Tuesday, November 22, 2011

DUI Law - Crossing the Centerline and Reasonable Suspicion for a Stop

The issue of whether crossing a lane line constitutes a basis for stopping a vehicle seems to re-raise itself multiple times each year. In State of Montana v. Cameron, --- P.3d ----, 2011 WL 5353102 (Mont.), 2011 MT 276, the Supreme Court of Montana took their view of it. Here, the defendant crossed the centerline four times in the space of five miles prior to being stopped. The trial court denied the motion to suppress, determining that while Cameron did not commit a specific traffic offense, Deputy Robinson had sufficient facts to form a particularized suspicion of wrongdoing to initiate an investigative stop. In so holding, the court relied on a prior Montana case (Weer v. State, 2010 MT 232, ¶ 7, 358 Mont. 130, 244 P.3d 311) wherein it was held, based on similar facts, that a particularized suspicion existed. Both the stop in Weer and the stop in the instant case occurred at approximately 1:00 a.m. on a Saturday morning. Moreover, just as Cameron's vehicle drifted onto the center line on four separate occasions, the officer following Weer observed Weer's vehicle “swerve twice towards the double-yellow centerline, and then, on the third instance, Weer drove onto the centerline.” Weer, ¶ 3.

On appeal, the defendant claimed that other precedent in Montana held that such conduct did not form a reasonable suspicion for stopping the vehicle. The Supreme Court responded as follows:

"Cameron maintains that the court should have relied on State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, and Morris v. State, 2001 MT 13, 304 Mont. 114, 18 P.3d 1003, because, according to Cameron, they are both factually similar to his case. However, Cameron ignores the fact that this Court recently declined to rely on Lafferty and Morris as precedent because those cases utilized flawed approaches to particularized suspicion. Flynn, ¶¶ 10, 12.

"In Lafferty, an officer stopped the defendant's vehicle after observing the vehicle cross the fog line on the right side of the highway twice and drive on the fog line once. Lafferty, ¶ 4. We concluded in Lafferty that the officer lacked particularized suspicion based in part on the defendant's testimony that she merely crossed the fog line as she observed the officer's patrol car come up behind her. Lafferty, ¶ 17. In Morris, an officer stopped the defendant's vehicle after observing the vehicle drift across the line separating the eastbound lanes of traffic. The officer then observed the vehicle drift and touch the fog line on the other side of the lane. Morris, ¶ 2. We concluded in Morris that the officer lacked particularized suspicion based in part on the defendant's testimony that the road was rutted, and that his usual practice was to attempt to avoid potholes on the road. Morris ¶ 10.

"In declining to rely on Lafferty and Morris, we pointed out in Flynn that when we first adopted the particularized suspicion standard for vehicular stops, we recognized that the inquiry turned on what the officer knew, observed, inferred, and ultimately suspected, not what the defendant later testified to. Flynn, ¶ 12 (citing State v. Gopher, 193 Mont. 189, 193–94, 631 P.2d 293, 296 (1981)). To that end, we stated in Flynn that

[a] defendant's subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion. The particularized suspicion inquiry is a fact based assessment of the objective quantity, content and reliability of information available to the officer. An officer in the field need not consider every possible innocent explanation or legal exception before concluding that particularized suspicion exists.

Flynn, 1 (internal citations and quotation marks omitted). Thus, contrary to Cameron's contentions, we conclude that Lafferty and Morris cannot be applied here, and the District Court was correct not to rely on those cases, but to rely on Weer instead.

Thus, the court found that even though crossing the center line was not a violation of law per se, it did constitute sufficient reasonable suspicion to stop the vehicle for possible impaired driving:

"In the instant case, Deputy Robinson testified at the hearing on Cameron's motion to suppress that in his ten years as a deputy sheriff, he has investigated around 175 DUIs. He also testified that the majority of the DUIs that he has investigated occurred on Friday and Saturday nights between the hours of 10:00 p.m. and 3:00 a.m. “which are high times for driving while under the influence of alcohol.” Deputy Robinson stated that when he saw Cameron's vehicle touch the centerline the first time, he did not think it suspicious, but when the vehicle drifted towards the center line a second and third time and stayed on the centerline for 100 yards, he considered the actions dangerous since there were other cars on the road at the time.

Editor's Note: if there is one common theme that can be drawn from the plethora of cases on the subject of stops, lane lines and weaving, it appears to be as follows: While a brief momentary crossing of a lane line may not be a violation of the improper lane usage law (when there is no danger to others on the roadway) and hence may not form a reasonable basis for a vehicle stop, continuous weaving (taken in conjunction with other facts such as time of day) can be a stand-alone basis to stop a vehicle as reasonable suspicion of impaired driving.

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!

DUI Law - Ohio Suppresses Blood Test From Hospital

Thank you to Regent Troy McKinney for delivering this gem to DAD last week. When does an arrest occur following alleged drunk driver being taken to the hospital due to crash injuries? Last week DAD discussed a Georgia case of Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.) where, faced with a similar set of facts, the court found an arrest had occurred prior to a blood draw (thus making the results admissible in court). In State of Ohio v. Rawnsley Slip Copy, 2011 WL 5319863 (Ohio App. 2 Dist.), 2011 -Ohio- 5696, a trial court suppressed a blood test where the driver was taken to a hospital following a two-vehicle crash.

