Saturday, April 30, 2011

DUI Appeal - Wyoming Drunk Forklift Operator

In Harvey v. State of Wyoming, --- P.3d ----, 2011 WL 1533156 (Wyo.), 2011 WY 72, NCDD member Michael Vang appeared before the Supreme Court of Wyoming (for at least the 2d time in 1 year). Here, the defendant was driving a forklift at the speed of about 5 miles per hour on the shoulder of a highway. The issue on appeal was whether the highway patrolman had reasonable suspicion to contact Appellant for failure to equip his forklift with a slow moving vehicle emblem.

The driver did not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argued that the failure to display such an emblem was not a violation of Wyo. Stat. Ann. § 31–5–921(d) and, accordingly, it did not provide the trooper with probable cause to initiate the traffic stop.

The court noted that the statute required “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour” to display a slow moving vehicle emblem, and then concluded that the statutory language therefore unambiguously included forklifts.

Thus, the court found that the officer had a valid basis to stop the vehicle for failing to display the emblem, and upheld the implied consent suspension.

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DWI Appeal - NJ Test Refusal Doesn't Require Proof of Machine Accuracy

In State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.) the defendant appealed his conviction for a test refusal, alleging amongst other things that there was no evidence that the breathalyzer test that he refused was reliable or admissible. Specifically he alleged:


The appeals court first cited to an earlier case, In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981), where the defendant asserted that the State must prove that a qualified operator of the breathalyzer was available at the time of the test request. "We disagreed, holding that such a requirement would infer a prerequisite to suspension in addition to those specified in the refusal statute."

The court then rejected the defendant's position that the State must 'prove-up' the admissibility, accuracy, or reliability of the test that the defendant had refused.

EDITORS COMMENT: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?

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Friday, April 29, 2011

DUI cases not being prosecuted

Wellington, Kan. —
Sumner County Attorney Evan Watson says he won’t prosecute based on evidence gathered from Intoxilyzer and law enforcement officials say that needs to change.
An Intoxilyzer machine was recently given to the County to be used to measure breath alcohol. Sheriff’s Department officials say it would save the County money, as well as make it easier to get evidence for DUI cases.
The dismissal of cases isn’t coincidence, Watson readily admits he doesn’t convict based on Intoxilyzer.
“...someone has reported that we are refusing to prosecute Intoxilyzer cases. That is a fact...” said Watson.
Watson says Sumner County Sheriff Gerald Gilkey obtained the Intoxilyzer machine from the Kansas Department of Health and Environment without first talking to him about it.
“He did so without consulting with me and giving me a chance to discover whether or not that’s a good idea or a bad idea for prosecution of cases in the courtroom, now he will, and I admit, he will probably dispute that and say, ‘Well we did give Watson’s office notice. We had a training session, late last year and [Deputy Attorney] Joe Baca came out and we mentioned it to him and he said, ‘Yeah sure, no problem, go ahead we’re right on board, go do it,’” said Watson.
He says Baca disputes saying that and that his acceptance was taken out of context.
Sumner County Sheriff’s Department Capt. Mike Yoder said it was a miscommunication on both sides.
“We had a meeting with the deputy county attorney on an unrelated deal and the Intoxilyzer just came up. There was some discussion on us putting it to use. We assumed that he was going to talk to Evan about it and I think he assumed we were going to do’s no one’s fault and it’s both of our faults,” Yoder said.
Deputies have been put through about 15 hours of training on the device and have started building cases on evidence collected from the machine, only to have those cases thrown out by Watson.
Documents provided by the Sheriff’s Department show dismissal letters from Watson on several occasions. At least three cases from February, March and April have been dismissed because “breath evidence has not been approved” by Watson’s office or there were no blood tests done.
In an affidavit submitted in March, one suspect admitted he had “drank four cocktails and four beers at a bar in Winfield,” had given clues of impairment during field sobriety tests, was over the legal limit on both a preliminary breath test and on the Intoxilyzer machine — however the case was dismissed because “our office is not to consider breath test results as evidence of DUI.”
Watson says he has tried to understand the machine and its evidence, but has run into problems.
“There at the training, the machine malfunctioned. Deputy [Matt] Pickens was there. It was supposed to return an invalid sample error but instead it returned a .049. It wasn’t supposed to do that and the instructors there came over to fuss with the machine...and it did it again. So that did not instill me with confidence in the technology and recently I was informed by Gordon Fell, at Belle Plaine PD that he now has a DUI case where the suspect gave both blood and breath and the breath test result was .079 which is below the legal limit and the blood test was .10 which is considerably above the legal limit,”
Watson says until he knows more about the Intoxilyzer machine and how to prosecute evidence based from it, he won’t prosecute cases based on that evidence.
“At the training, I first visited face to face with the Sheriff and Deputy Yoder. I suggested to Deputy Yoder that until I get the chance to go through the training and consider this further, read the articles to try and understand what the science is and any legal issues involved, I would suggest you guys stick with blood and that for whatever reason was not followed through so cases began to come in with the Intoxilyzer being the sole evidence in the case...and I decided we’re not going to prosecute those until we make a decision on it and to please stick with the blood until we can get this all sorted out so that’s where from sometime in February to the present they have been some Intoxilyzer cases and it’s my understanding that someone who is upset about it, reported it and wants something down about it, but it’s my contention on how evidence is presented in the courtroom. It’s determined by me and I’m happy to visit about it and talk to the officers about it and study the science and that but ultimately you have to do what’s right for the courtroom,” said Watson.
“I feel I have made and continue to make a sincere effort to educate myself and understand the issues. I have gone to the training. I have visited with the Sheriff.... I obtained articles directly from the KDHE, who are the custodians of these machines, reviewed those articles and some of the issues in those articles about Gastroesophageal reflux and different things that are reported to cause an Intoxilyzer to be at variants with the truth of the blood alcohol level,” said Watson.
Watson says he’s not the only district attorney not accepting of the Intoxilyzer technology.
“It’s just not as good as blood in my opinion,” said Watson. “There are a lot of jurisdictions, I’m sure, that do use breath, I think that certainly the larger jurisdictions...maybe it’s just a phenomenon of having such a high volume that you are willing to accept, ‘Hey, whatever we just want to get the cases through the fastest. We don’t really care how accurate they are, just is it faster than blood.’”
As far as being faster, that’s not true, Sedgwick County Sheriff Robert Hinshaw says.
Intoxilyzer makes the testing process faster, but there is still additional paperwork because of it.
“When I started, from the time I stopped a potential DUI until I was walking out of the jail was right at an hour and now it’s a multi-hour process because there are various forms that the arresting officer has to complete with the suspect...and then they either take the test or refuse it, and then that, of course, trips additional paperwork,” said Hinshaw. “The Intoxilyzer is obviously more efficient from the perspective that you don’t have to get with a doctor or phlebotomist to have the blood drawn, it is a much faster way to get officers back on the streets and it’s readily accepted in court...”
Hinshaw says his department has been using some form of breath tests since the 70s. Departmental policy leaves the choice of blood or breath test up to the officer on the case.
State statute says either blood or breath can be submitted as a blood alcohol test, Hinshaw said.
Watson says additional costs, such as a scientist in the courtroom wouldn’t be reimbursed to the County.
“I can’t find one that allows the court to order the defendant to pay back the state of Kansas for anything associated with having a scientist in the courtroom on a breath case,” said Watson.
“Based on the information that I’ve gathered, the reasons for it, what we can expect to see about it, I just think it’s asking for trouble and I’m not inclined to do it,” said Watson. “I try to do what’s best for the courtroom...there’s quite a bit to it, I think it’s a good discussion, I just don’t think it’s what’s best for the courtroom,”
Yoder says the ball is in Watson’s court now.
“...We’ve received the training, it’s an approved method. We would like to be able to use it. I think once the County Attorney’s office gets to the point where they are comfortable with it, maybe understand it better...I think the key to this is for us to sit down, work towards a common goal and continue to use the device,”
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Thursday, April 28, 2011

Governor wants crime lab in charge of Datamaster - WCAX.COM Local Vermont News, Weather and Sports-

Why does the Governor want this? Becuase all of the results in the past year were wrong! Of course, this is just one of many examples of machines improperly calibrated.

