Friday, September 30, 2011

DUI Laws - Maryland Bars Tests Where Analyst Doesnt Testify

In the upcoming months, SCOTUS will be deciding whether the Confrontation Clause is violated when a profile of DNA is developed from semen left on a victim by a non-testifying analyst is then used by a testifying analyst who offers the opinion that there is a 'match' with the defendant. This case is known as Williams v. Illinois.

In Derr v. State of Maryland, --- A.3d ----, 2011 WL 4483937 (Md.), the same factual issue occurred. A person was sexually assaulted in 1985 and swabs were obtained, which contained semen. Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence. A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). Dr. Donovan did not testify at trial.

In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists (who also did not testify at trial) and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists' results, Dr. Luttman determined that the reference sample matched Derr's profile in CODIS and so testified. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team's analysis, with no indication that she observed the “bench work” FN5 at the time it was performed by her team.

The appeals court stated as follows:

"In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause."

In concluding that the Confrontation Clause was violated, the court stated:

"When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. This is because “the prosecution may not introduce such [evidence] without offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2709, 180 L.Ed.2d at 615. In the case of DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713–17, 180 L.Ed.2d at 619–24.

"We reach this conclusion for several reasons. First, the DNA profile and report are made for the primary purpose of establishing facts relevant to a later prosecution, and an objective analyst would understand that the statements will be used in a later trial. Stated differently, the analyst who generated the report must have known that the purpose of the testing was ultimately to establish the perpetrator's identity through DNA evidence. Second, the testing results, and the resulting DNA profile, can be considered an affidavit because they are the functional equivalent of in-court testimony, offered to establish prima facie evidence of guilt, which constitutes formalized testimonial material. Third, the statements produced by DNA testing are testimony under Crawford because the statements are solemn declarations made to prove a fact, namely the identification of the sample and possible match. Finally, the analyst who performs the DNA analysis is a witness for the purpose of the Confrontation Clause because the DNA profile created is a representation “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2714, 180 L.Ed.2d at 621. Therefore, the DNA profiles created by lab analysts, the reports they produce, and the conclusions or opinions they form contain testimonial statements that are subject to the requirements of the Confrontation Clause.FN12"

The court also discussed the claim that Rule 703 (the same as FRE 703) should allow such evidence to be admitted:

"In evaluating a Confrontation Clause claim of this sort, involving surrogate testimony and scientific testing, we must address the continued validity and application of Md. Rule 5–703. We shall hold that, because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5–703 offends the Confrontation Clause, such testimony will not be admissible. As the United States Supreme Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ “ Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion. In such a case, Md. Rule 5–703, as applied, would not appear to offend the Confrontation Clause.

Thus, the defendant's judgment was reversed.
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Wednesday, September 28, 2011

DUI Laws - Making Prisoner Wear Jail Attire Illegal During Trial

Some of us have clients who remain in custody while they are being tried. When that happens, keep in mind that it is unconstitutional to force a man (or woman) to trial while attired in prison garb. In Leslie Smith v. Commonwealth of Kentucky, Not Reported in S.W.3d, 2011 WL 4407486 (Ky.App.), the defendant was brought to trial for first-degree promoting contraband for allegedly possessing marijuana while confined in the Green River Correctional Complex, and one count of being a first-degree persistent felony offender. A bifurcated jury trial was conducted on November 17, 2009. During the entirety of the jury trial, Smith wore prison-issued khaki pants and a khaki shirt. The khaki shirt included a white label, sewn on the left side of the shirt, which contained Smith's name and inmate number. At the conclusion of the trial's first phase, the jury found Smith guilty of one count of first-degree promoting contraband.

In Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the United States Supreme Court recognized the inherent prejudice suffered by a defendant who is forced to appear before a jury in distinctive prison garments. The Court held that it is reversible error if, over a defense objection, the defendant is compelled to appear in jail clothing before a jury. Estelle, 425 U.S. at 512–13. Kentucky has likewise acknowledged that requiring a defendant to appear in front of a jury in identifiable jail attire constitutes reversible error provided the defendant properly objects. Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (1976). Estelle and Scrivener clearly hold, however, that a defendant's failure to object “to being tried in prison attire, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at 512–13; Scrivener, 539 S.W.2d at 292.