The pertinent facts and findings were stated as follows:

“The ‘Consequences of Test and Refusal’ language informed Ms. Rawnsley that she was under arrest for an OVI violation and further informed her of the consequences if she refused to take a blood alcohol test. The reality, however, is that when Ms. Rawnsley was read the BMV 2255 language she was not under arrest. Officer Fosnight, again very forthrightly, was adamant on this issue at both the February 3 and February 25 hearings. It seems that a primary reason Ms. Rawnsley was not arrested is the Huber Heights Police Department's practice of not arresting an individual who is being admitted to the hospital. This practice is driven, it seems, by the possibility that Huber Heights will incur some type of financial responsibility for an arrestee's medical care. Ms. Rawnsley, upon being read the BMV 2255 language, agreed to a blood draw."

The appellate court, agreeing with the trial court that the defendant was not in fact under arrest prior to consenting to the draw, found that state law was violated and the result was inadmissible under implied consent. The appellate court then had to deal with the State's alternate argument, namely that there was probable cause and exigent circumstances for the blood draw, so therefore the results were still admissible. 

Holding that there was not justification for ignoring the requirement of a warrant , the opinion reads as follows:

The general problem of stale evidence in connection with blood alcohol concentrations, addressed in Schmerber v. California, has been codified in the Ohio Revised Code. For a test result to be admissible, the blood draw must take place within three hours of the alleged violation. R.C. 4511.19(D)(1)(b).

"With regard to exigent circumstances, the trial court concluded:

“Officer Fosnight, as he forthrightly admitted, did not consider making any effort to obtain a warrant. It seems to this court that the Huber Heights Police, in order to establish an exigent circumstance, had the obligation, particularly since the collision occurred not in the early morning hours but at approximately 10:55 p.m., to draft a probable cause affidavit and attempt to reach a judge, or to at least explain why this was not practical. If, after a good faith effort, such an attempt was unavailing, this court, without hesitation, would conclude that exigent circumstances existed. However, without such an attempt, or any explanation concerning why such an attempt was not practical, this court cannot conclude that exigent circumstances existed. FN$

“FN 4. The case of State v. Hollowell [, Montgomery App. No. 24010,] 2011–Ohio–1130 provides an example where the Montgomery County Sheriff's Department, using two deputies, were able to obtain a warrant to obtain a blood draw within the three hour period prescribed by O.R.C. 4511.19(D)(1)(b).”

"Essentially, the trial court found that the State had failed in its burden to prove the existence of exigent circumstances justifying a warrantless search. The evidence in the record supports the trial court's finding that Officer Fosnight responded to the scene within one minute of the collision. He was promptly made aware of circumstances establishing probable cause to believe that Rawnsley, the sole occupant of the front portion of one of the vehicles involved in the collision, was under the influence. Given these facts, we cannot say that the trial court's finding that the State failed in its burden of proving the existence of exigent circumstances is against the manifest weight of the evidence."

Editor's Note: The Rawnsley case is IMHO valuable on two points as described above. First, that the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so, and secondly, that exigent circumstances does not automatically exist merely because blood alcohol dissipates over time.

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!

DUI Law - Juror Dating Fellow Prosecutor No Big Whoop Says Texas

In Hammett v. State of Texas, Not Reported in S.W.3d, 2011 WL 5189109 (Tex.App.-El Paso), the defendant was convicted of driving while intoxicated and was sentenced to 180 days in jail, probated for 18 months. On appeal, Hammett asserted that he was denied a fair trial because the foreperson on the jury failed to disclose that she was dating a prosecutor. On appeal, the court affirmed the conviction:

"The record does not establish that the foreperson withheld any information. She truthfully stated both on her questionnaire and during voir dire that she knew a particular prosecutor. The juror questionnaire is not in the record, but there is nothing to indicate that the questionnaire asked specific questions about the nature of a prospective juror's relationship with anyone, and even if it did, counsel still had an obligation to follow-up with oral questions. Hammett's trial counsel chose not to ask about the nature of the foreperson's relationship with the prosecutor. We also note that the venire was sworn in by the judge before voir dire, and we take judicial notice that the oath requires prospective jurors to answer truthfully any questions propounded to them. It does not impose a duty on the prospective jurors to volunteer information."

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!

DUI law - Confrontation Clause Doesnt Apply to Calibration Breath Records

In Commonwealth v. Dyarman, --- A.3d ----, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245 the court was asked to decide whether the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause. They ruled that the logs did not so violate.

"In this matter, unlike in Barton–Martin, the individual who actually performed Appellant's BAC analysis (Officer Gsell) testified as to the accuracy of that test and as to the specific results received with regard to Appellant. Nevertheless, Appellant claims that admission of the calibration logs for the device used to determine Appellant's BAC, without the testimony of the person who performed the actual calibration, violated her right under the confrontation clause. Appellant's Brief at 10–15. Appellant argues that the calibration logs are testimonial in nature, such that application of Melendez–Diaz and Barton–Martin should prohibit their admission through the business records exception of the hearsay rule. Id. at 13. We disagree."

"Here, the calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant's BAC; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez–Diaz, and Barton–Martin."

