Wednesday, May 25, 2011

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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