On appeal, the court stated as follows:

"In the case sub judice, the record is clear that Smith did not object to wearing prison-issued clothing either before or during the trial. Thus, Smith's claim of error does not even rise to the level of reversible error, much less palpable error. Additionally, Smith committed the offense for which he was being tried while he was incarcerated. During the first five minutes of voir dire, the Commonwealth advised the jury that this case was about Smith possessing marijuana while confined in prison. Consequently, the jury knew from the trial's commencement that Smith was currently, or at least had recently been, incarcerated. Further, while testifying in his defense, Smith admitted he was a convicted felon currently confined in the Green River Correctional Complex. “No prejudice can result from seeing that which is already known.” Estelle, 425 U.S. at 507 (quoting United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir.1973)). Therefore, we are unable to conclude that there is a substantial probability that the result would have been different if Smith did not appear before the jury in prison attire. Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky.App.2007). Nor can we conclude that Smith's appearance before the jury in prison-issued clothing so seriously affected the fairness or integrity of Smith's trial as to be “shocking or jurisprudentially intolerable” thereby warranting reversal.

A second additional issue was raised on appeal. During sentencing, the state introduced evidence of priors where the charges had been dismissed or the convictions set aside:

"[I]n Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky.1996), our Supreme Court recognized that while KRS 532.055(2)(a) authorizes the Commonwealth to introduce the defendant's prior convictions, it may not introduce prior charges that were ultimately dismissed. “Thus, it is well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside.” Cook v. Commonwealth, 129 S.W.3d 351, 364 (Ky.2004); see also Cuzick, 276 S.W.3d at 264 (recognizing that a charging document may not be admissible during the penalty phase because it may contain “information inconsistent with the final judgment”).
Even though it was error, the court found no substantial prejudice and affirmed the 15 year enhanced sentence.

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Reference Manual on Scientific Evidence: Third Edition Available

Below is a link to a free download to the Reference Manual on Scientific Evidence: Third Edition Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Laws - Kentucky Reverses Drug Conviction Based On Confrontation Violation

This case comes to DAD thanks to the watchful eyes of Founding Member William "Bubba" Head from Georgia. In Whittle v. COMMONWEALTH of Kentucky, --- S.W.3d ----, 2011 WL 4431158 (Ky.), the defendant was charged with possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender. Prior to trial, a juror indicated he was friends with the trooper in the case. In response to how his friendship with a state trooper would affect his participation on the jury, the juror initially stated that he believed he would remain impartial. However, when asked immediately thereafter whether there was “a possibility bias might creep in,” he agreed there was that possibility. Appellant, to no surprise, emphasizes the latter response: the juror's admission that there was a “possibility” that through his friendship with the state trooper, bias in favor of the prosecution could “creep in” to his adjudication. The trial court refused to strike the juror for cause, and on appeal that ruling was affirmed. "A juror must only be struck for cause if there is a probability he will be biased in favor of one party over the other. Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958). Appellant admits that friendship with a law enforcement official does not create inherent bias in a juror toward the prosecution. See Penman v. Commonwealth, 194 S.W.3d 237, 252–53 (Ky.2006), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010). As “even law enforcement personnel are not automatically excluded from the jury panel,” it would be absurd to automatically disqualify their friends. Id. at 252."

At trial, the lab analyst failed to appear, so a supervisor read the lab report into evidence. On appeal, the court found that the admission of the evidence that the powder was cocaine violated the Confrontation Clause, despite the fact that a supervisor was there to be cross-examined. In responding to a variety of State arguments attempting to distinguish the SCOTUS cases, the court stated:

"Despite the similarities between the issue presented here and that resolved by the U.S. Supreme Court in Melendez–Diaz, the Commonwealth ventures three arguments for why its authority does not mandate reversal here: It should be distinguished; should not apply retroactively; and any finding of error it mandates here is harmless. Presumably, the Commonwealth would make the same arguments as to Bullcoming.