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!

DUI Law - Anonymous Call Insufficient Under Community Caretaking

In State v. Deccio, 136 Idaho 442, 34 P.3d 1125 the court had an opportunity to determine what affect an anonymous call would have on the validity of a seizure under the community caretaking doctrine. While the majority of courts have found an anonymous call of drunk driving, standing alone, to lack reasonable suspicion of a crime for purposes of stopping a vehicle, very few have addressed the community caretaking doctrine in this context.

In Deccio, a woman claiming to be the defendant's wife's best friend, called the police and claimed that the defendant was drunk, suicidal and driving. After attempts to locate Deccio at his home and on the roadways in Moscow proved unsuccessful, the Moscow police dispatcher notified the Latah County sheriff's office that Moscow police had received an anonymous call that Deccio was suicidal and intoxicated. A Latah County sheriff's officer spotted a vehicle matching the description of Deccio's vehicle driving southbound on Highway 95 toward Lewiston and began following the vehicle. The officer continued to follow the vehicle after it left Highway 95 and drove into the town of Genesee. The officer followed the vehicle for over a mile as it made several turns in Genesee but the officer did not observe any law violations or erratic driving. The officer eventually stopped the vehicle, believing that he needed to check the driver's welfare due to the report he received from the Moscow police dispatch. When the officer contacted the driver, Deccio, the officer smelled an odor of alcohol. Deccio was subsequently arrested for driving under the influence (DUI) after failing field sobriety tests. A bottle of vodka was found under the seat of Deccio's vehicle but no weapon was found.

The Idaho court stated that the same test used to deal with anonymous tips in the criminal context should be used in the community caretaking field:

"The present case involves the community caretaking function based on an anonymous tip. Although most cases involving anonymous tips center on the issue of reasonable, articulable suspicion rather than the community caretaking function, in each instance the reasonableness of a stop is analyzed under a totality of the circumstances. In analyzing the totality of the circumstances here, the threshold question is the weight, if any, the anonymous information concerning Deccio's condition should be given by the trier of fact. In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a dispatcher's report may be based upon a variety of sources, including a completely anonymous tip. However, an anonymous tip standing alone is generally not enough to justify a stop because an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity. State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336 (Ct.App.2000). The information from an anonymous tip may provide justification for a stop when the information it contains bears sufficient indicia of reliability or when significant aspects of the tip are sufficiently corroborated by independent police observations. State v. Hankey, 134 Idaho 844, 847–48, 11 P.3d 40, 43–44 (2000); Larson, 135 Idaho at 101, 15 P.3d at 336. See also State v. Wilson, 136 Idaho 270, 32 P.3d 164 (Ct.App.2001)."

Holding that the stop here was illegal, the court stated:

"Here, the magistrate held that the anonymous tip, standing alone, did not bear sufficient indicia of reliability justifying the stop of Deccio's vehicle. We have been shown no error in the magistrate's determination. The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deccio's wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deccio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deccio and what hearsay information she obtained from Deccio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deccio would not be home if officers were to check did not in itself make the tip more reliable.

"The magistrate also found that, aside from the officer's observations, there was no significant confirmation of the anonymous female's information. The only information that was corroborated was that a white Subaru was registered to Deccio, that Deccio lived on Concord Street in Moscow, and that Deccio was not at home at the time officers went there. We conclude, as did the magistrate, that the anonymous tip in this case did not bear sufficient indicia of reliability justifying **1129 *446 the stop of Deccio's vehicle on the belief that Deccio was in need of immediate assistance. Thus, we uphold the magistrate's determination that the anonymous tip was unreliable and that it did not provide a reasonable basis for the officer to stop Deccio's vehicle under the community caretaking function."

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!

DWI Law: Proximate Cause and Multiple Drunk Drivers

In a Vehicular Homicide case, or a Great Bodily Harm DUI, when the other driver has also been drinking is that evidence admissible? DAD has covered this issue with varying results. In State of Minnesota v. Nelson, --- N.W.2d ----, 2011 WL 5829025 (Minn.App.) the defendant was charged with vehicular homicide. Both the defendant's vehicle and the victim (Carlson) vehicle drove off the same curve in the road. The defendant struck and killed the victim there and then fled the scene. Four hours late the defendant/appellant's family reported the accident and took him to the hospital for examination. Becker County Sheriff Deputy Bruce Anderson met appellant at the hospital, noticed that appellant showed signs of intoxication, and read him the implied consent advisory. Appellant's blood alcohol concentration was tested at .056 and .058. The victim's BAC was measured as 0.15.

The district court granted the state's motion to exclude any evidence of Carlson's alcohol consumption; although Carlson's BAC was measured at .15 following the accident and witnesses had told police that Carlson was so inebriated earlier in the evening that friends had convinced him to leave his vehicle at the bar.

The appeals court held that in a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the district court abuses its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption. Discussing the concept of proximate cause, the court stated:

"For a party's negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant's conduct was a substantial factor in bringing about the injury."

