Tuesday, May 31, 2011

OWI Appeal - Iowa Bars Use of Prior Arrests Unless Convicted

In State of Iowa v. Figueroa, Slip Copy, 2011 WL 2090020 (Table) (Iowa App.), the defendant was charged as a 3rd time offender and pleaded guilty. A pre-sentence report revealed multiple charges and offenses for which she had been arrested but not convicted. The trial court, specifically stating that it took into account the arrests, sentenced the defendant to 5 years in jail. In vacating the sentence and remanding, the appeals court stated:

"In imposing her sentence, the district court stated that it reviewed the PSI and addendums attached and that Figueroa had been arrested twenty-two times in the past ten years. See State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App.1991) (finding the sentencing court “considered matters which it legally should not have considered, such as the defendant's record of arrests without convictions”). Where a sentencing court makes a specific reference to unprosecuted and unproven charges it is an affirmative showing the district court considered those charges. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Consequently, we find the district court abused its discretion by considering unprosecuted and unproven charges. Compare id. (“When considered in context with the remainder of the court's explanation for imposing sentence, the reference to ‘additional crimes' is not ‘an affirmative showing’ that the court considered unproven charges.”), with State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his discretion was properly exercised.”). We are required to vacate Figueroa's sentence and remand for resentencing. State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct.App.1994). We note that the district court also considered permissible factors, such as Figueroa's extensive record of convictions, probation violations, and being found in contempt. By vacating and remanding, we do not imply that permissible factors would not support the sentence imposed and make no judgment as to what the sentence should be."

Editor's notes: Most states prohibit the use of bald arrests as a factor for sentencing. Instead, these states require the prosecutor to 'prove up' the arrests with reliable evidence, before they can be used.

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Monday, May 30, 2011

DUI Appeal - Florida Blood Draw Violates Search Warrant Law

The below case involves a blood draw that was taken after a search warrant was issued following a DUI arret. In State of Florida v. Geiss, --- So.3d ----, 2011 WL 2097694 (Fla.App. 5 Dist.), the trial court suppressed the blood draw because it believed that the draw violated the Florida Right of Privacy, the Implied Consent Statute, and the Search Warrant provisions of Florida law.

On appeal, the court found that the Florida constitutional right of privacy was to be read as concomitant to the 4th amendment right against unreasonable search and seizure. Since a blood draw was acceptable under the 4th amendment (see Schmerber) the court held that it did not violate the right of privacy either.

However, the court did find that the search warrant violated the statutes on search warrants. At the time of the application for the warrant, the defendant was only charged with a misdemeanor (his full background was unknown):

"The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime. In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss's prior DUI record, the affidavit for the search warrant did not set forth Geiss's complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562–63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime—whether felony or misdemeanor—may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not."
Continuing with its analysis, the appeals court then explained why blood was not an item that can be seized for a misdemeanor (as opposed to a felony) DUI:

"[W]e agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value. And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (citations omitted), and that search warrants must strictly conform to the statutes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.
Thus, the appellate court found the search warrant was improvidently granted. Nevertheless, the Florida court refused to suppress the blood draw, finding that the draw was 'in good faith':

"The good faith exception holds that the exclusionary rule need not be applied when the officer conducting the search acted in objectively reasonable reliance on an invalid warrant. State v. Watt, 946 So.2d 108, 110 ( Fla. 5th DCA 2007) (citing Leon ). The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate's authorization.” Leon, 468 U.S. at 923 n.23.

"Geiss argues that in Isley, Judge Silverman acknowledged that an appellate determination that a warrant is not authorized under the warrant statute or is barred by the implied consent statute “may render the warrant so facially deficient as to preclude application of the Leon exception.” However, at the time the warrant was issued in this case, there was no such appellate decision barring such warrants. To the contrary, Isley was an appellate opinion from the same circuit which allowed them.

"Applying the Leon good faith exception, we find that the blood test results in this case should not have been suppressed. Accordingly, we reverse the order on appeal and remand for further proceedings."
Editors Note: The court's analysis of Florida's Right of Privacy, implies that the this Right of Privacy grants Florida citizens no more protection than what they already have under the Fourth Amendment to the U.S. and state constitutions. This interpretation, suggesting that it is only as great as the 4th Amendment, is contrary to most rules of statutory construction that bar an interpretation that would render a law meaningless.

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Friday, May 27, 2011

DUI Appeal - Idaho Denies Suit After Forced Catheterization

In Miller v. Idaho State Patrol, --- P.3d ----, 2011 WL 1881954 (Idaho) the officers performed a forced catheterization of the plaintiff for a drug test of her urine. The facts of the underlying case were reported as follows:

"In May of 2007, a trooper with the Idaho State Police was driving by a gas station in Priest River, Idaho, when he saw Jason Miller, Respondent, staggering around as he entered his car. The officer contacted Idaho State Trooper Christopher Yount, who arrived to see Miller sitting in the driver's seat of his car. Yount observed that Miller's pupils were dilated and requested that he perform some field sobriety tests, which Miller failed.

Yount put Miller under arrest for DUI, after which Yount discovered scissors in Miller's pocket that he used for cleaning a marijuana pipe. Miller also admitted to smoking marijuana “every day.” Yount took Miller to a hospital in Sandpoint, Idaho, for a urine test. At the hospital, Miller refused to provide a urine sample, saying “I will not fight you, but I will not give you a sample voluntarily.” A registered nurse at the hospital then catheterized Miller at Yount's request and extracted a urine sample. Afterward, Yount found a pipe in Miller's shirt pocket containing methamphetamine residue. Yount also administered a drug-recognition evaluation on Miller at the jail that indicated Miller was under the influence of marijuana and a central-nervous-system stimulant. Miller later pled guilty to felony possession of methamphetamine, possession of drug paraphernalia, and misdemeanor DUI.

There is no indication that Miller struggled while the hospital nurse inserted the catheter. The record is silent as to how or where the nurse extracted the sample or who was present in the room. There is nothing in the record to indicate whether the urine sample tested positive for any controlled substances. It is also unclear why Yount chose to have Miller catheterized rather than performing a blood draw."

Miller eventually sued the police for a violation of her civil rights. The court first acknowledged that suspicionless forced catheterizations are undoubtedly illegal:

"Even though courts nationwide have not had many opportunities to address forced catheterizations, there are some areas where cases appear to be coalescing into universal rules. For instance, it is objectively well-established that a suspicionless catheterization, like any suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d 1183, 1192 (9th Cir.1999); Ohio v. Funk, 177 Ohio App.3d 814, 896 N.E.2d 203, 207–08 (Ohio Ct.App.2008); see also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir.1991) (stating that a warrantless blood draw requires probable cause). If the police have probable cause to search for something that is not likely to dissipate from the body, then a warrantless search for bodily fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir.1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir.1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and not for investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into county jail); Meyer v. Woodward, 617 F.Supp.2d 554, 565 (E.D.Mich.2008); Tinius v. Carroll Cnty. Sheriff Dep't, 321 F.Supp.2d 1064, 1075–76 (N.D.Iowa 2004) (upholding a catheterization performed by hospital personnel on a person detained under the police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990) (stating that a blood draw performed by medical personnel for purely medical reasons was permissible).

Idaho also acknowledged that blood draws and catheterizations are qualitatively different:

"[B]lood draws and catheterizations also have significant differences[:]

"First, catheters impinge on a person's dignity much more severely than a blood draw. “[T]he forceful use of a catheter is a ‘gross personal indignity’ far exceeding that involved in a simple blood test.” Ellis, 176 F.3d at 1192 (quoting Yanez v. Romero, 619 F.2d 851, 855 (10th Cir.1980)). A person being catheterized must pull his or her pants down to expose the genitalia, potentially in front of members of the opposite sex, and allow a stranger to handle very private parts of his or her body, not for consensual medical treatment, but at the behest of the State. See Hooper v. Pearson, No. 2:08–CV–871, 2010 WL 2990809, at *5 (D.Utah 2010) (describing how male officers restrained a female suspect while two women pulled her pants down and catheterized her). Blood draws, by contrast, occur not just in private doctors' offices but also at public blood drives. They typically do not require the person being tested to remove sensitive articles of clothing or otherwise be subjected to private or embarrassing activity.