The best-argument is that Melendez–Diaz should be distinguished from the case at hand. The Commonwealth attempts to distinguish the “certificates of analysis” entered into evidence in Melendez–Diaz because they, unlike the lab report here, were unaccompanied by live witness testimony. It claims that because Terry Comstock testified in court to the contents of this report, and Appellant was free to cross-examine him, his Confrontation Clause rights were satisfied.

This distinction would carry water if Comstock's testimony about testing was the only evidence admitted, and not the report itself. But the report was admitted into evidence. Appellant's opportunity to cross-examine Comstock does not satisfy any potential right to be confronted with the author of the report. See Crawford, 541 U.S. at 51 (noting that in type of English prosecution Confrontation Clause was designed to prevent, “Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court”). Even if Appellant could hypothetically demonstrate that Comstock was ignorant about chemistry or a complete liar, he still could not confront the author of the report."

Thus, the cocaine related convictions were overturned. Because there was no attempt to confront anyone on the marijuana charge (i.e. it appears to have been admitted without a contest) that conviction was affirmed.
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Tuesday, September 27, 2011

DUI Law - Lost Videotape Lets Driver Win in Missouri

In Zahner v. Director of Revenue, State of Missouri, --- S.W.3d ----, 2011 WL 4025275 (Mo.App. W.D.) the defendant was arrested for DUI by an Officer Pierce. He filed for review of his suspension and was given a hearing in the trial court. According to Officer Pierce, Zahner refused to take the test. Zahner maintained that he never refused to take the test, and Zahner claims that Officer Pierce never read him the implied consent warning required by law.

At the hearing, Officer Pierce testified that any confusion over whether he had read the implied consent warning to Zahner and whether Zahner refused the test could be cleared up by a video recording of Zahner's booking at the police station. Notably, the trial court instructed the Director to produce the videotape—strongly suggesting that the trial court was not convinced that Officer Pierce's testimony alone was sufficient to convince the trial court that Zahner had been read the implied consent warning or otherwise refused the breath alcohol test. The trial court continued the hearing so that the videotape could be produced to the trial court for review. A week later, however, counsel for the Director advised the trial court that the videotape had been “destroyed as part of the post arrest routine.”

In its judgment, the trial court noted, in pertinent part:

The Court is also troubled by the officer's assurance that the recordings were available only to be advised one week later that the recordings had been “... destroyed as part of the post arrest routine.” The Court chooses not to infer that the destruction occurred after the officer's assurance.


The “policy” here alleged causes the Court to ask, “If the recordings are not preserved for evidentiary purposes then why are they made in the first instance? Are they gleaned to preserve evidence favorable to the arresting agency in support of their cases and the rest purged so as to be unavailable to a party opponent?”

Left without production of the corroborating evidence promised by Officer Pierce, the trial court weighed the credibility of the conflicting evidence and ruled in favor of Zahner, entering judgment requiring that the Director reinstate Zahner's driving privileges.

On appeal, the court wrote as follows:

"Even though the spoliation doctrine may not be applicable to the Director for the conduct of law enforcement officers, this case illustrates the practical dilemma a law enforcement agency faces when it destroys relevant evidence—i.e., the risk that the arresting officer's testimony may not be accorded the credibility that the officer (and the Director) might like for such testimony to receive.FN3

FN3. When faced with destroyed evidence—but not applying the spoliation doctrine—the trial court is free to “believe all, part or none of the officer's testimony” and is “free to consider the failure to produce the video and audio recordings in its decision.” Douglas v. Dir. of Revenue, 327 S.W.3d 555, 557 n. 3 (Mo.App.S.D .2010).