* * *
"But there can be more than one cause of a resulting harm, and the negligence of a second party may affect the determination of proximate cause as to a first party's negligence. “An intervening, superseding act breaks the chain of causation set in operation by a defendant's negligence, thereby insulating his negligence as a direct cause of the injury.” Hofer, 614 N.W.2d at 737 (quotation omitted). “A superseding, intervening cause of harm is generally the act of a third party occurring after a defendant's negligent act and operating as an independent force to produce the injury.” Id. (quotation omitted). Or, “[w]hen the acts or omissions of two or more persons combine to bring about a harmful result, those acts or omissions are concurring causes of the harm.” Id. In some cases, the negligence of the parties is so intertwined that they “combine to bring about a harmful result[.]” Id. Thus, when “the negligence of each participant is so related to the negligence of the other” and the result of their conduct was foreseeable, one of the participants may be charged with the causal negligence. C.P.W., 601 N.W.2d at 208 (rejecting claim that a juvenile driver who initiated a car chase was not culpable for the death of several others whose vehicles were struck by the vehicle being chased, after that vehicle entered an intersection on a red light, even though the juvenile driver was able to stop before the intersection); Hofer, 614 N.W.2d at 738 (ruling that the combined acts of a negligent driver entering an intersection on a red light and a pedestrian running in front of a bus while a “Don't walk” signal was displayed, followed a natural sequence that resulted in the pedestrian's death, which “was a foreseeable consequence of each act of negligence” that did not excuse the driver's negligence); see also State v. Munnell, 344 N.W.2d 883, 887 (Minn.App.1984) (ruling that contributory negligence of victim was not a defense to a charge of criminal vehicular operation in an accident involving a victim who was lying drunk on a county highway when struck by a vehicle that had crossed the center line); Ramirez v. Miska, 304 Minn. 4, 7, 228 N.W.2d 871, 873 (1975) (stating that if two parties are negligent in causing a collision, this “does not compel a finding that the negligence of each is a proximate cause”)."

It also held that, when the intertwined negligent conduct of two motor vehicle drivers results in charges of criminal vehicular homicide being brought against one driver, the district court's jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver. The appeals court wrote:

"With regard to the criminal vehicular homicide charges, the district court instructed the jury that an element of each charged offense was that “the defendant caused the death of Christopher Wade Carlson.” Appellant's attorney had proposed to further define “causation” by including the following statement: “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Appellant's attorney argued that a more complete definition or explanation of negligence was necessary in this case. We agree."

"The causation instruction given by the court was accurate, but it did not assist the jury in deciding whether appellant was criminally culpable for causing the accident. The jury necessarily had to decide the conduct of appellant and Carlson in relation to each other in order to determine whether appellant would be held criminally responsible for the death. As noted earlier, seconds before impact, appellant's vehicle approached Carlson's ATV from the rear at a high rate of speed, but Carlson's ATV also veered from its path and into appellant's path moments before impact. On these facts, the jury needed to be instructed on the parties' fault as it related to whose conduct played a substantial factor in causing the accident. Because the caselaw defines causation in criminal vehicular homicide or operation cases as “something that played a substantial part in bringing about the death or injury,” Jaworsky, 505 N.W.2d at 643, appellant was entitled to have this definition included in the jury instructions. Further, given the evidence on the victim's conduct of veering off the highway and into the path of appellant's vehicle just 50 feet before the collision, the victim's negligence could have been an intervening, superseding cause that necessitated a jury instruction on that aspect of causation. Without being properly instructed here, the causation instruction that the jury received did not fairly or adequately present the issue of causation to the jury. See Koppi, 798 N.W.2d at 364."

Based upon the above, the appellate court reversed the conviction and remanded for a trial consistent with its ruling.

EDITOR's Note: Other states do not use the 'substantial factor' phrase in their definitions of proximate cause, and such a phrase may have affected the appellate court's decision about 'intertwining causes'.

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, November 14, 2011

DUI Law - Georgia Decides Whether Arrest Occurred Prior to Test

Often, a quandary arises when a person is involved in a motor vehicle accident, and transported to the hospital. Is that person under arrest when the police officer interacts with them there? To get the blood into evidence, the answer must be yes. To get an admission into evidence without Miranda, the answer must be no. Hence, the old shell game begins. 

In Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.), Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford's condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.

When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford's breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford's silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.

The charges, however, were not officially place until months later. 

Because Georgia requires an arrest that precedes the implied consent warnings, even for admissibility of the result for the criminal trial, the defendant claimed that he was not arrested prior to the blood draw, and he sought suppression. Disagreeing the appellate court wrote: 

"It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ “ Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380 (2005), quoting Clement v. State, 226 Ga. 66, 67(2), 172 S.E.2d 600 (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga.App. at 244, 593 S.E.2d 707 (affirming suppression of defendant's statement on the basis of trial court's factual finding that defendant's “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717, 620 S.E.2d 380 (reversing trial court's finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”). 2. In light of the above, we need not determine whether Buford's injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713(1), 620 S.E.2d 380; Gilliam v. State, 295 Ga.App. 358, 671 S.E.2d 859 (2008)."

The trial court's denial of the motion to suppress was affirmed.

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!