Second, catheters involve a significantly greater amount of physical trauma. Unlike a needle, which punctures the skin to reach a blood vessel just below the surface, a catheter is a tube that must pass all the way through the urethra and enter the bladder. Even though catheterization is fairly commonplace, it can certainly hurt more than inserting a small needle into the arm. See LeVine v. Roebuck, 550 F.3d 684, 689 (8th Cir.2008) (noting that catheterization is a painful procedure). A catheter may also carry a greater risk of infecting the recipient. See Go Med. Indus. Pty., Ltd. v. Inmed Corp., 471 F.3d 1264, 1267 (Fed.Cir.2006) (“Urinary catheters typically increase the risk of urinary tract infections because inserting a catheter can push bacteria into the normally sterile bladder.”). It would be reasonable for many people to experience anxiety while enduring such an experience.
According to federal caselaw, such a lawsuit cannot stand unless the law was clear and settled that such a process was in fact illegal. The Supreme Court of Idaho, seizing on that principle, dismissed the plaintiff's claim against the police, noting that the law on the subject was unsettled. In so writing, the court mentioned several out of state cases previously deciding similar issues:

"The New Jersey Superior Court refused to grant § 1983 immunity to two police officers who catheterized a DUI suspect after taking a blood draw, holding instead that a factual issue existed as to whether any exigent circumstances justified the procedure. Jiosi v. Township of Nutley, 332 N.J.Super. 169, 753 A.2d 132, 140 (N.J.Super.Ct.App.Div.2000). Similarly, in a § 1983 case decided after the events in this case, a federal district court found that a forced catheterization, if proven, would be impermissible even though the police had obtained a warrant to extract bodily fluids because the test is so intrusive and a blood draw had already been performed. Elliott v. Sheriff of Rush Cnty., 686 F.Supp.2d 840, 859–60 (S.D.Ind.2010). The court further held that the case fell in the “obvious” category of well-established law, preventing the officers from receiving qualified immunity under § 1983. Id. at 863; see also Elliott v. Rush Mem'l Hosp., 928 N.E.2d 634, 643–44 (Ind.Ct.App.2010) (finding no immunity under a state medical-malpractice statute for a hospital that forcibly catheterized a DUI suspect because there was a material fact issue as to whether catheterization was a reasonable medical procedure for obtaining a urine sample).

"Compare these cases with a different decision in which another federal district court upheld a forced, warrantless catheterization that was supported by probable cause. Ellis v. Cotten, No. 3:06–CV–283–K, 2008 WL 4182359, at *6 (N.D.Tex. Sep.9, 2008). The court held that the test was permissible under the Fourth Amendment despite the fact that the police simultaneously drew blood because probable cause existed. Id. The court there even stated that the involuntary catheterization was “remarkably similar” to the blood draw in Schmerber. Id. That this small but significant division of authority has continued to develop since the events in this case simply illustrates how difficult it would have been for Yount to know what his legal obligations were.

In dismissing the charges, the court concluded:

"Because American search-and-seizure law is undeveloped as to when an officer may administer an involuntary warrantless catheterization on a suspect, Officer Yount was entitled to qualified immunity for the § 1983 claim. Further, Yount did not act with malicious or criminal intent, so he was entitled to immunity from Miller's tort claims under the Idaho Tort Claims Act."

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Thursday, May 26, 2011

OUI Appeal - Driveway Not Public Way Says Mass Court

Some states only apply drunken driving laws to 'public ways' or 'highways' or 'public places'. Massachusetts restricts their law to a way to which members of public have access as invitees or licensees. In Commonwealth v. Virgilio, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 1988395 (Mass.App.Ct.) the defendants vehicle was located on the driveway that is used by only two houses to reach their respective parking places. The court found that such a driveway was not a 'public way' within the meaning of the statute, and reversed the conviction:

"In no case brought to our attention has mere physical accessibility by one operating a motor vehicle and who is not a trespasser been deemed minimally sufficient, as matter of law, to qualify as a “way or place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1). See Smithson, supra (where the court found that the characteristics of the road on a holiday weekend were not such that members of the public could reasonably infer they had an invitation to travel despite the fact the public had physical access to the road). Here, in our view, the facts beyond its physical accessibility by nontrespassers, namely, that the driveway and parking area were shared by and accessible to the occupants and guests of two residential buildings, are not sufficient to bring these places under the statute's reach. To decide otherwise would be to essentially overrule the requirement that, in cases such as this, members of the public must be able to reasonably conclude, from the physical circumstances of the way, that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature, or add words to a statute beyond those the Legislature has chosen to include."

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Police Driving Mistakes Force Dismissal of DUI

The above video was used to show that Sarasota police drive as bad (or worse) than the defendant that they accused of drunk driving.

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Wednesday, May 25, 2011

Judge Rules DUI Blood Tests Require Error Rate Report | Forensic Magazine

Judge Rules DUI Blood Tests Require Error Rate Report | Forensic Magazine Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Estimating the Uncertainty | Forensic Magazine

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DUI Appeal - Open Alcohol/Liquor Proof Doesn't Require Chemical Test

In Derosiers v. District of Colombia, --- A.3d ----, 2011 WL 1894854 (D.C.), the defendant was proven guilty of an open liquor violation. On appeal, the defendant claimed that the proof was insufficient because there was not chemical test. On appeal, the court held that the evidence was sufficient to support a conviction for possession of an open container of alcohol in a vehicle , even in the absence of a chemical test of the liquid in glass jar that allegedly contained alcohol, where the police officer observed and smelled liquid and recognized, based on his experience, distinctive smell of vodka emanating from clear liquid inside glass jar found next to defendant, smell of alcohol emanated from defendant, as well as from car in which jar was located, and defendant, who was asleep in front seat of vehicle parked in parking lot, appeared to be intoxicated at time jar was found next to her in car.

The appeals court stated:

"[W]e have previously ruled in other contexts, such as cases involving drug-related offenses, that “the identity of a controlled substance may be proved by circumstantial evidence” taken from the testimony of someone experienced in identifying the substance. Thompson v. United States, 678 A.2d 24, 28 n. 7 (D.C.1996); see also Duvall v. United States, 975 A.2d 839, 844 (D.C.2009) (“We recognize that in a prosecution for possession of a controlled substance, the government may establish that the substance is an illegal drug by means of circumstantial evidence.”); Bernard v. United States, 575 A.2d 1191, 1195 n. 5 (D.C.1990) (stating that the court has “no quarrel” with relying on circumstantial evidence based upon expertise acquired through education or experience in identifying illegal substances). While we have accepted the use of circumstantial evidence in certain drug cases, we have also emphasized that we do not “countenance any attempt to prove guilt by speculative means. A lay person's impression, for example, is insufficient to establish the identity of a suspected drug.” Bernard, supra, 575 A.2d at 1195. To withstand a sufficiency challenge, the circumstantial evidence must be compelling enough to persuade a reasonable fact-finder beyond a reasonable doubt that the substance in question was an illegal narcotic."