Ruling in favor of the driver, the court concluded as follows:

"The evidence in this case was hotly contested on numerous disputed facts. But, the trial court did not limit either party's opportunity to present evidence in support of their respective positions. Unlike the Prins and Baldridge cases,FN5 the trial court permitted the Director to present all evidence in her possession supporting the administrative revocation of Zahner's driving privileges and likewise permitted Zahner to present his rebuttal evidence before the trial court issued its judgment. Further, the trial court included language in its judgment that it was not inferring bad faith in the destruction of the relevant videotape. In fact, the trial court does not even mention the spoliation doctrine in its judgment.FN6 However, in the trial court's judgment, the trial court notes that it found the destruction of the videotape as “troubling” and “odd” enough such that “under the circumstances of this case,” the trial court refused to believe the Director's evidence supporting administrative revocation of Zahner's driving privileges and instead chose to believe Zahner's rebuttal evidence.FN7 This is not to say that a different trier of fact could not have concluded differently. The Director made a prima facie evidentiary showing in support of administrative license revocation, and the trial court could have chosen to accept the Director's evidence in support of the revocation of Zahner's license—with or without corroborating video evidence. But, the trial court heard conflicting evidence on the claim that Zahner refused the breath alcohol test and whether Zahner had been properly warned of the Implied Consent Law, and after weighing all of the conflicting evidence, this trier of fact chose to believe Zahner's version of events that he did not refuse the breath alcohol test and that he had not been properly advised of the Implied Consent Law. There is substantial evidence in the record to support the trial court's judgment.

EDITORS NOTE: This case explains a different tactic that can be employed in lieu of seeking sanctions. Rather than forcing a judge to make a politically difficult decision (and one that might not be upheld on appeal) convince the court to simply apply an evidentiary ruling that favors the driver.

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Friday, September 23, 2011

Federal suit claiming Naperville pads DUI arrests settled

Federal suit claiming Naperville pads DUI arrests settled

The City of Naperville has settled a federal lawsuit that alleged its police department made a false DUI arrest in order to bolster its arrests numbers for the crime.
Assistant City Attorney Mark Scarloto said the city made a $10,000 offer of judgment in the case brought by David Briddle, a Glen Ellyn man who was pulled over in May 2010 and later arrested for DUI. Briddle blew a 0.0 blood alcohol content reading at the police station, and was later released and never charged. The suit was filed against the city and the arresting officers.
The suit claimed false arrest as well as defamation, after a suburban newspaper reported Briddle was charged with DUI. The newspaper was not a part of the lawsuit.
Briddle’s attorney, Kathleen Zellner, claimed the police department made the arrest in order to pad its DUI arrest numbers, which it is recognized for annually. In 2010, Naperville ranked second in cities outside Chicago with the highest DUI arrest count.
The city paid $10,000 to settle the suit, which came as an offer of judgment, according to Scarloto. An offer of judgment in a federal case can be made by a defendant at the beginning of proceedings. If the offer ends up being higher at the end of the trial than what a judge awards to the plaintiff, the plaintiff’s attorney cannot be awarded legal fees.
Scarloto also said no disciplinary action has been taken against officers for the arrest, and that all legal procedures and rules were followed during the incident. He said the department believes the breathalyzer was not working properly that night.
According to a police report, Briddle did admit to drinking four to five beers that evening, and also had a wine glass and another drink glass in his car that he attempted to hide from officers.
“I think it turned out fairly,” Zellner said, declining to comment on specifics of the case. “We’re fine with it, otherwise we wouldn’t have settled.”

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7th Circuit Slaps Lawyer for 345-Word Sentence and Briefs Full of 'Gibberish' - News - ABA Journal

7th Circuit Slaps Lawyer for 345-Word Sentence and Briefs Full of 'Gibberish' - News - ABA Journal Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Monday, September 12, 2011

DUI Law - Indiana Driver Fights Forced Catheterization

In Lockard v. City of Lawrenceburg, Indiana, Slip Copy, 2011 WL 3902796 (S.D.Ind.) the defendant sued the City for alleging violating his civil rights when they forced a catheterization even after the defendant had submitted to a blood draw. At approximately 10:40 p.m. on March 13, 2009, Officer Miller pulled over Mr. Lockard after observing him driving at a high rate of speed and failing to stop at two stop signs. While speaking with Mr. Lockard, Officer Miller detected an odor of alcohol and observed physiological signs of intoxication, such as bloodshot eyes and slurred speech. Officer Miller began an OWI investigation, performing a series of field sobriety tests, which Mr. Lockard failed, and administering a portable breath test, which registered a reading of 0.07%. Officer Miller then asked Mr. Lockard to submit to a chemical test after advising him of Indiana's Implied Consent Law, but Mr. Lockard refused. Accordingly, Officer Miller arrested Mr. Lockard and applied for a search warrant. A search warrant was issued on March 14, 2009, at 12:10 a.m. by Magistrate Kimberly Schmaltz of the Dearborn Superior Court.