Court mismatch makes OUI justice elusive

Court mismatch makes OUI justice elusive 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, November 10, 2011

DWI Laws - Texas Dismisses Case Based on Illegal Stop

In State of Texas v. Kerwick, --- S.W.3d ----, 2011 WL 5247890 (Tex.App.-Fort Worth) Officer Jeffrey J. Bradford was dispatched to a bar on North Main Street in Fort Worth in response to a call about several people fighting in front of the bar. When Officer Bradford arrived at the bar, several people were standing outside in front of the bar. Officer Bradford made contact with the person he believed to be the person who had called the police. The person was the owner of a damaged vehicle. That person pointed to a vehicle parked on the street across from the bar and said, “There they are right there. There they are, there they are.” Officer Bradford walked over to the vehicle as it started moving northbound on the street and stopped the vehicle by yelling at the driver, ordering her to stop. Officer Bradford testified that he “believed that they—at that point they were involved in an offense.”

In affirming the granting of a motion to suppress, the appeals court wrote:

"In short, the record before us simply contains no facts to enable either the trial court or this court to objectively evaluate either Officer Bradford's belief that the person who said, “There they are right there. There they are, there they are,” was the person who had called the police or his belief that Appellee was “involved in an offense ... [—a]n assault, criminal mischief, or both.” No facts exist in the record to enable the trial court or this court to assess whether either of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158 S.W.3d at 493. Without specific, articulable facts, a court has no means of assessing whether an officer's opinion is objectively reasonable. Id. Without specific, articuable facts, a detention cannot be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular seizure in light of the particular circumstances. Id. And when such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. Allowing a police officer's opinion to suffice in specific facts' stead eviscerates Terry's reasonable suspicion protection. Id."

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!

Tuesday, November 08, 2011

DUII Laws - Ambien Defense Rejected Under Strict liability in Oregon

Today's case was brought to DAD's attention by Oregon NCDD member Bruce Tarbox. In State of Oregon v. Newman, --- P.3d ----, 2011 WL 5176141 (Or.App.), the court was called upon to decide whether the defense of sleep-driving could be raised by the defendant. 

The facts on appeal were essentially as follows. Defendant met his friends for dinner one evening and, anticipating that he would drink alcohol at dinner, left his car parked by his apartment and walked to the restaurant. Thereafter, defendant's friends drove him home, and he went to sleep. Later that evening, a police officer followed defendant's car and observed defendant make a left-hand turn without signaling or stopping, run a red light, and drive down the middle of a street, straddling the two traffic lanes. The officer then activated his overhead lights to initiate a traffic stop and, in response, defendant pulled into a parking lot. The officer approached defendant's car, smelled a strong odor of alcohol, and observed defendant's bloodshot, watery eyes and slow, slurred speech. Defendant agreed to perform field sobriety tests and, after failing them, was taken into custody. At the police station, defendant consented to a Breathalyzer test, which revealed that he had a blood alcohol level of 0.15 percent.

At trial, defendant admitted that he was intoxicated but sought to present evidence that he did not consciously drive or control his car. He testified that he was not aware of leaving his apartment, going to his car, starting the car, or driving it. According to defendant, after he went to sleep that evening, the next thing he was aware of was the police car lights flashing behind him. Defendant argued that his evidence was admissible pursuant to ORS 161.085 and 161.095 because, under those statutes, criminal liability requires a voluntary act. Additionally, defendant asserted a due process right to present his sleep-driving defense.FN1 The trial court excluded his proffered evidence on the ground that it was not relevant because DUII is a strict liability offense.

The defendant argued on appeal that, even though the Oregon Supreme Court had held that the state need not prove that the defendant intentionally became intoxicated, that the law still required that the state prove that the driving element was intentional.

Reiterating a quote from prior caselaw and rejecting that position, the appeals court wrote:

“[t]he offense of DUII does not nor has it ever required proof of a culpable mental state. The statute as enacted in 1917, Or Laws 1917, ch 29, § 1, has been amended several times. Never in the 70–year history of this state's legislation has one word been written in any DUII statute to require such proof. Never has this court interpreted any DUII statute to require such proof. We have not found where any witness appearing before any legislative committee considering DUII statutes asserted that a culpable mental state would be required for any element of the offense.

“DUII is an offense defined outside the Oregon Criminal Code, and the legislative history, in the sense that no one ever considered such a procedural stumbling block, indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any of its material elements.”

The defense also cleverly argued another reason why intent was required under the law:

"(1) The elements of a greater crime subsume all elements of a lesser-included crime, State v. Moroney, 289 Or. 597, 616 P.2d 471 (1980); (2) attempted DUII is a lesser-included offense of DUII, State v. Baty, 243 Or.App. 77, 259 P.3d 98 (2011); (3) attempt requires that a person “intentionally [engage] in conduct which constitutes a substantial step toward commission of the crime,” ORS 161.405(1); (4) therefore, the greater crime of DUII must subsume the intentional element of attempted DUII, and DUII must include a culpable mental state.

Calling the defense' argument a 'clever syllogism', the court also rejected this theory:

"If defendant's construction of ORS 136.465 were correct, an attempt crime under ORS 161.405(1) would import an intentional mental state into every crime, even where the legislature has expressly provided for a different mental state. We presume that the legislature would not have intended such an absurd result."