Governor wants crime lab in charge of Datamaster - WCAX.COM Local Vermont News, Weather and Sports- Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Appeal - Minnesota Refusal Reversed From Underinsured Cops

This case is brought to DAD through the watchful eyes of NCDD Member Doug Hazelton. In State of Minnesota v. Hester--- N.W.2d ----, 2011 WL 1563683 (Minn.) the defendant was convcited of criminal test refusal. A person can commit criminal test refusal in violation of Minn.Stat. § 169A.20, subd. 2 (2010), only if he or she refuses a request to take a chemical test of the person's blood, breath, or urine that is made by a “peace officer,” as defined in Minn.Stat. § 169A.03, subd. 18 (2010). On appeal, the Minnesota Supreme Court held that because the Lower Sioux did not comply with Minn.Stat. § 626.91, subd. 2(a)(2), by failing to carry the required liability insurance limits at the time of appellant's arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test.

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DUI Lawyer Sues Strip Club, Says He Was Too Drunk to Agree to Nearly $19K in Charges - News - ABA Journal

DUI Lawyer Sues Strip Club, Says He Was Too Drunk to Agree to Nearly $19K in Charges - News - ABA Journal Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Wednesday, April 27, 2011

OUI Appeal - Massachusetts Confrontation Clause and Probation Records

This case comes to DAD thanks to the watchful eyes of attorneys Tom Workman and Greg Oberhauser. In Commonwealth v. Ellis, No. 10-P-419 (decided 4-25-11) the defendant challenged the proof of his prior convictions which were made by introduction of both a Registry of Motor Vehicles (RMV) records and a probation record as violative of his confrontation clause rights, and he also claimed that there was insufficient identification evidence to connect the defendant to the prior OUI conviction on which the judge relied, of OUI as a third offense. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.

Citing to the US Supreme Court's ruling, and subsequent state cases, the appeals court wrote that "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial." Melendez-Diaz, 129 S.Ct. at 2539-2540. Therefore they held that the certified docket conviction record in this case was properly admitted absent confrontation.

The defendant claimed that the RMV records were created by the government solely to prove an element of defendants case - prior convictions. The appeals court responded that "[u]nlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records."

On the other hand, this court found that the probation reports were admitted in violation of the Confrontation Clause:

"In contrast, there was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832.

The testimonial aspects embedded in the probation certification are discernible when it is considered that the certificate was prepared by a person who, in the writing thereof, engaged in certain deliberative decisions, and formulated evaluative statements and opinions in framing answers to the matters appearing on the pre-printed form lines of the probation certification, so that the certification could be used in litigation. For example, in this case, in response to the line inquiry on the certification about a "[p]hoto I.D. (if available)," the writer stated, "N/A"; in response to the line inquiry whether "[t]he defendant was assigned to: [a]lcohol [e]ducation [and] [t]reatment [p]rogram[s]," the writer stated, "N/A"; and in response to the line inquiry concerning the involved "[p]olice [d]epartment (if known)," the writer responded, "State." The compilation of such information required that the writer of this document review certain other documents (which are not specified in any way), engage in a deliberative process, and enter evaluative and opinion-based responses to the various certification line inquiries. Hence, there is a testimonial component which underlies what the writer did in reviewing documents and answering questions on the probation certification form. These actions and nonactions by the writer were ones that would be subject to interrogation in cross-examination. In sum, the "Certification of Probation Information and Prior OUI Offense" implicates confrontation rights under Melendez-Diaz. [FN7] It was error to admit the document absent an opportunity at or before trial to cross-examine the writer."

Unfortunately, the appeals court found that, even in the absence of the erroneously admitted probation record, the remaining admissible evidence was sufficeint to prove both the prior conviction and that the defendant was the offender in the prior case. However, the case is helpful for the propositions regarding probation reports.

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Tuesday, April 26, 2011

DUI Appeal - Kansas One-Legged Man Loses Preliminary Hearing

In State of Kansas v. Adams, Slip Copy, 2011 WL 1475976 (Table) (Kan.App.) the State appealed the dismissal of a complaint for DUI following a finding of no probable cause. Around 10:30 one evening in September 2008, Officer Jeffrey Browne, on duty as a Hoisington police officer, received a telephone call from his wife. She was driving toward town and reported a car had nearly sideswiped her as she passed it. Before that, the car had swerved back and forth in its lane. She also told him the car's bright lights came on and off as she was passing. Both his wife's car and the car she had passed drove by Officer Browne's location and he pulled in behind the car his wife had passed. The officer saw the brake lights come on several times and the car suddenly braked as it turned onto a different street. He noted the tag light was not working but saw no other infractions. Officer Brown stopped the car.
Officer Browne testified Adams was not unsteady while he exited the vehicle and his speech was fair. However, Adams had an odor of alcohol, his clothes were dirty, his eyes were bloodshot and glazed, he had trouble walking, and there was a slight slur to his speech. Officer Browne asked for Adams' driving license, but Adams did not have it with him. Adams gave Officer Browne his insurance papers without fumbling.

At some point, Officer Browne asked Adams about the swerving. Adams explained that he was running out of gas. Later, Officer Browne testified that he did not believe Adams told him he was trying to slosh gas residue in the tank so that he could get gas into the engine.

Officer Browne testified Adams walked with a limp and used the car for balance. Officer Browne admitted, however, that Adams told him he does not have much of a left leg. This was the leg Adams was having trouble moving. Officer Browne said Adams swayed slightly while standing. When Officer Browne asked Adams to perform field sobriety tests, Adams agreed but noted he had only one leg. Adams was unable to perform the walk-and-turn test and the one-leg test. Officer Browne testified Adams performed the horizontal gaze nystagmus test but provided no additional testimony on this subject as a result of defense counsel's objection to the evidence.

Officer Browne testified he asked Adams to take a preliminary breath test and Adams refused. The appeals court rationalized that since there were no findings indicating a lack of credibility, then the trial court was obligated to consider the four factors of which there was no dispute: Officer Browne's testimony about the braking by Adams, Adams' bloodshot and glazed eyes, his slurred speech, and his swaying while standing. The appeals court was critical of the fact that the trial court simply did not address those factors.

Kansas' law on preliminary hearings and probable cause is unusual (at least to this author):

"Because this was a preliminary hearing, the rules are somewhat different. When the district court evaluates the evidence presented at a preliminary hearing, the court must consider the defense and pass judgment on the credibility and competency of all witnesses. When there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony that is most favorable to the State."

Concluding, the court stated:

"Here, there was a conflict between the testimony of Officer Browne's wife about Adams' erratic driving within his lane of traffic and Adams' explanation that he was almost out of gas. That created a question of fact for the jury and the court was required to accept the version of the testimony most favorable to the State. In this case, that would be evidence of impaired driving caused by alcohol consumption.* * * * To show probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief that the defendant is guilty. Corbett, 31 Kan.App.2d at 71. We find there was sufficient evidence here.* * * * We reverse the dismissal of all counts and remand the case to the district court."
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Monday, April 25, 2011

DUI Appeal - Wisconsin Ambien Defense and Alcohol

In State of Wisconsin v. Alswager, Slip Copy, 2011 WL 1485477 (Wis.App.), the defendant appealed pro se from a judgment convicting him after a jury trial of operating a motor vehicle while under the influence of an intoxicant, fifth or greater offense, and of operating a motor vehicle with a prohibited blood alcohol concentration (BAC) of 0.02 grams or more. (Yes I said 0.02!). He had a Blood alcohol concentration between 0.20 to 0.249. He attempted to defend his case at trial based upon a mistaken consumption of one of his wife's 5mg tablets of Ambien, which then caused him to black out and begin drinking to excess. The defendant went through several lawyers (a quite interesting read in and of itself) and one of them submitted his blood to testing at a lab that could only measured amounts of Ambien greater that 25 ng/ml (Limit of Detection). That lab's result came back 'negative' for an amount in excess of 25ng/ml. He then fired that lawyer and hired another. The new lawyer submitted the blood to Rocky Mountain Labs (RML), but the lab didn't have the result available by the time of trial. The judge denied the defendant's motion to continue. The defendant proceeded to trial and there testified that he had taken Ambien, and did not remember anything thereafter until awaking in a jail cell. The jury found him guilty.