The warrant provided: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

At roughly 1:35 a.m., Officer Miller and Officer Lanning took Mr. Lockard to bed number nine in the Emergency Department; the curtains were pulled around the bed to protect Mr. Lockard's privacy; Officer Miller handcuffed Mr. Lockard to the bed; and Officer Miller and Officer Lanning grabbed Mr. Lockard's ankles in order to restrain him “so he wouldn't kick any of the nurses.” Officer Miller testified that during this time, Mr. Lockard was actively resisting the procedure. When asked if he complied with the catheterization, Mr. Lockard testified that he was “forced into complying.” Mr. Lockard told Nurse Walston that he did not want to be catheterized. Nonetheless, Nurse Walston pulled down Mr. Lockard's pants, exposing his genitalia, and prepared a sterile field by putting on sterile gloves and cleansing Mr. Lockard's penis with Betadine.

Nurse Walston subsequently prepared a straight size 16 Foley catheter for insertion by applying lubrication to the catheter. She then attempted to catheterize Mr. Lockard by beginning to insert the Foley catheter into his penis. Around this time, Mr. Lockard informed Nurse Walston that he had an enlarged prostrate. For this reason (and because she was perceiving a lack of cooperation on Mr. Lockard's part), Nurse Walston removed the Foley catheter and began preparing a Coude catheter, which is smaller and can pass through an enlarged prostrate. The procedure with the Coude catheter was completed and a urine specimen was obtained in roughly two minutes. Mr. Lockard claims that he suffered considerable pain during the procedure, describing it as “[j]ust as if somebody would take a burning hot coal and stick it up your penis” and “worse than a toochache.” Mr. Lockard was not examined following the catheterization, and he was discharged from the Dearborn County Hospital shortly after 2:00 a.m., into the custody of the Lawrenceburg police.

Mr. Lockard was taken to jail and charged with OWI, OWI Refusal, and Obstruction of Justice for refusing to consent or cooperate in the catheterization.FN5 While at jail, Mr. Lockard noticed that his urine was “cloudy.” Roughly one week after the incident, on March 20, 2009, Mr. Lockard visited Dr. Lynn Eiler for problems related to burning urination. Dr. Eiler prescribed Mr. Lockard antibiotics, which apparently cured the burning. However, Mr. Lockard's urinalysis was negative for infection. On June 15, 2009, Mr. Lockard again sought treatment for urination problems, this time with Dr. Samantha Wood. Dr. Wood referred Mr. Lockard to Mr. Michael Maggio, who, on July 6, 2009, noted that Mr. Lockard's prostate “was tender consistent with clinical prostatis.” That said, it is worth noting that Dr. Michael Koch, a physician hired by defense counsel, has reviewed the relevant evidence and opined that the catheterization at issue was “atraumatic and no urologic injury occurred to [Mr. Lockard].”

On April 3, 2009, the Indiana State Department of Toxicology received Mr. Lockard's blood and urine specimens for testing purposes. Weeks later, on April 20, 2009, Mr. Lockard entered into a plea agreement, in which he pleaded guilty to reckless driving and received a 180 day suspended sentence, 180 days of probation, a $100 .00 fine, and was assessed $165.00 in court costs. On June 23, 2009, the Department of Toxicology reported that Mr. Lockard's blood ethanol level was 54 mg/dl (or 0.05%) and his urine ethanol level was 85 mg/dl (or 0.08%). On July 6, 2009, the Department of Toxicology reported that Mr. Lockard's blood tested positive for benzodiazepines, opiates, marijuana, oxycodone, opiods, and MDMA (i.e.ecstacy). Mr. Lockard's urine tested positive for benzodiazepines, opiates, marijuana, oxycodone, and hydromorphine/hydrocodone. At his deposition, Mr. Lockard described these results as “bogus,” “trumped up,” and “fantasy land.”

