth
Amendment does not apply during the sentencing phase of a criminal prosecution.
27
CONCLUSION
A State can lawfully, and in compliance with the Fourth Amendment, criminalize a
person’s refusal to take a chemical test to identify the presence of alcohol in his or her blood
without first obtaining a warrant for three reasons. First, the statute only criminalizes a refusal to
take the test after a police officer could have seized the evidence sought under the searchincident-to-arrest exception. Second, in order to take advantage of the privilege of driving, the
statute makes a reasonable demand for consent to chemical testing, and the same statute offers
the subject a legitimate choice between continuing to consent or revoking that consent and
suffering the attendant penalties for that choice. Finally, starting with a presumption of
reasonableness regarding the statute, the alleged invasion of privacy pales in comparison to the
need to promote a legitimate governmental interest, and would therefore be reasonable under the
Fourth Amendment. Thus, the State of Setonia can lawfully criminalize a person’s refusal to take
a chemical test without first obtaining a warrant and still comply with the Fourth Amendment.
In addition, the Sixth Amendment’s Speedy Trial Clause does not apply to the sentencing
phase of a criminal prosecution for three reasons. First, the Sixth Amendment, as it has been
historically interpreted and understood by this Court, does not include the sentencing phase of a
criminal prosecution; simply put, “trial” does not include “sentencing” and an “accused”
defendant is different than a “convicted” one. Second, the sentencing phase does not implicate
any of the “major evils” that the Sixth Amendment was intended to protect against, because the
concerns of the accused and convicted are not the same. Finally, applying the Sixth Amendment
to the sentencing phase would have undesirable results given this Court’s precedent, because it
would allow defendants to escape justice after a jury has determined their guilt. For all these
reasons, the decision of the Supreme Court of the State of Setonia should be affirmed.
28
APPENDIX A
Relevant Constitutional Provisions
U.S. Const. amend. IV
The 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.
U.S. Const. amend. VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
A
APPENDIX B
Relevant Statutory Provisions
Setonia Statute § 169A.51 – CHEMICAL TESTS FOR INTOXICATION
Subdivision 1. Implied Consent; Conditions; Election of Test.
(a)
Any person who drives, operates, or is in physical control of a motor vehicle within this
state or on any boundary water of this state consents, subject to the provisions of sections
169A.50 to 169A.53 (implied consent law), and section 169A.20 (driving while
impaired), to a chemical test of that person’s blood, breath, or urine for the purpose of
determining the presence of alcohol, a controlled substance or its metabolite, or a
hazardous substance. The test must be administered at the direction of a peace officer.
(b)
The test may be required of a person when an officer has probable cause to believe the
person was driving, operating, or in physical control of a motor vehicle in violation of
section 169A.20 (driving while impaired), and one of the following conditions exist:
(1)
the person has been lawfully placed under arrest for violation of section 169A.20
or an ordinance in conformity with it.
Subdivision 2. Implied Consent Advisory.
(a)
Subject to paragraph (b), at the time a test is requested, the person must be informed:
(1)
that Setonia law requires the person to take a test:
(i)
to determine if the person is under the influence of alcohol, controlled
substances, or hazardous substances;
(2)
that refusal to take a test is a crime; and
(3)
that the person has the right to consult with an attorney, but that this right is
limited to the extent that it cannot unreasonably delay administration of the test.
B