After trial, the Rocky Mountain Lab reported that they had found Ambien in the blood sample consistent with ingesting one 5 milligram tablet of Ambien. Dr. Lantz of RML prepared an affidavit in which Lantz attested that he could testify that ingesting one five milligram tablet of Ambien “could” render Alswager incapable of knowing the difference between right and wrong and that one side effect of Ambien is consuming and ingesting food and liquids without memory or knowledge at the time of ingestion.

Alswager sought a new trial based on newly discovered evidence and in the interest of justice. He claimed that he could have presented a defense of involuntary intoxication. Alswager asserted that the post-trial lab results and the evidence as set forth in Lantz's affidavit would corroborate the defense raised by him at trial; namely, that he believed he had mistakenly taken an Ambien pill prescribed for his wife, and this caused him to involuntarily drink alcohol and drive while intoxicated. Relying on State v. Gardner, 230 Wis.2d 32, 601 N.W.2d 670 (Ct.App.1999), he contends that after he mistakenly took the Ambien pill, he became incapable of knowing the difference between right and wrong and therefore involuntarily drank and drove, entitling him to an involuntary intoxication instruction.

WIS. STAT. § 939.42(1) provides that an intoxicated or drugged condition is a defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed. The appeals court wrote:

“The involuntary intoxication standard, rather than being congruent with the lack of specific intent standard for voluntary intoxication, is coextensive with the mental responsibility test set forth in [WIS. STAT.] § 971.15(1).” Gardner, 230 Wis.2d at 38.FN8 The effects of a prescription medication can form the basis for an involuntary intoxication defense. Id. at 40. However, the involuntary intoxication defense is limited to (1) the defendant's unawareness of what the intoxicating substance is, (2) force or duress, or (3) medically prescribed drugs taken accord ing to prescription. Id. at 41–42. This does not include patients who knowingly take more than the prescribed dosage or mix a prescription medicine with alcohol or other controlled substances, or who voluntarily undertake an activity incompatible with the drug's side effects, like driving after taking a sleeping pill."
Struggling with the issue of whether to allow for the defense in this case, the appeals court wrote:

Under Gardner, a defendant who knowingly mixes a prescription sleeping pill with alcohol is not entitled to an involuntary intoxication defense. Id. Moreover, even though Gardner held that the effects of a prescription medication could give rise to an involuntary intoxication defense, that case did not involve a charge of operating a motor vehicle while intoxicated or with a prohibited BAC. See id. at 35. This court has found no case law applying the involuntary intoxication defense to an operating while intoxicated charge. We recognize that Alswager is arguing that he is entitled to raise an involuntary intoxication defense because, unlike a defendant who knowingly mixes a prescription sleeping pill and alcohol, he did not know he was ingesting Ambien."

Ultimately, the appellate court denied the appeal and skirted the issue as to whether involuntary intoxication would in fact apply to the case:

"[E]ven assuming that an involuntary intoxication defense could apply to the charges of operating a motor vehicle while intoxicated or with a prohibited BAC, as contended by the State, the post-trial evidence proffered here was insufficient to entitle Alswager to a new trial based on newly discovered evidence. Lantz opined only that ingesting one Ambien tablet “could” render Alswager incapable of knowing the difference between right and wrong. While he also opined about potential extreme side effects from Ambien like sleep driving and the unknowing consumption of liquids, nothing in the affidavit of Lantz provided a basis to conclude that Alswager, in fact, experienced such side effects and consumed alcohol and drove without knowing the difference between right and wrong. Because any conclusion that Alswager suffered effects that rendered him incapable of distinguishing between right and wrong would be purely speculative, the new evidence that Alswager ingested one Ambien pill on the day of his arrest was irrelevant and immaterial to the issues in this case. The post-trial lab results and affidavit of Lantz provide no basis to conclude that there is a reasonable probability of a different result at a new trial."

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Sunday, April 24, 2011

DWI Appeal - NJ Attorney's Own DWI Merits NY Sanction Too

In the case of In Re --- N.Y.S.2d ----, 2011 WL 1421808 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 03004, an attorney licensed in both New Jersey and New York pleaded guilty to DWI and Leaving the Scene for an offense occurring in New Jersey. He entered a Pre–Trial Intervention Program. The New Jersey Supreme Court publicly admonished respondent for his criminal conduct On appeal, the New York court also imposed reciprocal discipline in the form of a public censure.

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DUI Appeal - North Dakota Blood Test Discovery Mistakes Not Sanctioned

In North Dakota v. Sauer, --- N.W.2d ----, 2011 WL 987169 (N.D.), 2011 ND 47, the defendant filed a detailed discovery request for information, which included any blood testing notes or reports. The State claimed that they had complied with the request, and the matter was set for trial some 4-5 months later. Lisa Hentges, a forensic scientist with the North Dakota Crime Lab, testified about her analysis of Sauer's blood sample. During Sauer's cross-examination, Hentges mentioned she had a case file, which included her notes and a print out of the test results from the blood tests she performed on Sauer's blood sample. Sauer asked the district court for a brief recess so he could review the file because he claimed the State did not provide him with a copy of the file in response to his discovery request. The State admitted it did not provide Sauer with a copy of Hentges' file, but claimed the discovery request was very detailed and it “didn't notice” the request for the testing notes.

The court questioned Sauer's attorney about why he did not move to compel discovery of the testing notes, and Sauer's attorney said he did not know they existed. The court provided Sauer's attorney with the brief break he requested to allow him to view the file. After the break, Sauer's attorney requested a continuance of the trial. The court denied Sauer's request for a continuance and found the case file was not material to preparing a defense and Sauer should have brought a motion to compel if he felt he did not have something he needed. Sauer continued his cross-examination of Hentges. Later, the court ordered the State to provide a copy of the case file to Sauer's attorney after court concluded for the day.

The trial court granted Sauer's request for a brief continuance to allow his attorney to inspect the case file before continuing to cross-examine Hentges. The court also ordered the State to make a copy of the case file available to Sauer's attorney after the first day of trial and he had until the next afternoon to look at the case file. Sauer's attorney failed to pick up the copy of the file. The court granted Sauer's request to make the case file a trial exhibit, but Sauer's attorney indicated he did not want the case file admitted into evidence at the trial.

On appeal, the Supremes found that the trial courts offer of a brief recess was sufficient to remedy the violation. "Sauer has not shown he was significantly prejudiced by the State's discovery violation. We conclude the court did not abuse its discretion by denying Sauer's request for a continuance." Of course, like most defense attorneys in this field, the information in the lab file was not likely decipherable by an untrained attorney in the absence of an expert's review of the same, and one to one-and-a-half days of a 'recess' wouldn't let the defense attorney get up to speed. The Supreme Court opinion fails to note that likely dilemma.

If there is one good morsel to take from the opinion, it is the following unenforced threat by the Court:

"Our opinion in this case places all prosecutors on notice that N . D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional non-compliance and systemic disregard of the law if the conduct is commonplace."