Importantly, the warrant provides: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

Specifically, in November 2008, Officer Miller attended a recertification continuing education course at which Dr. Wagner, the head of the Department of Toxicology at Indiana University, told the officer that Indiana University Department of Toxicology needed samples of both urine and blood specimens when completing toxicology kits. On this point, Officer Miller testified that the Department of Toxicology does “preliminary testing on the urine to have an idea what to test for in the blood ... [t]hat way they don't use the blood sample just running queries to see what may test positive in it.” FN1 Moreover, the state kit from the Department of Toxicology contained vials for both blood and urine. Finally, Officer Miller testified that because the warrant required both blood and urine samples, he felt obligated to obtain both, stating that “[i]t's an order from the judge ... I'm complying with the judge's order.”

The District Court in considering the defendant's Motions to Dismiss discussed the law applicable:

"There are two leading Supreme Court cases addressing whether the state's intrusion into a criminal suspect's body constituted a Fourth Amendment violation. First, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the police did not violate the Fourth/Fourteenth Amendments when, with probable cause but without a warrant, they had a physician extract blood from a person suspected of drunk driving who had declined a breathalyzer test and objected to a blood test. Id. at 772.
"Of course, not all intrusions into a suspect's body are permissible under the Fourth Amendment. This point was driven home in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), where the Supreme Court ruled that the State of Virginia could not compel a criminal suspect to undergo a surgical procedure to remove a bullet lodged in his chest, even though the bullet would have been helpful to the state in prosecuting the suspect for attempted robbery. Id. at 767. To that end, Winston emphasized that “a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.” Id. at 761. Moreover, Winston applied the Schmerber balancing test, which weighs the following factors: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity; and (3) the community's interest in fairly and accurately determining guilt or innocence. Id. at 761–63.FN8 One upshot of Winston is that the “reasonableness of surgical intrusions beneath the skin depends on a case-bycase approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure.” Id. at 760.
"Clearly, in terms of intrusiveness, a case like Mr. Lockard's—involving forced catheterization—falls in between Schmerber and Winston. In fact, the Seventh Circuit has expressly recognized that removing urine through the placement of a catheter is not as intrusive as the removal of a bullet, but that it is worse than a blood draw. See Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995) (“A catheter is more intrusive than a needle but less intrusive than a scalpel, making it hard to classify the procedure under an objective reasonableness inquiry.”). Further, at the time of the incident—March 13 and14, 2009—the Seventh Circuit had addressed forced catheterizations in the context of § 1983 on two occasions."

In granting the defendant's Motions to Dismiss, the District Court found several cases holding that forced catheterizations are not an unreasonable procedure for gathering evidence (see opinion below). As such, the court found that the defendants were entitled to qualified immunity and dismissed the case:
"Beginning with the first method of showing the existence of a “clearly established” right, the Court simply cannot find that, at the time of Mr. Lockard's catheterization, a closely analogous case established that any of the individual Defendants' conduct was unconstitutional. To the contrary, Seventh Circuit precedent is clear that an involuntary catheterization does not automatically violate the Fourth Amendment as a matter of law, even in the absence of a warrant. See Sparks, 71 F.3d 648. Significantly, here, the warrant required the removal of both blood and urine samples."

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Thursday, September 08, 2011

DUI Law - Florida Rules Prosecutor Improperly Introduced Felony Conviction

"Have you ever been convicted of a Felony?" said the prosecutor, possessing a NCIC record (but no certified copy of a conviction). "I am not  sure" replied the defendant. In Barcomb v. State of Florida, the trial court held that since the prosecutor had a good faith basis to believe that the defendant had received 5 year's probation based on the NCIC report, there was no error in asking. Further, once the defendant indicated that he was unsure, the topic was dropped completely. Defendant was eventually convicted by the jury of driving while suspended from DUI.
On appeal, the Florida court reversed. It stated that "an attorney may ask a witness, “Have you ever been convicted of a felony?” If the witness answers affirmatively, he may then be asked “How many times?” He may also be asked if he has been convicted of a misdemeanor involving dishonesty, and if he answers “yes”, how many times. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), limited by Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994)."