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Tuesday, May 24, 2011

Lawyer Complains about Large-Breasted Woman at Opposing Counsel Table

A local lawyer has complained in a pretrial motion that opposing counsel has a "large breasted woman sit next to him at counsel's table" whose sole purpose "is to draw the attention of the jury away from the relevant proceedings."
Attorney Thomas W. Gooch asked a judge to order the woman "to sit in the gallery with the rest of the spectators" and bar her from sitting at the counsel's table "until it is shown that this woman has any sort of legal background."
The case in Cook County Small Claims Court is a dispute over a used car purchased from Exotic Motors in November 2009.
Gooch's opposing counsel, Dmitry N. Feofanov, responded that the woman is his "paralegal assistant" and contended that Gooch cites no law or "good faith legal argument" why she can't sit at the counsel table.
Feofanov asked Circuit Judge Anita Rivkin-Carothers to impose sanctions on Gooch for Gooch's original motion.
Feofanov's firm is ChicagoLemonLaw.com, P.C., located in Lyndon, Ill. He represents the plaintiff in the used car dispute.
"If you got a crappy car, you called the right place," says his voice on his answering machine.
Feofanov has described himself in other cases as a "consumer protection lawyer" who in his previous life, "after coming to this country with the third wave of Jewish emigration from the Soviet Union in the late 1970s … was a concert pianist."
Gooch represents Exotic Motors. He is name partner in the law firm of Gauthier & Gooch with offices in Wauconda and Chicago. That firm focuses on professional malpractice, family law and civil litigation.
Gauthier & Gooch's website says it is "known for their brand of aggressive litigation."
"What I objected to was not a woman with large breasts," Gooch said in an interview. "Personally, I like large breasts.
"However, I object to somebody I don't think is a qualified paralegal sitting at the counsel table — when there's already two lawyers there — dressed in such a fashion as to call attention to herself."
Gooch said in another case, he was in mandatory arbitration in Cook County when Feofanov was the opposing counsel. Gooch said he objected to the same woman sitting at the counsel table and "the arbitrators wouldn't let her stay at the table."
To that, Feofanov, responded:
"I do not believe it is professional to try a case in the press. In response to press inquiries, I have provided the press with publicly available documents and my involvement ends here."
Feofanov gave Gooch's original motion complaining about the large breasted woman at the counsel table to a Chicago Daily Law Bulletin reporter in a response to a request, along with Feofanov's legal response.
Feofanov also provided other documents showing that his "paralegal assistant," identified in one place as Daniella Atencia, has been paid as a paralegal in two court orders by Cook County judges. Both times, the rate for the paralegal was $115 an hour.
"That's not a qualification," Gooch said. "That means Dmitry handed up a bill to a judge that said paralegal on it. I don't believe it's a legitimate thing. It's a sham."
Gooch also said, "We're going to put her on the witness stand, ask where she want to school. … I'll be the first to apologize if she turns out to be a trained paralegal. I don't think she is."
Feofanov said he received Gooch's motion complaining about this woman in a packet of pretrial submissions that lawyers give each other.
Gooch said he believes the motion has been filed by mail. "If it hasn't been filed," Gooch said, "I assure you it will be filed."
The case is Song and Maria Sayavongsa v. Exotic Motors, Inc. No 10 M1 106807. According to Feofanov, the trial date is June 28 in Room 1403 of the Daley Center.

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DUI Appeal - Pennsylvania Asthma Issue Reverses Suspension

In Martin v. Commonwealth of Pennsylvania, --- A.3d ----, 2011 WL 1886459 (Pa.Cmwlth.) the defendant was arrested for DUI. At the station, told the officer that he had asthma. The defendant tried to blow without success 4 or 5 times. He was cited for a refusal. The police officer testified that a person with asthma should have no problem submitting, and that they usually provide an adequate sample after he gives them "a talking to."
On appeal, it was noted that the defense offered the deposition testimony of Kenneth Hurst, M.D. Dr. Hurst testified that he has treated Licensee for asthma since 2001 and for chronic obstructive pulmonary disease (COPD) since 2005. (Hurst Dep., 4/21/10, at 5, R.R. at 53.) Dr. Hurst stated that: (1) asthma and COPD are different diseases, ( Id. at 10–11, R.R. at 58–59); (2) Licensee was aware of his COPD prior to the August 21, 2009, arrest, ( Id. at 20, R.R. at 68); (3) Licensee was not aware of the seriousness of his COPD until September 9, 2009, after the arrest, when Dr. Hurst performed a pulmonary function test, which was “the first confirmatory test that was ordered on him,” ( Id. at 12, R.R. at 60); (4) before the test, “nobody really knew how bad it was,” ( Id. at 20, R.R. at 68); (5) before the test, Licensee's physicians discussed his medical condition with him as “both asthma ... and COPD,” ( Id.); and (6) because of his COPD, Licensee could not have completed the breath test without medication, ( Id. at 7–9, R.R. at 55–57).

In an earlier case called Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa.Cmwlth.1995) (emphasis added), a Pa. court stated:

"[W]here a licensee suffers from a medical condition whose existence, 1) affects the licensee's ability to perform the test and 2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered."

The state argued that it was the COPD that caused the insufficient sample, and that since the defendant had only mentioned asthma, then he could not meet the Hatalski conditions. The appeals court, in reversing the driver's suspension, wrote:

"Thus, the reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee's ability to complete one kind of test is to obtain results through a different chemical test. A licensee does not avoid testing by advising the officer of a medical condition, but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition. In the legal scheme, then, it is not the role of an officer to “play doctor” or assess the licensee's credibility."

Finally, the court wrote:

"A licensee is not required to inform officers of an unknown medical condition that would have affected his ability to complete a breath test. Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa.Cmwlth.2000). Here, because the trial court found that Licensee was not aware of the severity of his COPD and because there is no finding that Licensee knew the distinction between his asthma and his COPD, we conclude that, having informed the troopers of his asthma, Licensee was not required to inform them of his COPD."

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DUI Appeal - California Says that Pocket Bike is a Vehicle

In People v. Varela, --- Cal.Rptr.3d ----, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771, while riding a pocket bike, defendant Martin Varela evaded a police officer who was attempting to stop him. A two-wheeled device with a motor and a seat for a driver is called a “pocket bike.” On appeal the defendant claimed that the pocket bike was not a motor vehicle because, inter alia, it was not designed for roadway travel. Analyzing the issue, the appeals court wrote:
“A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

Section 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled.” Under the broad definition of motor vehicle it is not required that the vehicle be legally self-propelled on a highway. (citation)

Section 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use.”

A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.

Varela argues that legislative history refers to a pocket bike as a “device” and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) But we are compelled by statute to conclude that a pocket bike is a type of device that comes within the definition of a motor vehicle. There is nothing inconsistent about referring to a motor vehicle as a device.

Nor did the trial court err in instructing the jury that a pocket bike is a motor vehicle. Because a pocket bike falls squarely within the statutory definition of a motor vehicle, it is a motor vehicle as a matter of law."

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Monday, May 23, 2011

OWI Appeal - Implied Consent Warnings Don't Violate Separation of Powers Clause

Today's case, Columbia County v. Devos, Slip Copy, 2011 WL 1885961 (Wis.App.) is being included in DAD due to the defense attorney's creativeness and 'moxie'. Here, the attorney argued that the addition of extra language in the implied consent warning was not authorized by the legislature, and thus its inclusion violated the separation of powers clause.

The contested 'additional' language was as follows:

“In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.”

The appellate judge found that the extra language was in fact authorized by another section of the Code besides the section with the original language, and so there was no error.

However, DAD enjoyed the creativity of the argument, and feels that under the correct factual conditions, it could be a valid theory of defense.

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Friday, May 20, 2011

New Montana DUI Bill Requires Breath Tests Twice Daily

A bill that requires repeat DUI offenders to submit to breath tests while awaiting sentencing for a DUI arrest was signed into law by Gov. Brian Schweitzer on May 6.

The 24/7 Sobriety Bill was promoted heavily by Montana Attorney General Steve Bullock and sponsored by Rep. Steve Lavin, R-Kalispell.

“As a Highway Patrol Trooper, Rep. Steve Lavin and law enforcement across our state see the carnage that repeat drunk drivers cause on our highways,” Bullock said following the bill’s passage in the legislature.

House Bill 106, the freshman legislator’s first bill, was approved by wide margins — 97-2 in the House and 41-8 in the Senate. Republican Reps. Jerry O’Neil, Keith Regier and Derek Skees and Republican Sen. Bruce Tutvedt voted in favor of HB 106, while Republican Sen. Ryan Zinke voted against the measure.

Under the bill, offenders arrested for a second or subsequent DUI are required to submit to a breath test twice a day, seven days per week, to show they’re sober from the time of their arrest to the completion of their sentence.

Bullock tested the 24/7 concept in a pilot program in Lewis and Clark County, but a similar program had already been in effect in Whitefish for about a year for people on bail awaiting sentencing . From May 2010 to April 2011, Lewis and Clark County officials administered more than 11,400 breath tests, and 99 percent of them came in at 0.0 percent.

The governor also signed Senate Bill 42, which makes it easier for law enforcement to get a warrant for blood tests on repeat offenders who refuse to submit to a breath test. Regier, Zinke and Tutvedt voted in favor of SB 42, while O’Neil and Skees were opposed.

Several bills failed in the legislature, including a measure that would extend the time frame in which prior DUI convictions could count in court. Under the current law, courts can only use DUI convictions within the past five years when determining charges and sentencing.

Montana has long been known as a binge-drinking state, and its highways are among the most dangerous in the nation. But several setbacks affected efforts to strengthen Montana’s DUI laws this legislative session.

In mid-January, Sen. Jim Shockley, R-Victor, was cited for an open-container violation after he was caught drinking a beer while driving through Missoula. Shockley, who was ready to present his DUI bill in Helena, was forced to resign his chairmanship of the Senate Judiciary Committee.

Then in early April, Republican Rep. Alan Hale, who owns a bar in Basin, surprised many with a speech that criticized DUI reform as bad for business. The DUI bills “are destroying a way of life that has been in Montana for years and years,” he said.