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Friday, April 22, 2011

DUI Appeal - Illinois DUI Drug Law Based on Slightest Amount

In People v. Martin, --- N.E.2d ----, 2011 WL 1499909 (Ill.), the defendant was convicted of Aggravated DUI causing death. The evidence at trial revealed that the defendant crossed the centerline while traversing a curve in the road, hitting another vehicle head-on and killing the 2 occupants. A blood test revealed no drugs in the system. A gas chromatography mass spectrometry test revealed no drugs in the urine. A more specific mass spec test eventually revealed a barely detectable amount of a metabolite associated with methamphetamine. The defendant confided to a friend that “I have done crystal meth before, but I was not on crystal meth that night.” The State presented testimony from Anderson, a State Police forensic scientist, who analyzed two urine samples taken from the defendant that night at the hospital. Anderson stated unequivocally, and to a reasonable degree of scientific certainty, “I found methamphetamine in both of the urine samples that I tested .” Dr. Staubus stated that the urine samples did not contain detectable or realistic amounts of amphetamines, but he did not dispute that there was any amount, even a trace, of methamphetamine in the defendant's urine.

The Supreme Court found that the law does not require the State to prove that the drugs caused or contributed to the accident in order for a defendant to be guilty of the felony charged. rather, all that is required is that the defendant's driving must be a cause of the accident, and that there is some trace amount of a controlled substance in his system.

The Court reasoned that requiring the State to prove actual impairment, or that the drugs contributed to or caused the death of the person, was not what was intended by the legislature:

“There is no dispute that the statute is intended to keep drug-impaired drivers off of the road. At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and drug to drug. In this range, depending on the drug and depending on the person, some will be impaired and some will not be impaired at all. * * ** * * The flat prohibition against driving with any amount of a controlled substance in one's system was considered necessary because ‘there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is * * * driving under the influence.’ “

Citing to other cases in Illinois and Arizona, the Court continued:

"Indeed, while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs. Rodriguez, 398 Ill.App.3d at 439, 339 Ill.Dec. 158, 926 N.E.2d 390. “Unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment from such drugs because they are fundamentally different from alcohol. Essentially, there can be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability.” State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (Ariz.Ct.App.1994).

Concluding, the Court stated:

"A driver with controlled substances in his body violates section 11–501(a)(6) simply by driving. When an aggravated DUI charge is based on a violation of that section, section 11–501(d)(1)(F) requires a causal link only between the physical act of driving and another person's death. In such a case, the central issue at trial will be proximate cause, not impairment."

Editors Comments: People v. Martin (found here: is a complete embarrassment to our state's jurisprudence, in my opinion. Aggravated DUI Causing Death is in fact our state's version of vehicular homicide, as it is referred to in other states. (We used to call it Reckless Homicide) In Martin, the Supreme Court held that a person could be convicted of Aggravated DUI Causing Death when the amount of drug found ONLY in their urine (the blood was clean) was so infinitesimal that it couldn't have impaired anyone (in fact it was so small that it also couldn't be found using a gas chromatography/ mass spectrometry -the gold standard- and had to be found using a more specialized form of mass spectrometry). In other words, if 2 people performed the same act - crossing the center line and negligently causing the death of another - then the driver found with .001 nanogram of a controlled substance goes to jail for 3-14 years, while the other isn't even charged with a crime.

Frankly, the above example IS what People v. Martin is all about - sentencing past drug users to jail as status offenses. An equal protection violation. Can you imagine what will happen when modern science is so accurate that they can find an amount of drug in your system from years ago (they can already use your hair to go back about one month per inch of length)?

Not to mention, that the Supremes erroneously claimed that the legislature intended the proximate cause issue to apply only to bad driving and not to the use of the drug itself. How did they do that? They took another statute - driving with any amount in the system - a misdemeanor - and used that statute to create out of whole cloth the fallacy that these senators also meant that there need not be a proximate cause to the drug use when they passed AN ENTIRELY DIFFERENT SET OF LAWS MAKING AGG DUI DEATH A FELONY.

My understanding of statutory construction in criminal cases suggests that ALL penal statutes are strictly construed in favor of the accused. People v. Martin doesn't even mention this construct, because to acknowledge its existence would force them to apply it.

And here's another insult to both forensic science and intellectual thinking - the Supremes held that, since one cannot tell if a person is impaired from a drug based on the level in their system alone, then we should just presume EVERYONE is impaired. Read that out loud to yourselves slowly - since we don't know who is actually guilty of the crime, we should make everyone guilty of the crime! In fact, there are presumptive levels of drug impairment that are published in medical journals, as well as employed in certain states. Further, there IS a way to determine whether someone is under the influence of drugs - it's called a medical EXAM! That's right - doctors and toxicologists are specifically trained to determine if a person is being 'influenced' by drugs in their system. And Mr. Martin's doctors, as well as ALL of the experts, could not say the defendant was impaired. So what do the Supremes decide is the best course of Illinois Jurisprudence? Find him guilty due to a LACK of REAL EVIDENCE.

People v. Martin takes the concept of strict liability (there is no mens rea for DUI) and combines it with the newest concept (no causation for the actus reus either) and makes Illinois the class clowns of modern forensic/criminal law. Could you imagine if we took all misdemeanors, and turned them into homicides simply because there was a death that was caused by from an unrelated act of negligence? Shame, shame, shame......

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Michigan: Police Search Cell Phones During Traffic Stops

ACLU seeks information on Michigan program that allows cops to download information from smart phones belonging to stopped motorists.

The Michigan State Police have a high-tech mobile forensics device that can be used to extract information from cell phones belonging to motorists stopped for minor traffic violations. The American Civil Liberties Union (ACLU) of Michigan last Wednesday demanded that state officials stop stonewalling freedom of information requests for information on the program.

ACLU learned that the police had acquired the cell phone scanning devices and in August 2008 filed an official request for records on the program, including logs of how the devices were used. The state police responded by saying they would provide the information only in return for a payment of $544,680. The ACLU found the charge outrageous.

"Law enforcement officers are known, on occasion, to encourage citizens to cooperate if they have nothing to hide," ACLU staff attorney Mark P. Fancher wrote. "No less should be expected of law enforcement, and the Michigan State Police should be willing to assuage concerns that these powerful extraction devices are being used illegally by honoring our requests for cooperation and disclosure."

A US Department of Justice test of the CelleBrite UFED used by Michigan police found the device could grab all of the photos and video off of an iPhone within one-and-a-half minutes. The device works with 3000 different phone models and can even defeat password protections.

"Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags," a CelleBrite brochure explains regarding the device's capabilities. "The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps."

The ACLU is concerned that these powerful capabilities are being quietly used to bypass Fourth Amendment protections against unreasonable searches.

"With certain exceptions that do not apply here, a search cannot occur without a warrant in which a judicial officer determines that there is probable cause to believe that the search will yield evidence of criminal activity," Fancher wrote. "A device that allows immediate, surreptitious intrusion into private data creates enormous risks that troopers will ignore these requirements to the detriment of the constitutional rights of persons whose cell phones are searched."

The national ACLU is currently suing the Department of Homeland Security for its policy of warrantless electronic searches of laptops and cell phones belonging to people entering the country who are not suspected of committing any crime.

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Doubts on accuracy of speed cameras

Interesting article:

Mr. Foreman, the owner of Eastover Auto Supply in Oxon Hill, examined dozens of citation photos of his company’s trucks that were issued along a camera-monitored stretch of Indian Head Highway his employees frequently travel.
The camera company, Optotraffic, uses a sensor that detects any vehicle exceeding the speed limit by 12 or more mph, then takes two photos of it for identification purposes. The photos are mailed to violators, along with a $40 ticket.
For each ticket, Mr. Foreman digitally superimposed the two photos — taken 0.363 seconds apart from a stationary point, according to an Optotraffic time stamp — creating a single photo with two images of the vehicle.
Using the vehicle’s length as a frame of reference, Mr. Foreman then measured its distance traveled in the elapsed time, allowing him to calculate the vehicle’s speed. In every case, he said, the vehicle was not traveling fast enough to get a ticket.
So far the judges have agreed.