The court continued:

“Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes.” Cummings, 412 So.2d at 439 (emphasis supplied). Accord, Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991), decision approved on other grounds, 612 So.2d 555 (Fla.1992). “The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true.” Alvarez v. State, 467 So.2d 455, 456 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985), disapproved of on other grounds, Riechmann v. State, 581 So.2d 133 (Fla.1991). Similarly, Charles Ehrhardt, Florida Evidence, section 610.6 (2007 Ed.), supports the need to have both the knowledge and a certified copy of a conviction before the questions may be asked:

Although section 90.610 speaks only to which convictions are admissible to impeach and not to the procedure that should be followed during the trial in examining a witness about prior convictions, Florida appellate decisions have established the method of using the convictions. Questions regarding past convictions should not be asked unless counsel has knowledge of a conviction and possesses a certified copy of the judgment of conviction.

The federal courts are in accord, explaining that “to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error....” See Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir.1967); cited with approval in U.S. v. Constant, 501 F.2d 1284, 1288 (5th Cir.1974). (bold in original)

Editors Note: The rule requiring a litigant to prove up any fact asserted in a question, in the face of a denial by the witness, is not new. There are many other instances where such a rule can be employed in a DUI case, and defense counel should immediately object and move for a mistrial whenever a pejorative fact is asserted in a question and is thereafter unproven.

Looking for a Top Florida DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Tuesday, September 06, 2011

DUI Law - Kansas Jury Improperly Instructed on DUI

In State of Kansas v. Stieben, --- P.3d ----, 2011 WL 3209875 (Kan.) the defendant went to jury trial for DUI. 28 minutes into deliberations, the jury sent a note to the judge:

‘Did Defendant cross the fog line before the officer turned around?’  

Contrary to the defendant's recollection and objection, the judge answered the question:

“THE COURT: That's my recollection. I have it written down. I'm going to write yes. And, with no more explanation than that." 

Trooper Hemel's actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her. 

The Supreme Court of Kansas found that the response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22–3420(3). K.S.A. 22–3420(3) explicitly allows the court to have the testimony read or exhibited to the jury, and where the parties were in disagreement about the testimony, such a direct showing to the jury would have excused the court from relying on its notes and memory. 

Second, it was held that the trial court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The Supreme Court distinguished the different functions a trial court must perform when there is a question of law and when there is a question of fact:

Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the jury additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22–3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion. 

"The second point of error relates to the respective functions of the trial court and the jury. The jury asked the trial court to resolve a question of fact, and the court complied with the jury's request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her. 

"The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] ). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). 

"An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772, 80 P.3d 1113. 

"It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government's proof possessed, the jury had the power to accept or reject it—or to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770–71, 80 P.3d 1113 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir.1988] ). 

"It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.

Concluding that the error was significant, the Supreme Court stated": "This usurpation of the jury's role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented."

A new trial was thereafter granted.

Looking for a Top Kansas DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Monday, September 05, 2011

Porn actor tests negative for HIV; filming can resume, group says

Porn actor tests negative for HIV; filming can resume, group says This is just another example of how a scientific test can be wrong - quite often due to imperceptible human error. How does this translate to DUI/DWI? Quite simply courts should reject out of hand any single breath test, reject out of hand any test not performed in compliance with Inernational Standards, and reject any test that is not reported with an accompanying uncertainty value, as recommended by the National Academy of Sciences. Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Friday, September 02, 2011

DUI Law - Florida Requires Mental State for Felony Drunk Driving

In Shelton v. Secretary, Dep't of Corrections, Slip Copy, 2011 WL 3236040 (M.D.Fla.) the United States District Court held that a Florida drug statute which expressly eliminated mens rea was unconstitutional. As noted by the court, Florida exempted itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.” DAD recommends that the entire opinion be reviewed by the reader with the question in mind being:

Is a Felony DUI based upon "any amount of drug" in the system also unconstitutional? Are other DUI statutes that carry severe penalties without mens rea also unconstitutional?