Supporters of tougher DUI bills included Rebecca Sturdevant, of Kalispell, representing Mothers Against Drunk Driving. Her son, Montana Highway Patrol trooper Evan Schneider, was killed Aug. 26, 2008, in a head-on collision on U.S. 2 near the House of Mystery. He was in pursuit of a small car that was driving erratically but was never found. The driver of the pickup truck that hit his patrol car during the pursuit had been drinking. Schneider and two people in the truck died in the crash.

“I think it’s a very, very important step forward in dealing with repeat offenders,” Sturdevant said about HB 106. “One of the key things with repeat offenders is they are driving drunk many times before they are arrested. This will make a huge difference in earlier intervention for these people.”

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Deerfield couple not liable for death of teen who drank in their home

Deerfield couple not liable for death of teen who drank in their home Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Thursday, May 19, 2011

DUI Appeal - Georgia Requires Right to Independent Test or Suppression Occurs

In State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.), the trial court suppressed the State's breath test on the basis of a failure to reasonably accommodate the defendant's request for an independent test. The facts indicated that the defendant Davis was arrested after being stopped at a roadblock:

Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn't know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary's or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary's and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger's vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.

In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:

The factors to be considered by the trial court in determining whether an officer reasonably accommodated an accused motorist's request for an additional chemical test include, but are not limited to: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facilities, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

Here, the trial court had previously found that:

[A]fter Davis requested an independent blood test, Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant's request, and the results of the State-administered breath test are inadmissible.

In affirming suppression, the appeals court concluded:

We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,

the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.

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Got An iPad? You Need These Apps. | Real Life Practice

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Wednesday, May 18, 2011

Drug Arrest Reversed Illegal Drug Dog Sniff

In Pfeiffer v. State of Texas, Not Reported in S.W.3d, 2011 WL 1734065 (Tex.App.-Texarkana) the defendant unsuccessfully challenged the validity of his continuing seizure in order to bring a canine unit to the scene following a lawful traffic stop. The facts were described as follows:

On March 22, 2007, on Highway 37 North, about a mile north of Clarksville, Red River County, Texas, State Trooper Matthew Kuhelengel stopped Lavern A. Pfeiffer's truck because the truck did not have mud flaps. Kuhelengel questioned Pfeiffer about his identity, place of residence, and travel destination. The officer twice told Pfeiffer that he was going to give him a warning about the mud flaps, and after checking Pfeiffer's license through dispatch, determined that he had no outstanding warrants. Upon further questioning by Kuhelengel, Pfeiffer admitted that he “got a DWI” thirty years prior. Pfeiffer then denied Kuhelengel's subsequent requests for permission to search the vehicle. Noting that Pfeiffer was “talking a lot,” “very nervous,” and that he had been “arrested a bunch of times,” Kuhelengel requested a canine unit and continued to detain Pfeiffer until it arrived. After the dog showed a positive response on the rear passenger door, a crude pipe was found in the rear floorboard and a bottle of methamphetamine was found in the front console. Pfeiffer was arrested and charged with possession of a controlled substance.
Pfeiffer argued that the warrantless search violated his Fourth Amendment rights because it lacked requisite cause and because he was illegally detained after the traffic stop was completed. The trial court denied Pfeiffer's motion. Pfeiffer pled guilty and received a ten-year probated sentence. On appeal, Pfeiffer argues that “his continued detention by the police was without sufficient cause, rendering the later search of his vehicle invalid.”

On appeal, the court agreed with the defendant and reversed. The court summarized the law on prolonged detention as follows:
"During a routine traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Caraway, 255 S.W .3d at 307. If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex.App.-Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg, J., concurring)). Once the officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that another offense has been or is being committed. Id. at 245."
The appeals court found that during the stop, Pfeiffer was unquestionably very nervous, and he tended to ramble when questioned. However, without more, the facts and circumstances present did not give rise to reasonable suspicion to allow the detention to be prolonged once the purpose for the original stop had been completed.

EDITORS NOTE: Had the drug dog arrived during the time that the initial purpose of the stop was still unfolding, the 'sniff' would have been lawful and the subsequent search upheld. See Illinois v. Caballes. The above case is all about the LENGTH, rather than the SCOPE, of detention.

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OWI Appeal - Wisconsin Court Uses Failures to Appear as Priors

In State of Wisconsin v. Devries, Slip Copy, 2011 WL 1844721 (Wis.App.), the defendant was found guilty of drunk driving and sentenced as a 5th timer based on the inclusion of Arizona and California drunk-driving matters as prior “convictions” under the Wisconsin statutes. The issue on appeal was whether the events in those states properly counted as prior convictions.
In Arizona, the documents indicated that: (1) Devries was arrested on August 31, 2005 for drunk driving; (2) Devries was directed to appear in court on the specified date; (3) Devries promised to appear in court on the specified date; (4) Devries had a lawyer for the Arizona matter; and (5) Devries defaulted on her obligation and promise to appear in court. Indeed, one of Devries's trial lawyers conceded that Devries had “violated a condition of her bond” in Arizona.
The appeals court in Wisconsin then held that the failure to appear was a conviction, and stated:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court when required. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”)"
In California the evidence evinced that: (1) Devries was arrested on December 26, 2003, for drunk driving; (2) Devries was “ordered” to appear in court on the date specified in the Notice to Appear; (3) Devries promised to appear in court on the date specified in the Notice to Appear; (4) Devries did not appear on the date specified in the Notice to Appear; (5) Devries had a lawyer for the California matter; (6) Devries pled “not guilty”; and (7) Devries did not appear for trial.
The Wisconsin appeals court then held that:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court after she was arrested and released even though she was “ordered” to do so, and she did not appear on the date scheduled for trial. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”).
Devries also argued that she did not have the requisite constitutional protections in connection with the Arizona and California matters, and that, therefore, those matters could not be counted to enhance her penalties for driving drunk in Wisconsin. The Wisconsin court, in disagreeing with Devries' contention, stated as follows:

Offenses that the State seeks to use as a penalty enhancer for a current offense may be collaterally attacked if the procedures underlying those predicate offenses were constitutionally flawed. See State v. Ernst, 2005 WI 107, ¶¶ 2, 22, 25, 283 Wis.2d 300, 306–307, 317, 318, 699 N.W.2d 92, 95, 100–101 (The “defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.”). If the defendant makes a prima facie showing that the procedures in the underlying matters were constitutionally flawed, the State has the ultimate burden to show that they were not. Id., 2005 WI 107, ¶ 27, 283 Wis.2d at 320, 699 N.W.2d at 102. In trying to meet that burden, the State has a right to question the defendant about the matters encompassed by the alleged constitutional infirmities. Id ., 2005 WI 107, ¶¶ 30, 33, 283 Wis.2d at 322, 324–325, 699 N.W .2d at 103, 104. If the defendant refuses to testify, the circuit court may conclude that the State has satisfied its burden to show compliance with the constitution. Id., 2005 WI 107, ¶¶ 35–36, 283 Wis.2d at 326–327, 699 N.W.2d at 105. Although the Record does not indicate that Devries refused to testify based on her Fifth Amendment rights, she did not testify about any matters that are of issue on this appeal. While a defendant is certainly not required to testify, the lack of testimony may affect his or her ability to show that the underlying enhancement-proceedings were constitutionally infirm.

Beyond mere assertion, Devries has not pointed to anything that even indicates that any of her constitutional rights were compromised. Indeed, she actually contends in her main brief that she “never knowingly, intelligently, or voluntarily waived her right to the assistance of counsel in California or Arizona” even though both the Arizona and California documents indicate that she did have lawyers in those states in connection with the her drunk-driving arrests.FN4 Her contention that the underlying Arizona and California matters were constitutionally flawed is wholly without merit and borders on being frivolous.FN5"

The Wisconsin court finalized its opinion by making the following bold statement:
"[I]n light of her having absconded in both Arizona and California before the matters there could be tried, her contention that she was not “afford[ed]” a trial is bizarre."
Editor's Note: Under Apprendi, all matters that enhance a penalty (except prior convictions) must be proved during trial beyond a reasonable doubt. Plus, the defendant normally has the right of confrontation. How would SCOTUS treat these type of 'convictions'? Are these documents be affected by the confrontation clause?