What about in IL?
Camera speeding tickets require that workers are present when using an automatic camera to catch speeders (not when a LEO issues the ticket, hence no more “when lights are flashing” signs).
625 ILCS 7/10 requires the State to prove that "one or more workers were present in the construction or maintenance zone when the violation occurred." (The offer of proof is new (2007), not the requirement that the devices operate only when workers are present.)
625 ILCS 5/11-605.1 "Special limit while traveling through a highway construction or maintenance speed zone" is the traffic violation for speeding in construction zones for purposes of worker safety and dangerous conditions (e.g. lane changes, barricades, etc.). BUT this does not require the presence of workers.

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Tuesday, April 19, 2011

DUI Appeal - Pennsylvania - Dice, Fresheners and Reasonable Suspicion

In Commonwealth v. Shabazz, --- A.3d ----, 2011 WL 1459160 (Pa.Super.), 2011 PA Super 81, the defendant appealed the denial of his motion to suppress based upon an illegal stop. The driver claimed that the stop of his vehicle for having foam dice and pine tree air fresheners was illegal. The appeals court first noted that in Pennsylvania, it is only illegal to have items hanging from the rearview mirror when they materially obstruct the driver's view. The defendant in fact cited to a prior Pennsylvania decision where it was held that the stop of a driver who had pine tree air fresheners was illegal, as there was no reasonalbe suspicion of a violation of the statute.

Distinguishing that prior ruling, the appeals court here held that the reason that the prior decision was in favor of the defendant was not based upon the item that was hanging from the mirror - rather the previous case was held in favor of an illegal stop based "on the officer's lack of an articulable and particularized description of the objects he observed hanging from the rearview mirror, and the impact of those objects on the visibility through the windshield." When addressing items hung from a rearview mirror, the court held that “the arresting officer's observations must establish not merely the presence of an object hanging from the rearview mirror, but must raise reasonable suspicion that the object materially obscured, obstructed or impaired the driver's vision through the front windshield.”

The appeals court then enunciated some important principles of law regarding the determination of reasonable suspicion at a hearing on a motion to suppress:

"The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances. It is the duty of the suppression court to independently evaluate whether, under the particular facts of a case, an objectively reasonable police officer would have reasonably suspected criminal activity was afoot. * * * “[I]n order to establish reasonable suspicion, an officer must articulate specific facts in addition to inferences based on those facts, to support his belief that criminal activity was afoot.” (emphasis in original). Thus, the facts must be testified to in support of the reasonableness of the officer's suspicion occasioned by his or her pre-stop observations."
In regard to forcing an officer to actually articulate a basis for reasonable suspicion, the Court made significant observation:

"Were this Court to conclude that an officer's bare testimony that he saw an object hanging from a rearview mirror which obstructed the driver's view, without any additional testimony or other evidence supporting the officer's conclusion that the object materially obstructed the driver's view, was sufficient to demonstrate reasonable suspicion to constitutionally support the intrusion of a vehicle stop, we would obviate the suppression court's role in ensuring there is an objectively reasonable basis for the vehicle stop, and expose every law-abiding motorist who hangs an object from his or her rearview mirror to a potentially unwarranted intrusion."
In the case sub judice, the appeals court found that the officer had sufficiently articulated the size of the objects and their location on the mirror in order to justify the stop of this vehicle. Thus the denial of the motion to suppress was affirmed.

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Monday, April 18, 2011

DUI Appeal - Massachusetts Use of Medical Records to Beat Sobriety Tests

Commonwealth v. Gawlik, Jr. 2011 WL 1450346 In this short decision, the defendant argued that his attorney was constitutionally ineffective for failing to introduce available medical records to establish is inability to pass the field sobriety tests. The appeals court noted that in Massachusetts, a defendant may use medical records to supply a basis for failing to complete (or pass) field sobriety testing (see Commonwealth v. Schutte, 52 Mass.App.Ct. 796, 800 (2001)). Although counsel did not use the actual medical records, he did elicit uncontested evidence on cross examination about the defendant's ailments. Holding that the attorney's decision NOT to use the records could have been a tactical decision (i.e. the records might have revealed prejudicial information such as drug abuse or alcoholism) the appeals court affirmed the conviction.

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Sunday, April 17, 2011

DUI Appeal - When is a Georgia roadblock an illegal roving patrol?

In Owens v. State of Georgia, --- S.E.2d ----, 2011 WL 816624 (Ga.App.), the defendant argued that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists. The court recited applicable law that:

"In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II); Thomas v. State, 277 Ga.App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41-42(III); LaFontaine v. State, 269 Ga. 251, 253(3) (497 S.E.2d 367) (1998)."

To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level [[FN3] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” FN4 (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1) (579 S.E.2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field .” Thomas v. State, 277 Ga.App. at 90.

Georgia's courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, --- Ga.App. ----, ----, n. 6 (Case No. A11A0107, decided February 28, 2011). Here, the roadblock was approved by a Sergeant. The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” [FN5] ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.[[FN6] ... Sgt. Johnson [then] supervised the roadblock. The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.

In addition, the appeals court held that the State must prove that:

"all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication."

The appeals court found that the roadblock was not unlawful:

"Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose."

Additionally, the defendant claimed that the trial court erred in finding that his detention by the officers was not excessive under the circumstances. Georgia law applies Miranda to filed sobriety testing post-arrest:

"When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."

The appeals court found that the 20 minute delay at the roadblock was not 'custodial':

"As the trial court in this case found, the arresting officer

detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages."

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Saturday, April 16, 2011

DUI Appeal - Illinois Suspension Reversed Due to Video 'Destruction'

In People of Illinois v. Aronson, --- N.E.2d ----, 2011 WL 941306 (Ill.App. 2 Dist.), the arresting officer's video of the defendant was 'lost' during a technical transfer or download of the video from the squad car to a disc for the court. According to the prosecutor:

“[T]here is a camera in the officer's vehicle. When he returned to the station, there was some sort of download process with the camera. There was a person at the police department, I do not have that person's name and I don't have that person in court with me today. The officer tells me that he is in charge of downloading the videos and things of that nature. This person told Officer Foltyniewicz that the video was unavailable, that it did not work. That being the case, there was a camera, I understand, but there is not an actual video of the stop.”

The court denied a motion for sanctions, noting that there was no evidence presented that there was an intentional or willful destruction of any evidence. However, the court noted:

“[I]t is something that I think I can and, frankly, I will consider [at the rescission hearing]. There is a video. I have no explanation as to why that video doesn't exist. Again, I am not making any finding that it was willful or intentional, but the impact of that is going to be something that I can and I will consider during the course of the hearing. * * * I will consider that failure to produce that video. I think it was something that was in the possession of law enforcement. It doesn't exist and there is no explanation for that, and that's a factor I can and will consider.”

Officer Foltyniewicz testified that he asked the defendant to step out of the vehicle to determine whether she had consumed alcohol. Foltyniewicz detected the odor of alcohol coming from defendant's breath, and he asked defendant to perform four field sobriety tests. Ultimately, he concluded that she failed three of the tests. Specifically, on the walk-and-turn test, defendant did not stumble or fall, but Foltyniewicz observed that defendant did not touch toe-to-heel, raised her arms more than six inches from her body, and did not follow instructions on the turn. Further, on the one-leg-stand test, defendant put her foot down before Foltyniewicz told her to stop. Finally, on the breath test, defendant formed a tight seal with her lips around the tube, but did not blow as instructed and, therefore, no results were obtained. According to Foltyniewicz, defendant admitted that she had earlier consumed one glass of wine. Foltyniewicz arrested defendant. In his testimony, Foltyniewicz made no mention of the alleged video recording.

Thereafter, defendant, a home health care nurse, testified to her belief that she did not fail the sobriety tests. Specifically, defendant testified that she walked the walk-and-turn test as instructed, including touching heel-to-toe, and that she had her hands at her sides during the one-leg-stand test, but, because she was “very nervous,” lights were shining, and “a lot was going on,” she did not know whether she held her arms more than six inches from her body. Defendant denied telling the officer that she consumed any alcohol that night.