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, November 07, 2011

DUI Laws - Louisiana Increases Sentence on Appeal

'Sometimes you can't win for losing', said someone personally unknown to me. But that unknown person may have come across Jeffrey Deville at another time past. In the case of State of Louisiana v. Deville--- So.3d ----, 2011 WL 4580591 (La.App. 3 Cir.), 2011-88 (La.App. 3 Cir. 10/5/11), the defendant entered a blind plea of guilty to two counts of vehicular homicide. The trial court sentenced him to thirty years at hard labor on each count, the sentences to run concurrently to each other and consecutively to the sentence he was already serving. The first five years of the sentences were ordered to be served without benefit of probation, parole, or suspension of sentence. Based on the fact of the prior unrelated felony, he was required to do at least one-half of the actual sentence, i.e. fifteen years before he could be actually paroled. Deville appealed, pointing to at least 25 cases where similar conduct had resulted in sentences one-half to one-third as long in jail time.

On appeal, the appellate court noted that in previous cases, the Louisiana Supreme Court had addressed the legislature's continuing reassessment of vehicular homicide:

"When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La. R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S. 14:32.1. See, e.g., State v. Pelt, 448 So.2d 1294 (La.1984); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Wilcoxon, 26,126 (La.App. 2nd Cir.6/22/94), 639 So.2d 385, writ denied, 94–1961 (La.12/16/94), 648 So.2d 386; State v. Wry, 591 So.2d 774 (La.App. 2nd Cir.1991); State v. Yates, 574 So.2d 566 (La.App. 3rd Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Rock, 571 So.2d 908 (La.App. 5th Cir.1990), writ denied, 577 So.2d 49 (La.1991); State v. Williams, 546 So.2d 494 (La.App. 4th Cir.1989), writ denied, 553 So.2d 470 (La .1989).

"Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion.”).

"The broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” [ State v.] Telsee, 425 So.2d [1251 (La.1983) ] at 1254, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Id.

Noting that the defendant in this case had at least four different illegal drugs in his system, his limited education, has three prior felonies, etc., the appeals court found the sentence of 30 years hard labor not too excessive.

But, they didn't stop there. Instead, they found the sentence illegally lenient. Since the trial court failed to add on the statutory fines and counseling, the case was remanded to add the counseling and statutory fines. Yikes.

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!

DUI Appeal - 10th Circuit Discusses Informant Stop and PC for DUI Arrest

In U.S. v. Chavez, --- F.3d ----, 2011 WL 4925884 (C.A.10 (N.M.)), the Defendant–Appellant Christopher Roy Chavez was arrested during a traffic stop for driving while intoxicated (“DWI”). After his arrest, the police impounded the vehicle he was driving. They subsequently obtained a warrant to search the vehicle for illegal contraband. During the ensuing search, officers found approximately one-third of a pound of cocaine. Mr. Chavez was indicted for one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U .S.C. § 841(b)(1)(C). He filed a motion to suppress the cocaine, arguing it was obtained in violation of the Fourth Amendment. The facts were as follows:

On April 11, 2008, at approximately 2 a.m., a dispatcher at the Alamogordo, New Mexico Police Department received a 911 call from a Wal–Mart employee (the “caller” or “employee”) reporting a disturbance in the store's parking lot. The caller stated that the individuals causing the disturbance were located in or around a white Cadillac and a black pickup truck, and that the driver of the Cadillac was potentially intoxicated. The caller provided the dispatcher with license plate numbers for the Cadillac and black pickup truck. The dispatcher sent Officers David McColley and Kenneth Funk to the parking lot.

Approximately three minutes after dispatch received the 911 call, Officer McColley arrived at the parking lot. He saw an individual standing outside of the Wal–Mart's doors, pointing in the direction of a white Cadillac and a black pickup truck.

Officer McColley stopped the Cadillac, exited his vehicle, and approached the Cadillac's driver. He explained to the driver that he had received a report of a disturbance in the parking lot. The driver, Christopher Roy Chavez, denied causing a disturbance and stated that his passenger had been shopping in the Wal–Mart. Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery, and he detected an odor of alcohol emanating from Mr. Chavez. He asked Mr. Chavez if he had been drinking; Mr. Chavez stated he had not.

While Officer McColley was talking to Mr. Chavez, Officer Funk arrived at the parking lot. He was immediately flagged down by the man standing outside of the Wal–Mart. The man identified himself as the employee who placed the 911 call. The employee told Officer Funk that he observed the Cadillac pull into a parking space immediately adjacent to the black pickup truck. He further stated that he had watched the driver of the truck get into the passenger side of the Cadillac. Finally, he stated that he saw the driver of the Cadillac urinating in the parking lot and that a few minutes later he saw the occupants of the Cadillac throw Taco Bell wrappers and shot-sized liquor bottles into the parking lot. After speaking with the caller, Officer Funk drove his patrol car to where Officer McColley had stopped Mr. Chavez.

As Officer Funk arrived at the scene of the stop, Officer McColley asked Mr. Chavez to step out of the Cadillac and to give him his driver's license and proof of insurance. Mr. Chavez did not have a copy of his driver's license, but provided a New Mexico identification card containing his name. He told Officer McColley that the Cadillac belonged to a friend named David Aguirre. Officer McColley asked why the Cadillac's title stated that it was owned by a man named Manuel Renterria. Mr. Chavez was unable to provide a clear answer.