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Tuesday, May 17, 2011

OUIL Appeal - Michigan Destroys Blood and Violates Due Process is Claimed

This case comes to DAD through the watchful eyes of Michigan lawyer Michael Nichols (my what a busy boy Mike!). In People v. Reid, --- N.W.2d ----, 2011 WL 1775888 (Mich.App.), the defendant challenged his DUI conviction alleging that he was denied his right to an independent analysis of his blood sample due to the destruction the blood 6 months post arrest. The defendant wasn't charged with OWI until 21 months following his arrest. He also argued that his due process rights to a speedy trial were violated by the delay in charging him, when as a result of a 60 day retention policy, a video of his arrest was destroyed well prior to the charges being filed.
On appeal, the court acknowledged that his arrest occurred 21 months following his blood draw, and that his blood was destroyed while the charges were still pending. The court found that the destruction was not improper, since the defendant had 6 months following the arrest to still ask for a preservation of the sample. "We conclude that defendant had more than an ample opportunity to have his blood sample independently tested and, therefore, the trial court did not abuse its discretion in denying defendant's motion to suppress the test results."
As far as the speedy trial violation was concerned, the court apparently employed a Barker v. Wingo SCOTUS analysis (i.e. length of delay, reasons for delay, assertion of rights by defendant, and prejudice resulting from delay). Again the court found no violation, even though the tape was destroyed 19 months prior to the charges being filed (so that defendant never had a chance to seek preservation):
"Defendant also argues that the prosecutor gained a tactical advantage in the delay in bringing charges because the prosecutor knew that the Michigan State Police would have long since destroyed the videotape of the traffic stop, thus depriving defendant of potentially exculpatory evidence from the videotape. But this argument also fails. First, defendant merely speculates that this is the reason for the delay. Indeed, defendant is unable to establish that a videotape ever even existed. The arresting officer, Trooper Bommarito, testified that he could not recall whether the police car that he was driving that evening had a video camera. Based upon the fact that there was a blank space under “video” on his police report, he concluded that there “might not have been a video” because the normal practice is to write the car number in that spot if the car is equipped with video. He further testified that, even if a video had existed, it would have been taped over after 60 days. A second officer, Trooper Rowe, who arrived at the scene at approximately the time defendant's vehicle was stopped, did have a car with video. But that video was presumably turned in and taped over under the 60–day rotation policy.

But defendant does not show that the prosecution deliberately waited to bring charges so that the tapes would be lost. Indeed, the prosecutor did not merely wait two months to bring charges, but almost two years. Not only is it mere speculation that the videotape would have been helpful to defendant and further speculation that the prosecutor waited to bring charges until any such tape was reused under the 60–day rotation policy, that speculation falls apart in light of the fact that the prosecutor then waited an additional 18 months or so to bring charges. It would seem that if the prosecutor's motivation in delaying the charges was to wait for any videotape to be reused, the charges would have been brought much sooner than was the case.

For the above reasons, we conclude that defendant has not shown a due process violation arising from the delay in charging him."

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OWI Appeal - Wisconsin Video Can't Beat Judges Eyes

In State of Wisconsin v. Walli, Slip Copy, 2011 WL 1775995 (Wis.App.), an officer equipped with an in-squad video camera stopped the defendant for crossing the centerline. The cop claimed the video accurately established what happened. A review of the tape by the parties and the judge presented differing views of whether the driver crossed the centerline. On appeal, the appellate court first needed to determine what standard of review should be applied to video evidence - 'de novo' or 'clearly erroneous'. "We therefore decide that when evidence in the record consists of disputed testimony and a video recording, we will apply the clearly erroneous standard of review when we are reviewing the trial court's findings of fact based on that recording." The court left for another day the issue of what standard applies when the ONLY evidence is a video.

Since a blind justice may defer to the trooper instead of a video, the court refused to rule in favor of the defendant. "In conference, we viewed the video recording from Munnik's squad car and conclude that the trial court's finding that Walli crossed the center line is not clearly erroneous."

NOTE: Given the need for the court to decide the standard on review here, it is obvious to this writer that the decision about whether the video supported or contradicted the cop was not unanimous.

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DWI Appeal - Minnesota Stop for Cracked Windshield OK'd

In State of Minnesota v. Oliveros, --- N.W.2d ----, 2011 WL 1833057 (Minn.App.) the defendant argued that his stop was illegal because she was stopped for a windshield that was cracked but did not impair her vision. Such a windshield was not illegal. Officer Anselment stopped Oliveros's vehicle after observing that her windshield was cracked, believing it was in violation of Minn.Stat. § 169.71, subd. 1(1) (2008), which states that “[a] person shall not drive or operate any motor vehicle with a windshield cracked or discolored to an extent to limit or obstruct proper vision.” Oliveros contends that her windshield was cracked but that the crack did not obstruct her vision. She contends that because she was not cited for violating this statute and because Officer Anselment could not articulate at her omnibus hearing whether she had violated both elements of the statute, the stop of her vehicle was unlawful. The district court found that:

There was no testimony [at the omnibus hearing] on the specifics of the crack that Officer Anselment observed in the windshield except that it was noticeable while traveling behind [Oliveros's] vehicle. Officer Anselment did not describe the crack in the windshield because he could not remember where the crack was at the time of the contested hearing almost six months after the incident. In the Statement of Probable Cause attached to the complaint and the Application for Judicial Determination of Probable Cause to Detain An Adult, it was described as a “large crack in the windshield of the vehicle.”
On appeal, the court differentiated the facts herein from a prior case where a stop for 3 headlamps on a motorcycle was found invalid when it turned out that the other 2 lamps, being auxiliary lamps, were not illegal:

"Oliveros argues vigorously that Office Anselment did not have a reasonable, articulable suspicion to stop her because, although he could see a cracked windshield, he could not tell from the outside if it actually impaired her vision. Oliveros cites George as support. State v. George, 557 N.W.2d 575 (Minn.1997). There, an investigatory stop was held to be unlawful because there was no violation of an equipment law, even though the officer thought that there was. Id. at 578–79. The officer suspected an equipment violation, but this suspicion was wrong. The officer testified that it was a violation to have three headlights on a motorcycle. George did not have three headlights on his motorcycle, he had one headlight and two permissible “auxiliary passing lamps.” Id. at 578. The headlight configuration would have been easily visible to the naked eye. The differences between George and the present case are multiple.

First, the Minnesota Supreme Court stated that George's headlight configuration “clearly conformed to Minnesota law.” Id. at 576. Appellant's cracked windshield does not clearly conform to any Minnesota law."

Second, in George, the supreme court took note of the trial court's finding that the stop was “no doubt ... a pretext stop in that the officer's intention was to seek a consensual search of [George's] motorcycle and belongings.”

Finally, the suspected headlight-configuration violation in George was a technical equipment violation. In forming articulable suspicion, police officers may draw on their experience and training. See generally State v. Harris, 590 N.W.2d 90, 99 (Minn.1999) (stating that police “may draw inferences and deductions that might elude an untrained person” (quotation omitted)); State v. Capers, 451 N.W.2d 367, 371 (Minn.App.1990) (noting that officer's experience weighs heavily in determining articulable suspicion), review denied (Minn. Apr. 25, 1990). But the consequence of this in George was that the police hunch had to be right. See George, 557 N.W.2d at 579 (holding that because state law clearly permitted the motorcycle lighting configuration, “[t]here was no objective basis in the law for the trooper to reasonably suspect” a violation).

George implies a police duty to know the law. See also State v. Anderson, 683 N.W.2d 818, 823–24 (Minn.2004) (holding that officer's “mistaken interpretation of a statute” cannot provide suspicion justifying a stop). It does not require police to conduct a factual investigation, which in this case would have been impossible, to confirm their suspicions before conducting a stop. The very purpose of an investigative stop is to allow for further investigation. See generally Wilkes v. Comm'r of Pub. Safety, 777 N.W.2d 239, 244–45 (Minn.App.2010) (noting police may conduct a stop to “make reasonable inquiries”).

Appellant's contention that both the cracked windshield and the impairment of the driver's vision had to be seen at the same time to justify the stop would gut the law, virtually ending enforcement of the prohibition against the dangerous combination of a cracked windshield and driver vision impairment."