A recent DUI drugs case in Illinois, People v. Martin, is illustrative of this issue. There, a person who had mere nanograms of methamphetamine in his system (so small that it was missed during both hospital and police lab tests) was held criminally responsible for an accident involving the death of another individual, simply because these nanograms from illegal drug use days or weeks earlier still remained in his system. the Illinois Supreme Court held that there was nop need to prove impairment, or proximate cause between the drug use and the injury/accident, in order to impose a jail sentence of 3-14 years.

Here are some of the good quotes from the below opinion of the U.S. District Court:

"The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory ‘But I didn't mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.... [T]o constitute any crime there must first be a ‘vicious will.’"

* * *

"To be sure, the law recognizes the authority of government to fashion laws that punish without proof of intent, but not without severe constraints and constitutional safeguards. As the Supreme Court explained:

"[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard."

* * * *

"It cannot reasonably be asserted that the penalty for violating Florida's drug statute is “relatively small.” A violation of § 893.13(1)(a)(1), for delivery of a controlled substance as defined in Schedule I, Fla. Stat. 893.03(1), is a second degree felony, ordinarily punishable by imprisonment for up to fifteen years. Fla. Stat. § 775.082(3)(c). For habitual violent felony offenders, such as Petitioner, a violation of § 893.13(1)(a)(1) is punishable by imprisonment for up to thirty years and includes a ten-year mandatory minimum sentence. See Fla. Stat. § 775.084(1)(b). Other provisions of Florida's drug statute subject offenders to even harsher penalties, including ordinary imprisonment for thirty years for first time offenders and life imprisonment for recidivists. See, e.g., Fla. Stat. §§ 893.13(1)(b)

(delivery of more than 10 grams of a schedule I substance); § 893.13(1)(c) (delivery of cocaine within 1,000 feet of a child care facility, school, park, community center, or public recreational facility).


"No strict liability statute carrying penalties of the magnitude of Fla. Stat. § 893.13 has ever been upheld under federal law. In fact, the Supreme Court has considered a penalty of up to three years' imprisonment or a fine not exceeding $100,000.00 too harsh to impose on a strict liability offense. See Gypsum, 438 U.S. at 442. In Gypsum, the Supreme Court considered the penalties for an individual violation of the Sherman Antitrust Act and opined, “[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes.” Id. Similarly, in Staples, the Supreme Court declined to construe the National Firearms Act as a strict liability statute given its “harsh” penalty of up to ten years' imprisonment. Staples, 511 U.S. at 616. As the Supreme Court explained:

" The potentially harsh penalty attached to violation of § 5861(d)-up to 10 years' imprisonment-confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary."

* * * *

" [W]hile the Third and Sixth Circuits disagree over whether the outer bounds of due process lie at a one or two-year strict liability sentence, the State does not cite, and the Court has not located, any precedent applying federal law to sustain a penalty of fifteen years, thirty years, and/or life imprisonment for a strict liability offense. In fact, at least one Circuit Court of Appeals has expressly stated that a twenty-year strict liability provision would be unconstitutional. See United States v. Heller, 579 F.2d 990 (6th Cir.1978). In Heller, the Sixth Circuit considered an interstate extortion/kidnapping statute that was silent regarding mens rea and carried a maximum penalty of twenty years' imprisonment. Id. at 993. The Sixth Circuit held that a mens rea element must be inferred by judicial construction because the statute would otherwise violate due process. Id. at 994 (elucidating, “if Congress attempted to define a Malum prohibitum offense that placed an onerous stigma on an offender's reputation and that carried a severe penalty, the Constitution would be offended[.]”).

* * * 

“Tough Luck!” is no Answer to the Constitutional Infirmity of Fla. Stat. § 893.13

"The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence—that no individual should be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent—and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. See Staples, 511 U.S. at 619–20. Because Fla. Stat. § 893.13 imposes harsh penalties, gravely besmirches an individual's reputation, and regulates and punishes otherwise innocuous conduct without proof of knowledge or other criminal intent, the Court finds it violates the due process clause and that the statute is unconstitutional on its face. Accordingly, Petitioner's request for habeas relief on claim one is GRANTED.

Looking for a Top Florida DUI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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