The court granted defendant's petition to rescind the suspension. The court noted that Foltyniewicz was “very credible” in its mind. However the judge stated:

“The concern that I have, the issue in my mind, is the field sobriety tests. Again, I think the officer testified credibly as to the defendant's performance * * *. I found the officer to be more credible [than defendant]. The question I have, and this is troubling to me, is that there is a tape. It was inadvertently not recorded, destroyed, I don't know if you want to call it that, which is what the cases say. But there was a tape recording that we don't have. It wasn't intentional based upon what's been represented to me, but through no fault of the defense, they were diligent in trying to get a tape. I do not think that it automatically warrants reversal. If it was intentional, perhaps it would be different. But that's where I come down.

If it was a case where there was no tape, this call would be easy for me. I think the officer testified more credibly, but the absence of the tape raises a concern in my mind. Again, I don't find that it was intentional, it's inadvertent, but it's in control of the State. There's principles of civil law that indicate that if there's evidence that was in the possession of one party and it's destroyed, whether it's inadvertent or not, there is an inference to be drawn that it was detrimental to that party. Again, I don't know that, but that's the concern that I have is that there was a tape that the defense can't have, through no fault of theirs.

It's for that reason, and I am reluctant to do it, I don't know how to express that any better, reluctantly. The officer testified credibly. I think he behaved like a professional, but because of the absence of the tape, that it was inadvertently not recorded or destroyed, I am going to rescind the summary suspension.” (Emphases added.)

On appeal, the court affirmed the trial court's ruling:

"the court considered that a recording was made on the very issue disputed by the parties, i.e., whether reasonable grounds existed for Foltyniewicz to believe that defendant was driving while intoxicated. That video, which might have held exculpatory value for defendant, was unavailable. The court did not rescind the suspension as a sanction to the State, but it did inherently find that the information presumed to be on the video, coupled with defendant's testimony, outweighed the evidence in the State's favor."

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Friday, April 15, 2011

DUI Appeal - Georgia Source Code, Per Se, and Intoxilyzer Issues

In Holowiak v. State of Georgia, --- S.E.2d ----, 2011 WL 1123539 (Ga.App.) the defendant was originally charged with both driving under the influence (DUI), and driving with a BAC over 0.08 (per se). He was found not guilty of DUI, and the jury hung on the per se. On retrial of the per se count, the defendant was convicted. The defendant appeals based on two issues: the admissibility of impairment evidence and SFSTs when the defendant is only charged with a per se violation, and the refusal of the court to issue a subpoena for the source code to the Intoxilyzer 500 manufacturer, CMI Inc.

On appeal, the Court approved of use of the evidence of impairment and performance on the SFSTs in order to establish the validity of the breath test as follows:

“Field sobriety tests are not designed to detect the mere presence of alcohol in a person's system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga.App. 414, 416 (559 S.E.2d 161) (2002) (officer's testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). "


"The officer testified that, based on his years of training and experience, he concluded that Holowiak's performance on the field sobriety tests was consistent with a test result of .125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak's attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak's impairment was relevant to establish the facts that were the basis for the DUI arrest."

The defendant also complained that the trial court erred in refusing to approve of an out-of-state subpoena to CMI to compel production of the source code for the Intoxilyzer 5000. The court discussed the relevance of the issue as follows:
In Stetz v. State, 301 Ga.App. 458, 461 (687 S.E.2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40–6–392(a)(4) when the test of a person's blood alcohol concentration is determined by an Intoxilyzer machine. We held,

Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person's blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40–6–392(a)(4) is the computer printout of the test result.
Additionally, the appeals court found that the source code evidence was speculative at best:

"The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak's breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it."

Thus, the appeals court affirmed the defendant's conviction.

NOTE: The case implicitly authorizes the defense to use SFSTs and other non-impairment evidence as a defense to a breath test's validity. Additionally, it is my suspicion that the defense attorney offered many more ways that the source code was relevant, but that the appeals court seized only on the arguments that were more speculative, in order to sustain the trial court's original ruling.

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Wednesday, April 13, 2011

DWI Appeal - Texas Arrest OK for Reckless Driving

In Schuring v. State of Texas, Not Reported in S.W.3d, 2011 WL 1331851 (Tex.App.-Fort Worth), the defendant was in a rollover accident, where he was given an HGN test while strapped to a backboard and arrested for DWI. He admitted that he was driving too fast and lost control. On appeal, he claimed that the officer lacked probable cause to arrest, arguing that the HGN test was invalid. On appeal, the Texas court did a "Texas two-step" around the defendant's claim:
"[T]he offense for which there is probable cause to arrest does not have to be the same offense for which the person is arrested.FN17 That is, the officer's testimony that he arrested Appellant for DWI “is inconsequential because we review whether the facts and circumstances known to the officer[ ] objectively constituted a lawful basis for [the] arrest, regardless of the officer['s] subjective understanding of the motivation or purpose of [his] actions.”

Footnote 17 stated: FN17. See Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim.App.1995) (“[A] stop will not be invalidated based on the subjective motivation of a police officer so long as there is an objectively valid basis for the stop.”); Campbell v. State, 325 S.W.3d 223, 240 (Tex.App.-Fort Worth 2010, no pet.) (Dauphinot, J., concurring) (noting in DWI case that officer had probable cause to arrest Campbell for reckless driving)."
Concluding, the appeals court wrote:
"The facts known to Officer Moss at the time of Appellant's arrest gave the officer probable cause to arrest Appellant for reckless driving.FN20 Consequently, we do not address the validity of the trial court's conclusions that Officer Moss could have arrested Appellant for public intoxication or had probable cause to arrest him for DWI.FN21 Because Officer Moss had probable cause to arrest Appellant for reckless driving, we hold that the trial court did not err by denying Appellant's motion to suppress.

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Tuesday, April 12, 2011

DWI Appeal - NJ Margin of Error in Alcotest Rejected

In State of New Jersey v. Miceski, Not Reported in A.3d, 2011 WL 1327436 (N.J.Super.A.D.), the defendant submitted to a breath test on an Alcotest 7110 MK-III C ("Alcotest"). The Alcotest performs two readings - one involving an infrared analysis, and the other involving an electro-chemical analysis. Here, the reading for both were 0.084, truncated to 0.08%. The court heard testimony from defense expert Gary Aramini, that the Alcotest calibrations were reading 'high'. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance. He also stated that there is 0.005% margin of error in any Alcotest AIR reading. Aramini stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.

The Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated “an unofficially high reading,” the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
On appeal, the court held that the Alcotest has been held to be “generally scientifically reliable,” and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4–50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within “the range of any set of measurements that is accepted as being representative of a true reading.” The court held that the 0.005% margin of error is taken into consideration when the Alcotest is properly administered:

"Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, “0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]” Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy."
The court concluded that as long as the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation, and that the margin of error of 0.005% could not be used to defeat a per se violation.

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Monday, April 11, 2011

DWI Appeal - New Jersey Bars Police Opinions on Guilt

In State v McLean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well, since the Jersey case of State v Bealor allowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "

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Plane towing banner with messages critical of prosecutors flying over Palm Beach County Courthouse

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Saturday, April 09, 2011

DWI Appeal - Improper HGN Not Preserved for Appeal

In Efren Garcia v. Texas, Not Reported in S.W.3d, 2011 WL 1198922 (Tex.App.-Tyler), the defense claimed that the trial court reversibly erred in allowing testimony from the arresting officer regarding the horizontal gaze nystagmus test although the officer conceded that he incorrectly administered the test. The first trial ended in a mistrial for reasons unrelated to this appeal. Before the second trial, the defense urged a motion in limine prohibiting the introduction of the HGN test on the grounds that it was improperly administered. The motion asked the trial court to exclude all references to or results of field sobriety tests unless it was shown that the tests were properly administered by a qualified person. In reurging his motion, Appellant's counsel summarized Officer Graham's testimony in the first trial regarding the HGN test, testimony that he argued indicated that Graham was unqualified to administer the test and had improperly administered it to Appellant. The trial court denied Appellant's motion.