Thus, the appeals court concluded that this stop was valid. On the other hand, the dissent offered a vigorously opposing point of view:

The stop here was based on the officer's incorrect belief that a cracked windshield alone was a violation of the law. The stop, the arrest, the charges, and the state's case-in-chief at the omnibus hearing were premised on the incorrect notion that a cracked windshield per se violates the law. Even on appeal, the state maintains that erroneous belief in its brief: “Unlike the officer in George, Officer Anselment had an objective legal basis for suspecting that appellant was in violation of a traffic law. After all, a cracked windshield is a violation of Minnesota law. Therefore, State v. George is distinguishable and not similar in facts. ” (Emphasis added.)

The majority here goes astray in three ways. First, in attempting to distinguish George, the majority contends that, in that case, the officer misapprehended the law and there was no statutory prohibition against three headlights. But here, according to the majority, there was a violation of the law. In that conclusion, the majority begs the question. It assumes that which has not been shown by the evidence, namely, that the crack was of such an extent that it limited or obstructed Oliveros's vision. Furthermore, Officer Anselment also misapprehended the law for, as he testified, his sole basis for the stop was his belief that a cracked windshield per se violates the law. Thus, this case is not distinguishable from George.

The majority's second error is its unwarranted reliance on the unpublished decision in State v. Wright, No. C4–94–898, 1995 WL 81382 (Minn.App. Feb. 28, 1995), review denied (Minn. Apr. 18, 1995). As an unpublished case, Wright has no authoritative or persuasive value here. Additionally, the facts in Wright are not sufficiently developed to show a reliable similarity to this case. The factual issue there appeared to be one of credibility relating to an alleged pretextual traffic stop. We have no credibility issues here. Oliveros agrees that Officer Anselment testified honestly and accurately about the stop. Oliveros does not contend that the stop was pretextual and, at least implicitly, concedes that Officer Anselment was at all times acting in good faith and with an honestly held belief that a cracked windshield violated the law.

Of particularly serious concern is the majority's apparent acceptance of the statement in Wright that it is proper for an officer to make “an investigatory stop to determine whether the crack obstructed proper vision had a particularized and objective basis.” Id. at *1. The proposition the majority appears to endorse is that, if a law-enforcement officer observes a cracked windshield but is not able to conclude that the crack violates the second condition of the statute, the officer may stop the vehicle and then develop an articulable, objective basis for the stop. At least as to cracked windshields, the majority would seem to condone a stop on some evidence (an observed crack) coupled with a hunch (that the crack might violate the law). But, as the majority notes, “an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675–76 (2000). The “reasonable, articulable suspicion” must precede the stop because without it the stop is not justified. A cracked windshield alone can never justify a brief, investigatory stop because it simply provides no basis for a belief that “criminal activity is afoot.”

Finally, the majority—as well as the state and the district court—appears to give credit to the officer's belief that “he could have cited Oliveros for a cracked windshield.” That is not a fact that deserves credit in assessing the validity of this stop because Officer Anselment was incorrect in his belief that he could issue a citation merely for a cracked windshield.

The state failed to show that Officer Anselment had a reasonable, articulable suspicion that Oliveros was in violation of the law when he stopped her car, and the district court clearly erred when it speculated that the essential second condition of the statute was satisfied, despite the lack of any evidence whatsoever addressing that condition. The majority now perpetuates the district court's error, and I would reverse.

EDITORS NOTE: If an officer mistakenly believes that standard auxiliary equipment violates state law (because he thought they were headlights instead of auxiliary lights) then a stop can be illegal. But if an officer mistakenly believes that pine tree freshener is illegal even if it does not obstruct a driver's view, then the stop is lawful. Seems difficult to rationally explain under that analysis, so both appear to be mistake of fact scenarios. It is also interesting that, in Minnesota, apparently a 'pretext stop' could be unlawful even if there was otherwise a valid basis for a stop, contrary to federal rulings...

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Monday, May 16, 2011

DUI Appeal - Fla. Bad Blood Sample Leads to Inneffective Lawyer Claim

In Goldman v. State of Florida, --- So.3d ----, 2011 WL 1135263 (Fla.App. 4 Dist.) following conviction, the defendant alleged her trial attorney provided ineffective assistance by failing to retain a toxicologist to challenge the blood alcohol analysis. Regarding the blood samples, there was a gap in time on the property receipt of 31 to 43 hours FN1 between the blood draw and the time the property receipt indicates the samples were placed in refrigeration. There was also a discrepancy between the property receipt and testimony at trial regarding who the officer turned the blood samples over to. One sample had clotted and was not usable. The other sample indicated a blood alcohol content (BAC) of 0.20. The state's expert testified that a person with this blood alcohol level would exhibit confusion, staggering, impaired cognitive function and slurred speech. Goldman did not exhibit these signs. Officers noticed a faint odor of alcohol and she appeared upset.

The motion alleged that Goldman has now retained a toxicologist who would testify that improper handling of the blood samples, such as storing at high temperatures, can result in a higher BAC reading. Goldman argued that trial counsel should have presented expert testimony to refute that Goldman was intoxicated at the time of the accident. Because defense counsel failed to call a toxicologist, Goldman was unable to present to the jury scientific evidence about what happens if blood samples are not properly refrigerated. Goldman believes she could have successfully challenged the BAC evidence, and as a result, the state would have to prove intoxication through the officers' testimony.

Only the Westlaw citation is currently available.

The appeals court commented:

"If defense counsel never consulted a toxicologist and Goldman did not know that there was a basis to challenge the blood results, the waiver of her right to present evidence was not knowing and voluntary. Even assuming defense counsel had investigated this issue, the failure to present evidence that could explain why the BAC results could be wrong where Goldman otherwise had no good defense was not a reasonable strategy."

Continuing, the appeals court noted that the evidence regarding the blood test inaccuracy were many:

"Goldman has pointed to a number of factors that would support her belief that the blood may have been mishandled and the test results were inaccurate including her behavior at the scene, the inability to collect a full vial of blood (a sign of loss of vacuum in the tube, which could lead to contamination of the sample), the time that elapsed between collection and delivery to the property room, and the clotting of the blood in one tube, which could indicate mishandling. Goldman's handwriting at the scene was inconsistent with a person having a blood alcohol level nearly three times the legal limit. In her statement to police she indicated that she wanted a blood test because it would prove she had only three beers. The state's expert testified that a person Goldman's size would have to drink six and a half beers to have a 0.20 BAC. Goldman was detained for five hours and made no request to use a restroom.

There are sufficient reasons apparent from the record to question the BAC results. Goldman showed a reasonable probability the outcome would have been different if the jury had received expert testimony about how temperature, contamination from the loss of vacuum in the tube, and other mishandling could increase the amount of alcohol in the sample. This testimony could reconcile the conflicting evidence and create a reasonable doubt about whether Goldman's blood alcohol level exceeded the legal limit. This was the state's main evidence of intoxication. The other signs of impairment were consistent with non-impairment."

In an additional claim, it was alleged that trial counsel was ineffective in failing to investigate the chain of evidence issue. "[I]nvestigation of the handling and storage of the blood samples could have explained the seemingly anomalous test results" stated the appeals court.

Concluding that the post-conviction petition alleged enough to require a hearing, the appeals court concluded:

"Several of Goldman's claims indicate that counsel may have relied on an unavailable defense and misled the jury about evidence the defense would present. Goldman may not have satisfied the prejudice prong of StricklandFN2 in each of these claims individually. However, taken together in light of the legally sufficient claims of ineffective assistance of counsel in grounds six and seven, we cannot say that Goldman was not prejudiced by cumulative errors in this case."