Officer McColley again asked Mr. Chavez if he had been drinking. This time Mr. Chavez stated he had consumed a couple of beers. Officer McColley conducted three field sobriety tests on Mr. Chavez. Based on his observations during the tests, Officer McColley “was certain that Mr. Chavez was intoxicated.” United States v. Chavez, No. 09–3086RB, Order Denying Motion to Suppress, at 6 (D.N .M. Nov. 17, 2009) (“Chavez I”).

After conferring with Officer Funk, Officer McColley asked Mr. Chavez to identify the passenger in the Cadillac. Mr. Chavez stated that the passenger's name was John, but was unable to provide John's exact address. Officer McColley then asked Mr. Chavez if he had any contraband in the Cadillac. Mr. Chavez responded, “[N]o, you can look around.” Id. As Officer McColley spoke to Mr. Chavez, police dispatchers informed him that Mr. Chavez's driver's license had expired. Upon learning this information, Officer McColley informed Mr. Chavez that he was “very close” and a “half a second” from arresting him. Id. at 7. Throughout this encounter, Mr. Chavez appeared agitated and nervous and his speech was slurred.

Approximately twenty minutes after the stop began, Officer McColley asked Mr. Chavez if he would consent to a search of the Cadillac. Mr. Chavez declined, stating he was not the owner of the vehicle and that he did not want to be responsible for it. Officer McColley informed Mr. Chavez that he could consent to a search of the vehicle because he was driving it. Mr. Chavez responded that the officers had already searched the vehicle with their flashlights. Officer McColley asked Mr. Chavez if he needed to call a dog to conduct a search. Mr. Chavez responded, “[I]f that's what they needed to do.” Id. at 8. At that point, Mr. Chavez appeared nervous and accused the officers of harassing him. Officer McColley again warned Mr. Chavez that he was very close to getting arrested for DWI.

Twenty-seven minutes after initiating the stop, Officer McColley radioed dispatch and requested that a drug-sniffing canine be sent to the scene. Officer McColley informed Mr. Chavez that he had initially stopped him because he was drinking and that he had called a drug dog because he suspected there might be “more” in the Cadillac. Id. at 9. Mr. Chavez stated that he was not worried because the Cadillac was not his vehicle. While he waited for the canine to arrive, Officer McColley continued questioning Mr. Chavez about the ownership of the vehicle and his whereabouts before the stop.

Approximately fifty minutes after Officer McColley stopped Mr. Chavez, a drug-sniffing canine arrived at the parking lot. The dog did not detect any odors of illegal contraband outside of the Cadillac. An officer asked Mr. Chavez if the dog could search the passenger compartment of the vehicle. Mr. Chavez stated that “it was okay to run the dog inside the vehicle.” Id. at 11. While inside the passenger compartment, the dog alerted to a seam in the backseat. The officers showed Mr. Chavez the location where the dog had alerted and asked him for permission to search it. Mr. Chavez stated that “it was fine.” Id. The officers searched the backseat and found no contraband.

The officers then asked Mr. Chavez for consent to search the Cadillac's trunk. Mr. Chavez became increasingly hostile and argumentative and refused to give his consent. Officer McColley placed Mr. Chavez under arrest for DWI.

After Mr. Chavez was arrested, officers drove the Cadillac to the police station and stored the vehicle in a controlled bay. The next morning, officers conducted an exterior search of the Cadillac using a drug-sniffing dog. The dog alerted to the trunk of the vehicle, and the officers obtained a warrant to search that area. During the ensuing search, officers found approximately one-third of a pound of cocaine and one-third of a pound of marijuana in the Cadillac's trunk.

The district court denied the motion. Mr. Chavez entered a conditional guilty plea. Mr. Chavez challenged the district court's denial of his motion to suppress on four grounds. He first argues the police lacked reasonable suspicion to stop him. Second, he contends the police lacked probable cause to arrest him for DWI. Third, he claims the scope of his detention was unreasonable. Fourth, he asserts the consent he gave to search the Cadillac “was insufficient to attenuate the illegal stop and detention.”

The appeals court discussed the law regarding the validity of the stop as follows:

"The Supreme Court has recognized that “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quotation omitted). Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity” (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant. See, e.g., United States v. Copening, 506 F.3d 1241, 1247 (10th Cir.2007) (considering these factors and concluding that information from an informant was sufficiently reliable to establish reasonable suspicion); United States v. Brown, 496 F.3d 1070, 1078–79 (10th Cir.2007) (same).

Holding that the stop was lawful, the court wrote:

"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” See J.L., 529 U.S. at 270 (quotation omitted)."

Regarding probable cause to arrest for DWI, Mr. Chavez argued that “after 20 minutes without arresting [him] for DWI, the officers changed the detention from a ‘disturbance’ investigation into a drug investigation.” Aplt. Br., at 21. He contends this extended detention constituted an illegal arrest. The court responded as follows:

Mr. Chavez is correct that “[i]f a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause.” Rodriguez–Rodriguez, 550 F.3d at 1227 (quotations omitted). Here, however, we need not determine whether Officer McColley expanded the scope of the stop twenty minutes after he initiated it because we conclude he had probable cause to arrest Mr. Chavez for DWI within nine minutes of initiating the stop.