At trial, "Appellant's counsel's relentless cross examination demolished the evidentiary value of the HGN test results as well as effectively exposed other shortcomings in Officer Graham's investigation." Graham conceded that he had administered the test incorrectly. On appeal however, the appellate court found that the error in admitting the HGN was not properly preserved:

“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” Tex.R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). An objection must be made unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).

Out of the presence of the jury and before the reading of the information, Appellant's counsel stated, “Your Honor, at this time, we would reurge our—the defense motion in limine in regard to the horizontal gaze nystagmus test.” The trial court heard no testimony during the short hearing. Appellant summarized for the court Officer Graham's testimony from the first trial, which counsel argued demonstrated that the HGN test given Appellant was incorrectly administered and Graham unqualified to give it. The trial court denied Appellant's motion. Appellant thereafter raised no objection to Officer Graham's testimony regarding the HGN test. Instead, Appellant's counsel effectively cross examined Officer Graham, eventually eliciting his admission that the test, as given, was not valid. Appellant did not ask the court to strike Officer Graham's testimony regarding the results of the HGN test. By failing to continue to object to Graham's testimony regarding the HGN test, Appellant waived error, if any, in admitting the testimony.

NOTE: This case contains several important and necessary steps in preserving a error on appeal.

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Friday, April 08, 2011

DUI Appeal - Washington Says Implied Consent is Criminal Punishment

In State of Washington v. Yallup, --- P.3d ----, 2011 WL 839682 (Wash.App. Div. 3), a tribal Indian was stopped inside his reservation, on a state highway, and arrested for DUI and driving while suspended. Under the implied consent laws, his blood was also drawn. On appeal, the defendant challenged the jurisdiction of the state to charge him. Indian sovereignty prevents a State from imposing laws inside an Indian reservation that are merely regulatory or non-criminal. Here, if the court found that the implied consent laws were civil in nature, the blood result would be inadmissible. Using a result-driven analysis, the court held that implied consent laws are primarily criminal in nature:

The implied consent statute, RCW 46.20.308, was adopted to “control or reduce the drunk-driver hazard to highway safety.” State v. Moore, 79 Wash.2d 51, 53, 483 P.2d 630 (1971). It operates by recognizing that drivers have consented to alcohol testing by the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be withdrawn in some circumstances, but the license to drive will be suspended when consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn, evidence of the refusal to take the test “may be used in a criminal trial.” RCW 46.20.308(2)(b). The statute was upheld in Moore against various constitutional challenges, with the court recognizing the statute “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver.” 79 Wash.2d at 58, 483 P.2d 630.
The clear focus of the implied consent statute is gathering evidence for prosecuting criminal cases of suspected impaired driving. Statutes that authorize evidence collection in support of prosecuting criminal cases are properly classified as criminal in nature. To the extent that the difference between criminal and civil jurisdiction even matters under RCW 37.12.010(8), we have no trouble categorizing the implied consent statute as criminal.
NOTE: This approach leaves the prosecution open to attacks under the double jeopardy clause - if a defendant receives an implied consent suspension, then any subsequent criminal prosecution would place the driver in criminal jeopardy twice.

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Thursday, April 07, 2011

DUI Appeal - Escaping an Illegal DUI Sentence in Wyoming

In Crosby v. State of Wyoming, 247 P.3d 876, 2011 WY 44, the defendant was illegally sentenced to 1 year of jail for his 3rd DUI, when the maximum offense was 180 days jail. He then escaped jail after serving only 2 days. He then filed a motion to dismiss his escape charges, arguing that the sentence from which he had escaped was void ab initio. Two issues where then put before the Supreme Court of Wyoming?
1. Whether the original sentence was void ab initio in its entirety, or is it an illegal sentence subject to correction?

2. Given that the escape charge in the above-captioned matter was filed at a time when the sentence was illegal, is it proper to continue the prosecution of the Defendant for escape, should this Court find that the original sentence was illegal and subject to correction?

The Court answered that the original sentence was subject to correction, and not void ab initio. Additionally, they also held that the filing of the escape charge was also allowable. The defendant also asserted that a previous case allowed him to attack the original sentence as void:

"Mr. Crosby asserts that we held otherwise in Endris v. State, 2010 WY 73, 233 P.3d 578 (Wyo.2010). There, Mr. Endris pleaded guilty to driving while under the influence of alcohol and the district court imposed a sentence allowing him to be released from jail to participate in a treatment program. The district court advised Mr. Endris that during his release for treatment he was on probation and in official detention. Mr. Endris was released but he did not attend the treatment program. His probation was revoked and he was convicted of escape. He appealed both the revocation and the escape conviction claiming the original sentence was illegal because it subjected him to probation and detention at the same time; therefore, he could not be convicted of escape."

Ultimately, the Supreme Court of Wyoming held that the defendant was subject to prosecution for escape despite the illegal sentence, since the escape occurred within expiration of lawful period of confinement. "We leave for another day the question of whether a prosecution can continue on an escape occurring after the legal portion of a sentence has been served." Paul Newman would have been proud of Mr. Crosby.

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Wednesday, April 06, 2011

DWI Appeal - A 25.7 Second Blow and Impossibility

In State of New Jersey v. Schworn, Not Reported in A.3d, 2011 WL 1161628 (N.J.Super.A.D.), the defendant was found not guilty of DWI but guilty of driving with 0.08 or more (breath test). On appeal, the defendant contended that there was insufficient evidence that the 20 minute pre-test observation period was performed, and that the court should have taken judicial notice that it was 'impossible' for a person to blow for 16.2 seconds or 25.7 seconds, and therefore the results of the test were not believable.

The evidence at trial revealed that the officer recorded in his report that the observation period started at 1:50 a .m. and ended at 2:10 a.m., but the report issued from the Alcotest machine indicated that the test protocol began at 2:07 a.m. When confronted about this at trial, however, the officer explained that he gauged the twenty-minute observation period by reference to his wristwatch and not by the Alcotest timer. On appeal, the court held that it was acceptable for the trial judge to believe the cops explanation.

Additionally, there was testimony that the defendant provided the Alcotest machine with two breaths within two minutes, the first of which lasted for 16.2 seconds and the second lasted for 25.7 seconds. Defendant argued that the trial court erroneously refused her invitation to take judicial notice that exhaling for those periods of time was not possible. The appeals court stated:

"[T]he precise point raised on appeal is not that the judge's finding of guilt was against the weight of the evidence but that he failed to take judicial notice of the impossibility of the extent and timing of the breaths provided by defendant. Even if it could be assumed, which we doubt, that this was a proper area for the application of N.J.R.E. 201(c), we are satisfied the judge did not abuse his discretion in refusing defendant's request."
NOTE: Judicial notice can be given to incontrovertible facts or to those that can be easily determined. The pull of gravity is one. The sun rising and falling every day is another. The ability to blow a single breath into an Alcotest for 16.2 or 25.7 seconds should have been another. Apparently though, some of the NJ justices must have met some very large blowhards in their lifetime. What is the longest one can blow into an Alcotest?