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NC sheriff blames cheese for false drug test - Crime/Safety - NewsObserver.com

NC sheriff blames cheese for false drug test - Crime/Safety - NewsObserver.com Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Monday, May 09, 2011

DUI Appeal - Washington OKs Use of Expired Blood Tubes

In State of Washington v. Johnson, Not Reported in P.3d, 2011 WL 1485635 (Wash.App. Div. 1) the court summary reads as follows:

Michael Johnson appeals his judgment and sentence for felony driving under the influence of intoxicants (DUI). Because the State presented prima facie evidence that the blood analysis performed was free from adulteration, the court properly denied Johnson's motion to suppress that evidence. In a statement of additional grounds, Johnson claims he was denied his right to a fair trial because two witnesses involved in processing the evidence were unavailable to testify at trial. This argument does not warrant reversal. Washington State Patrol Trooper Gerald Ames responded to a one car collision on Interstate 5. There he found a Jeep Wrangler tangled in the cable guard rail on the side of the interstate. Johnson was standing in front of the Jeep and informed Trooper Ames that he was not injured. Johnson claimed he was run off of the road by another vehicle. Trooper Ames performed a records check and learned that Johnson's driving status was revoked so he placed Johnson under arrest. Although Trooper Ames did not smell intoxicants, he noticed that Johnson was “lethargic, disoriented, walked with a stagger, and was unsteady on his feet.” After additional observation of impairment, Trooper Ames notified Johnson that he was under arrest for DUI. Trooper Ames then transported Johnson to St. Joseph's Hospital for a blood draw. Phlebotomist Alicia Kester performed the blood draw. Trooper Ames supplied her with two tubes in which to collect the blood samples. Kester informed Trooper Ames that the tubes were past their expiration date by almost four months, but he instructed her to use them anyway. Dr. Naziha Nuwayhid, a forensic scientist at the state toxicology laboratory, tested both blood samples nearly two years after Johnson's arrest. Only one of the results was admissible at trial and that result showed normal therapeutic levels of Clonazepam and higher than normal therapeutic levels of Oxycodone in Johnson's blood. The State charged Johnson with felony DUI and another crime unrelated to this appeal. Before trial, Johnson moved to suppress the blood analysis evidence, arguing that the blood sample was improperly collected. After an evidentiary hearing, the trial court denied Johnson's motion and entered written findings of fact and conclusions of law. The blood analysis evidence was admitted at trial, without objection. A jury found Johnson guilty of felony DUI and the court imposed a standard range sentence.
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Saturday, May 07, 2011

DWI Appeal - New Jersey CDL Driver Wrongfully Charged with Refusal

In State of New Jersey v. Nunnally, --- A.3d ----, 2011 WL 1660628 (N.J.Super.A.D.) the defendant was arrested for a violation of the NJ statute prohibiting operation of a commercial motor vehicle by a driver “with an alcohol concentration of 0.04% or more.”. After defendant refused to submit to the breath test, the arresting officer also charged him with violating the general refusal statute instead of the statute pertaining to refusal by a person driving a commercial vehicle (CDL refusal statute). In New Jersey, a complaint for refusing a breath test must be made within ninety days after the commission of the offense, which had already passed. The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.

On appeal, the State raised three arguments. First, it contended that the proposed amendment was solely to correct a “technical defect” in the complaint. The appeals court concluded that a failure to cite the correct substantive offense was not a “technical defect” subject to amendment.

Second, the State argued that the amendment should have been permitted because “a CDL refusal is the same substantive offense or a lesser included offense of a general refusal.” The appeals court concluded that CDL refusal was not a lesser included offense of general refusal, because the two offenses require proof of different facts.

Finally, the State asserted that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. The appeals court concluded that this driver could not be charged with a general refusal because he was arrested for CDL DUI (0.04% and above) but was never arrested for a general DUI (i.e. 0.08% or above):

"It therefore makes logical sense that an arrest for the predicate offense is an element of the corresponding refusal offense, because the purpose of the breath test is to obtain “scientific evidence” to prove the offense for which the person was arrested. Marquez, supra, 202 N.J. at 497. Of course, the Legislature conceivably could have structured the general and CDL refusal laws differently, to permit prosecution for general refusal based on an arrest for CDL DUI, but that is not how the laws were written. Further, even if we deemed the refusal statutes to be ambiguous, because they are quasi-criminal we would be constrained to construe them narrowly, in favor of the defendant."

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Friday, May 06, 2011

DWI Appeal - NJ Stop for Waiting at Green Light Illegal

In State of New Jersey v. Brackin, --- A.3d ----, 2011 WL 1661381 (N.J.Super.A.D.), the defendant was pulled over after he was stopped at a green light for 10 seconds and then pulled away without incident. The first judge found that the stop was reasonable. Counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J.Super. 325 (App.Div.1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function.On appeal to the Law Division, following a review of the record and oral argument on the law, the judge found that reasonable suspicion sufficient to justify the stop had been demonstrated as the result of defendant's delay in proceeding on a green light. In reaching his conclusion, the judge relied on an unpublished opinion affirming a determination that reasonable suspicion was raised by defendant's conduct in remaining stopped after a light turned green for more than sixty seconds and by the fact that the defendant looked directly at the police officer before proceeding slowly through the intersection. In that decision, Cryan was distinguished on the basis that the delay in proceeding was much shorter and the driver did not look directly at the police. Despite the fact that the evidence in the present case more closely resembled that of Cryan than the unreported decision upon which the judge relied, he found the stop to have been justified. After finding defendant guilty, the judge imposed fines and surcharges, a two-year loss of license and registration privileges and forty-eight hours of instruction at the Intoxicated Driver's Resource Center. A stay of sentence pending appeal was denied.
The appeals court here reversed the conviction and ruled that the stop was illegal:

"[W]e agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.* * * * Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established."

EDITORS NOTE: There are several state cases on both sides of the fence on this issue. For example, in Illinois it has been held that a delay of 3-5 seconds at a green light, while the officer is waiting behind the vehicle, is enough to stop the vehicle.

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Referendum efforts target jury trial option in DUI cases

Referendum efforts target jury trial option in DUI cases

A Phoenix DUI defense attorney has filed the paperwork for a referendum to repeal part of a new DUI law.

Senate Bill 1200, which goes into effect on Dec. 31, makes numerous changes to the state's DUI laws. Among other provisions, it reduces the time some first-time DUI offenders must have an ignition-interlock device on their vehicle to six months instead of a year, allows cities and counties to create a home-detention programs for eligible DUI offenders and allows a jury trial only for DUI suspects with prior convictions.

The Committee for the Right to Jury Trial, led by attorney Clifford Girard, wants to ask voters to repeal the part of the new law that no longer allows all DUI suspects to request a jury trial.

"I believe the right to a jury trial is a God-given right," Girard said. "If you ask the average person, and I've been doing that, if a member of your family is accused of DUI, would you want them tried with a jury of their peers or a judge, the overwhelming majority say a jury."

Girard said he believes that all suspects are entitled to a jury trial under the Arizona Constitution.

The committee must gather 86,405 signatures by July 19 to qualify for the 2012 ballot. Girard said the challenge would be finding about 200 volunteers who understand the issue and can explain it to voters.

"But I don't think it will be hard to get people to sign," he said. "We have a shot at it."

Read more: http://www.azcentral.com/news/election/azelections/articles/2011/05/05/20110505arizona-dui-jury-trial-option-brk05-ON.html#ixzz1LZsCEObs

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Thursday, May 05, 2011

DUI Appeal - Destruction of Video OK Say Mississippi

In Ellis v. State of Mississippi, --- So.3d ----, 2011 WL 1486610 (Miss.App.), NCDD members Vic Carmody, Kevin Stewart, and Lance Mixon appealed the defendant's conviction, based in part on the issue of whether the circuit court erred in failing to grant a verdict of acquittal because the State failed to preserve video evidence from the traffic stop.
The defendant was arrested on January 14, 2009. On February 2, 2009, Ellis's attorney sent a letter to Patrolman Conner citing Mississippi Code Annotated section 63–11–15 (Rev.2004) FN3 and requesting eight items, one of which was “the video, if any, taken by the officer of the test or tests.” By the time of the circuit court trial, Ellis had converted this request for any video of alcohol testing by the officer to mean the trooper's memory card of Ellis's traffic stop. Patrolman Conner did not supply the memory card to Ellis. Patrolman Conner testified that if there was nothing “extraordinary about the stop and nothing goes on,” he does not keep the memory card of each traffic stop. Patrolman Conner said there was no requirement that he keep the card of each stop and that he routinely erased the memory card in order to record future stops. He stated: “When it fills up, you've got to get rid of it where you can video your future stops.”

FN3. The section provides: “Upon the written request of the person tested, or his attorney, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or to his attorney.” Miss.Code Ann. § 63–11–15.

The appeals court summarized the applicable federal law as follows:

“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). In Trombetta, a two-part test was developed for determining whether a defendant's due-process rights are violated in situations where physical evidence has been destroyed. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489. Secondly, the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. A bad-faith factor to the Trombetta test was added in Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988). There the United States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58.

The Mississippi appeals court identified the 3-part due process test for destruction of video as follows:

"What has developed then is a three-part test to use when determining if a due-process violation has occurred when physical evidence has been destroyed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card."

As far as the exculpatory value was concerned, the court stated that:

"[W]e doubt that the memory card had apparent exculpatory value prior to its erasure. Patrolman Conner testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis's own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test."

