Tai Christopher Bogan
Tai Christopher Bogan, DUI / DWI Attorney - Modesto, CA
Posted about 4 years ago.

There are pending appeals in some courts that have asked for further briefing in light of McNeely. Some courts have even asked "Does McNeely apply retroactively in light of United States v. Davis"

As you are likely familiar Davis refused to extend Arizona vs. Gant retroactively or at least they rule that the Leon good faith exception applied and therefore the exclusionary rule would not apply in pending cases.

In any event, I believe that McNeely is retro and applies to pending cases, since McNeeley didn't over rule Schmerber but simply restated the rule that "under the totality of the circumstances" the evidence in Schmerber case was not to be excluded.

But yes, it is a very interesting developing case.

Joshua Kaizuka
Joshua Kaizuka, DUI / DWI Attorney - Sacramento, CA
Posted about 4 years ago.