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Tuesday, April 05, 2011

OUI Appeal - Maine Roadblock Stop Unreasonable

This case comes to DAD through the watchful eyes of NCDD Maine Attorney Wayne Foote. In State of Maine v. Kent, --- A.3d ----, 2011 WL 1120102 (Me.), 2011 ME 42, the defendant was arrested for OUI following a roadblock stop. he challenged the roadblock through the filing of a Motion to Suppress. At a hearing on a motion to suppress, Maine law holds that the State bears the burden of demonstrating that the execution of a roadblock stop by police officers was reasonable pursuant to the Fourth Amendment. The trial court held that the roadblock was lawful, and the defendant was eventually convicted.
The written standard operating procedures (SOPs), established by the Chief of the Auburn Police Department, applied to the operation of the roadblock. The SOPs provide in relevant parts:

The Chief of the Auburn Police Department shall approve any requests to hold a sobriety checkpoint.
The location of a sobriety checkpoint shall be chosen after consideration of [several factors related to safety and efficiency and the frequency and location of prior OUI related accidents and arrests].
The public shall be notified via the media of any plan to hold a sobriety checkpoint at least 24 hours prior to holding the checkpoint.
A minimum of one supervisor and six patrolmen will be used at all sobriety checkpoints.
All vehicles passing through the sobriety checkpoint shall be stopped. Only when backed up traffic becomes a hazard will vehicles be allowed through without being checked, and in this case all vehicles will be let through until there is no longer a hazard.
Each operator will be given a message card and will be spoken to only briefly. If there is no reason to believe a violation is occurring, then the vehicle will be allowed to continue without further delay.
On appeal, Kent argued that the seizure of her person at the roadblock stop was constitutionally unreasonable because the State did not establish that, as required by the SOPs, (1) the roadblock was approved by the Chief of Police; (2) a supervisor was present at the roadblock; and (3) all vehicles passing through the roadblock were stopped. Admitting that there were deficiencies, the State nevertheless replied that not all violations of these procedures should cause a roadblock to be declared unlawful or an arrest to be suppressed. The Supreme Court found the deficiencies constitutionally defective:

"In this case, the State did not establish that there was any leadership or accountability in the design, approval, and execution of the roadblock. Although Sergeant Bryant testified that he had participated in the six or seven previous roadblocks that were set up in the same location and in the same manner, there was no direct evidence that the roadblock's location was chosen according to the criteria set forth in the SOPs. Nor did the State establish that the Chief of the Auburn Police Department or any other authority approved a request to conduct any of these roadblocks or that the public was notified in advance of this roadblock. With respect to supervision of the roadblock, Sergeant Bryant did not testify about who supervised the roadblock or whether a supervisor was even present.

Reviewing the other Cloukey factors, the average length of time that motorists were detained at this roadblock is notable. One SOP provides, “Each operator will be given a message card and will be spoken to only briefly.” However, at this roadblock, motorists without violations were detained an average of three to five minutes. Compared to the average time of detentions in cases where roadblocks were deemed reasonable, the length of these seizures suggests more than a minimal intrusion of a motorist's liberty interest. See Bjorkaryd–Bradbury, 2002 ME 44, ¶ 3, 792 A.2d at 1083 (safety checks lasting “only a couple of minutes”); Patterson, 582 A.2d at 1206 (safety checks taking “only 1 1/2 to 2 minutes”); State v. Babcock, 559 A.2d 337, 337 (Me.1989) (OUI detentions lasting one to two minutes); McMahon, 557 A.2d at 1325 (safety and OUI detentions lasting “one to two minutes”); Leighton, 551 A.2d at 117 (OUI stops lasting “under a minute”); Cloukey, 486 A.2d at 144 (conducting thirty safety checks in one-half hour); Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 448, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety checkpoint stops lasting an average of twenty-five seconds)."

NOTE: The decision points out that it should be the State's responsibility to establish the validity of the roadblock - not vice versa. Further, the lenght of delay should be explored in every case, as it is not uncommon for cops to apparently hold persons 'hostage' for longer and longer each time they rune one of these events...

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Monday, April 04, 2011

DWI Appeal - When Lawyers Get DWIs

In In Re Ranshi,--- So.3d ----, 2011 WL 1088051 (La.), 2009-2722 (La. 3/25/11), the applicant to sit for the Lousiana Bar Examination, Barry Ranshi,failed to disclose a DWI in 2005, but disclosed another DWI from 2008. He was initially denied an opportunity to take the bar exam, but received a tentaive approval to sit, pending a subsequent character and fitness review.

He passed the exam, underwent an intensive outpatient treatment program and ongoing monitoring by LAP as a result of petitioner's history of alcohol abuse. He admitted his lack of candor to the Bar from failing to reveal one of his DWI convictions.

Barry was conditionally admitted to the Bar, and placed on a probationary status until he completed his LAP recommendations. "Within thirty days prior to the expiration of the conditional admission, and after consultation with the Executive Director of LAP, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended."

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DWI Appeal - Texas HGN test medically impossible

In Patton v. State of Texas, Not Reported in S.W.3d, 2011 WL 541481 (Tex.App.-San Antonio), the defendant alleged that the trial court erred in denying his motion to suppress because (1) the officer administering the horizontal gaze nystagmus test (“HGN test”) was not qualified to do so under the Texas Administrative Code, and (2) the HGN test was improperly administered by the officer because the results were “medically impossible.”

First, the defendant contended that Officer Patten was not qualified to administer the HGN or testify to its results because Officer Patten had not been re-certified, under the Texas Administrative Code, to perform field sobriety tests when appellant was stopped. See 37 TEX. ADMIN. CODE § 221.9 (2009) (Tex. Comm'n on Law Enforcement Officer Standards & Educ, Standardized Field Sobriety Testing Practitioner (“SFST”)). The Texas Administrative Code specifies that for an officer to qualify for an SFST certificate, the officer must complete the SFST course offered by the National Highway Traffic Safety Administration's (“NHTSA”) as well as an update course within the past twenty-four months. Id. The court of appeals responded as follows:

"Although appellant is correct in stating that certification is proof an officer is qualified to administer the HGN test and to testify, see id. at 769, a certificate is not the only means by which an officer may be qualified. Ellis v. State, 86 S.W.3d 759, 761 (Tex.App.-Waco 2002, pet. ref'd). If it is shown that the officer has extensive training in administering the HGN test, has been certified through a training course specifically including the administration of the HGN test, and has extensive experience in administering the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the test."
The court then found that the officer was still qualified as an expert even though his SFST certificate had expired.

As for the defendant's argument that the HGN test should be suppressed because the results were “medically impossible,” the court acknowledged that it was required to examine the record to determine if the HGN technique was properly applied on the occasion in question. "While administering the HGN test, the officer must follow the procedures outlined in the DWI detection manual published by the NHTSA." It then summarized the officers testimony as follows:

"Officer Patten explained the NHSTA requires the subject to stand with their feet together and arms to their side. While standing, the subject must track the blue stimulus without moving their head. An officer must pass each eye twice while looking for lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and nystagmus onset prior to forty-five degrees. Each pass with the eye should be two seconds out and then two seconds in and when the stimulus is at forty-five degrees, the stimulus must be held for a minimum of four seconds. While reviewing the videotape of the stop, Officer Patten stated one of the passes looked “kind of short” and that it was maybe three seconds. Officer Patten then stated there are three clues for each eye for a total of six clues. Appellant exhibited three clues in the right eye and one clue in the left eye. Officer Patten reasoned that because appellant had difficulty following the stimulus, he did not mark that appellant exhibited the other two clues."
In rejecting the defendant's argument that the results should have been suppressed, the court stated that:

Many courts have held that slight variations in administration do not affect the reliability or admissibility of the HGN test, but only affect the weight to be given to the testimony. See Plouff v.. State, 192 S.W.3d 213, 221 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (“[I]t would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual's performance of the tests.”); Compton v. State, 120 S.W.3d 375, 379 (Tex.App.-Texarkana 2003, pet. ref'd) (“Any variation in the time taken to appropriately position the eyes would have no effect on the reliability of [the HGN] test and cannot form the basis for excluding the results from the evidence presented at trial.”). Here, Officer Patten may have only held the stimulus for three seconds instead of four, but it was within the trial court's discretion to find that any deviation committed by Officer Patten during administration of the HGN test was slight and did not affect the reliability and admissibility of the results.
Hence, the results of the HGN test were found to be admissible.

NOTE: What is troubling about the opinion in this case is that there is an acknowledgement that the procedures of the HGN test were not followed, and also that the results of 3 clues in one eye and 1 clues in the other is an 'abnormal' finding. Yet, without any medical evidence to support the reliability (and admissibility) of the result, the court brushes off these deviations as somehow slight and de minimus - a finding by them that is unsupported by the record. Just shoot me!

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