As far as the bad faith element was concerned, the appeals court wrote:

"We can find no bad faith on the part of the State in the destruction of the card. Ellis's attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. Patrolman Conner explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera's memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis's traffic stop to circumvent its disclosure. In failing to preserve the card for Ellis, Patrolman Conner was acting “in good faith and in accord with [his] normal practice.” Trombetta 467 U.S. at 488 (quoting Killian v. United States, 368 U.S. 231, 242 (1961)). Further there is no evidence in the record of any “allegation of official animus towards [the defendant] or of a conscious effort to suppress” the memory card. Id.

Thus the court denied this ground on appeal. It should be noted that two interesting facts appear from this opinion: first, the request for video was not received until AFTER it had already been destroyed. If the destruction (however innocent or inadvertent) had occurred after the request was received, the outcome may have been different (as it has been in other opinions).

Second, the appeals court failed to address the applicability of Mississippi Code Annotated section 63–11–15, which arguably required preservation of this video independently from the due process clause. Some states have found that a destruction of a video, while not a violation of the due process clause, was still sanctionable for violating state discovery rules.

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Tuesday, May 03, 2011

OWI Appeal - Wisconsin Says Misreading License Plates OK for Stop

In State of Wisconsin v. Reierson, Slip Copy, 2011 WL 1587124 (Wis.App.), the police officer ran the license plates of a vehicle it was following. The vehicle's registration came back as expired, and the officer activated his emergency lights and made a traffic stop, pulling his squad car up behind the parked vehicle.

The officer got out of his car to make contact with the driver. Approaching the parked vehicle, the officer discovered that he had misread the last numeral on the license plate. The officer testified a small screw or bolt going through the plate had obscured his view of the last numeral. Nonetheless, he officer continued toward to the vehicle to explain his reasons for making the stop. When the officer reached the driver's side window, a man later identified as Andrew Reierson opened his car door to communicate with the officer because his window was stuck. The officer detected the odor of intoxicants on Reierson's breath and noticed that his eyes were red. Reierson performed field sobriety tests at the officer's request, and submitted to a preliminary breath test, which showed Reierson had a blood alcohol content (BAC) of .16. Reierson was subsequently charged with OWI, third offense.

The court stated as follows:

"[W]e conclude the (trial) court properly denied the motion to suppress because the traffic stop was the product of the officer's reasonable belief, which was based on a good-faith mistake of fact, that Reierson was operating a vehicle with an expired registration..."
"We have found no published Wisconsin case addressing the present situation, where the lawfulness of an investigatory traffic stop turns on an officer's good-faith mistake of fact. However, as a general rule, courts decline to apply the exclusionary rule where an officer makes a reasonable, good-faith factual mistake. See United States v. Cashman, 216 F.3d 582, 587 (7th Cir.2000) (where officer reasonably believed crack in windshield was long enough to violate statute, but it was not in fact, officer had probable cause to stop for traffic violation); see United States v. Miguel, 368 F.3d 1150, 1153–54 (9th Cir.2004) (citing United States v. King, 244 F.3d 736, 739 (9th Cir.2001) (“An officer's correct understanding of the law, together with a good-faith error regarding the facts, can establish reasonable suspicion.”)); see also John Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L.Rev.. 1027, 1044 (1974); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L.Rev.. 307, 348 (1982).

"By contrast, “[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.” United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (surveying federal circuit decisions), cert. denied, 549 U.S. 1237 (2007); State v. Longcore, 226 Wis.2d 1, 8–9, 594 N.W.2d 412 (Ct.App.1999), aff'd by equally divided court, 2000 WI 23, 233 Wis.2d 278, 607 N.W.2d 620 (officer's erroneous application of law to the facts does not give probable cause for a traffic stop); United States v. McDonald, 453 F.3d 958, 961 (7th Cir.2006) (stop held to be invalid where officer mistakenly believed that Illinois statutes prohibited defendant's use of a turn signal while rounding a bend); but see United States v. Martin, 411 F.3d 998, 1001 (8th Cir.2005) (objectively reasonable mistakes of either fact or law can support probable cause).

The appellate court concluded that the stop of the defendant was lawful because the officer had probable cause to stop Reierson for operating with an expired registration, contrary to Wis. Stat. § 341.04(1), based on the officer's good-faith mistake of fact in misreading Reierson's license plate number.

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Monday, May 02, 2011

DUI Appeal - NC Roadblock Challenged for Unlawful Purpose

In State of North Carolina v. Nolan, --- S.E.2d ----, 2011 WL 1467572 (N.C.App.) the defendant appealed the validity of a roadblock, alleging that its primary purpose was unlawful, i.e. general crime control. A roadblock whose primary purpose is general crime control is unconstitutional under the US Supreme Court case of City of Indianapolis v. Edmond.

The defendant was stopped at the checkpoint. Deputy J. Moore (“Deputy Moore”) of the FCSD, one of the officers assigned to the checkpoint, approached defendant's vehicle and asked defendant for his license. As Deputy Moore spoke with defendant, he detected an odor of alcohol. Deputy Moore asked defendant “about the odor, and he said he had not been drinking.” Deputy Moore then asked defendant “about ... a six-pack of Budweiser Select” which Deputy Moore observed “in the back seat with two bottles missing.” When Deputy Moore asked defendant about the missing bottles, defendant admitted he “had a couple earlier.” Deputy Moore then asked defendant to exit the vehicle, which he did. Deputy Moore then advised defendant that he was going to conduct a field sobriety test and asked defendant to “pull the stuff out of his pockets.”

Defendant prepared for the field sobriety test by removing the objects from his pants pockets. As defendant removed a sunglasses case from his pants pocket, a second officer, Deputy J. Bracken (“Deputy Bracken”) of the FCSD, who was assigned to the checkpoint, observed a plastic bag containing a substance which appeared to be marijuana. Deputy Bracken asked defendant, “What's the plastic baggie?” and defendant replied, “Uh, oh.” Deputy Bracken searched defendant and the search revealed another plastic bag, a glass pipe, and a lighter. A K–9 officer approached with a K–9 dog, to detect the presence of drugs in the vehicle. When officers searched defendant's vehicle, they discovered multiple items of contraband, including drugs.

The appeals court then reviewed the defendants assertion that the purose of the roadblock was illegal crime control and/or drug interdicition. "When considering a challenge to a vehicle checkpoint, the reviewing court must undertake a two-part inquiry to determine whether the checkpoint meets constitutional requirements: first, the court must determine the primary programmatic purpose of the checkpoint, and second, if a court finds that police had a legitimate primary programmatic purpose for conducting a checkpoint the court must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances." In so determining, the appeals court wrote:

"Our Court has previously held that where there is no evidence in the record to contradict the State's proffered purpose for a checkpoint, a trial court may rely on the testifying police officer's assertion of a legitimate primary purpose. However, where there is evidence in the record that could support a finding of either a lawful or unlawful purpose, a trial court cannot rely solely on an officer's bare statements as to a checkpoint's purpose. In such cases, the trial court may not simply accept the State's invocation of a proper purpose, but instead must carr[y] out a close review of the scheme at issue. This type of searching inquiry is necessary to ensure that an illegal multi-purpose checkpoint [is not] made legal by the simple device of assigning the primary purpose to one objective instead of the other[.]"

The court concluded that the primary purpose of the roadblock herein was the detection of impaired drivers. The court found that the police officer's testimony regarding the primary programmatic purpose of the driver's license checkpoint, as supplemented by written checkpoint plan, supported the trial court's finding that the primary programmatic purpose of the checkpoint was the detection of drivers operating a motor vehicle while impaired, and not merely to further general crime control.

Additionally, the court found the police order for the defendant to empty his pockets reasonable:

"When Deputy Moore noticed defendant was carrying a small knife, he asked defendant about a bulge in defendant's pants pocket. Defendant then emptied his pockets, and Deputy Bracken observed in plain view a clear bag containing a substance which he believed to be marijuana. Although defendant was not charged with driving while impaired, he possessed a weapon, drugs, and drug paraphernalia. The actions taken by Deputies Moore and Bracken were reasonably necessary to maintain their safety during the operation of the checkpoint."

EDITORS NOTE: What was't specifically addressed was whether the initial order to exit, which was based only on an unquantified odor of alcohol and two missing bottles of beer from a six-pack, was reasonable. The US Supreme Court in Michigan v. Sitz did suggest that something more than the suspicionless seizure itself would be required to pull motorists out of their cars, and this point was notferreted out in the courts opinion herein.

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