* * *

Although probable cause to arrest is not necessary to justify the extension of an investigative detention, it is sufficient. See Rodriguez–Rodriguez, 550 F.3d at 1226. Accordingly, even if Officer McColley extended the scope of the initial traffic stop by detaining Mr. Chavez while waiting for a drug dog to arrive, such an extension would not violate the Fourth Amendment if Officer McColley had probable cause to arrest Mr. Chavez. See id.; see also United States v. Sturgis, 238 F.3d 956, 959 (8th Cir.2001) (“Because the agents could have arrested [the defendant], they didn't violate the Constitution by detaining [the defendant] for two hours while awaiting the arrival of the canine unit.”); cf. United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.1998) (“[D]etention of the driver at the scene to accomplish a canine sniff is generally reasonable where the driver is already under lawful arrest.”).

* * *

The district court concluded that “[w]ithin nine minutes of [initiating] the stop, Officer McColley had probable cause to arrest Mr. Chavez for [DWI].” Chavez I, at 18–19. The court based this conclusion on several factual findings. First, immediately upon contacting Mr. Chavez, “Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery and he detected the odor of alcohol emanating from Mr. Chavez.” Id. at 3. Second, Mr. Chavez admitted to Officer McColley that “he had a couple of beers” prior to the stop. Id. at 5. Third, Officer McColley performed three field sobriety tests on Mr. Chavez and was “certain that Mr. Chavez was intoxicated” based on his observations during the tests. Id. at 6, 18.

We agree with the district court that, based on the totality of the circumstances, these facts provided probable cause for Officer McColley to arrest Mr. Chavez for DWI. See, e.g., Schmerber v. California, 384 U.S. 757, 768–69, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (probable cause to arrest existed when driver's breath smelled from alcohol and the driver's eyes were bloodshot, watery, and glassy); Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.2007) (holding that an officer had probable cause to arrest a driver for DUI where the officer “observed several indicia of [the driver's] alcohol consumption[,] including a moderate odor of alcohol, pinkish and watery eyes, a flushed face, unusually slow and deliberate speech, and slow hand movements” and the driver “refused to participate in a field sobriety test”); see also Sherbrooke v. City of Pelican Rapids, 577 F.3d 984, 987–88 (8th Cir.2009) (holding that an officer had probable cause to arrest for DWI after he detected alcohol on the driver's breath, the driver admitted to drinking, and the driver failed one of three field sobriety tests)."

The court also ruled against the defendant on the remaining issues, and the defendants conviction was affirmed in total.

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!

DWI Law - Proving Venue as an Element of the DUI Offense in Mississippi

In most states, a defendant has a right to a trial in the county where the offense occurred under their state's constitution (venue). Often, this right extends into an obligation for the prosecution to prove (as an element) venue for the offense beyond a reasonable doubt. Such is true in Mississippi. In Bonds v. State of Mississippi, the defendant appealed his conviction, alleging that the prosecution failed to prove venue. --- So.3d ----, 2011 WL 5027166 (Miss.App.). The defendant in Bonds relied on the Mississippi Supreme Court case Kitchens v. State, 186 Miss. 443, 191 So. 116 (1939) where the supreme court reversed a driver's conviction of driving a car while in a state of intoxication because the State failed to prove where the incident occurred and did not establish venue because “the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived ‘about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County.”

Distinguishing the Kitchens ruling, the appeals court in the instant case held that the State affirmatively established venue by stating that all five driving citations, including DUI citation, listed a certain county as the county in which offense occurred, the trooper testified that he worked in that county and that he took defendant to jail in that county, and the consent form for the breath test machine listed the county where the violation allegedly occurred as that certain county.

Editors Note: I am particular troubled by the fact that the charging documents were used as evidence to prove venue, when the opinion does not explain how that became admissible as evidence against the defendant. Nevertheless, remember to hold the State to their proof when the issue of venue is necessary.

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!

DUI Law - Drugged Driving Trial Doesnt Need Expert Say Pa Court

In Pennsylvania v. Griffith, --- A.3d ----, 2011 WL 5176800 (Pa.) the issue presented was whether expert testimony is required to convict a defendant of driving under the influence of a drug or combination of drugs, when the drugs in question are prescription medications. The trial court concluded that expert testimony was required under this statutory provision, and this appeal then ensued.

The facts showed that on May 31, 2006, Appellee was charged by criminal complaint with driving under the influence of a drug to a degree which impairs the ability to drive safely, following an incident that took place on May 5, 2006. The criminal complaint was based on an eyewitness's account of the reckless and dangerous manner in which Appellee was driving; on a police officer's observations of Appellee, including her failure to pass three field sobriety tests; and on the detection in Appellee's blood of Diazepam (Valium), at 95 nanograms per milliliter, and Nordiazepam, at 220 nanograms per milliliter, along with Appellee's acknowledgement that she had taken a different prescription medication, specifically, Soma 350, on the morning of the incident. Police also found prescription pill bottles for Soma in the open center console of Appellee's vehicle.

A bench trial was held on March 7, 2007, at which only two individuals testified: the eyewitness who observed Appellee's reckless driving and then called 911, and Officer William H. Dillman, the experienced police officer who responded to the call. In addition, the parties stipulated that both Diazepam and Nordiazepam are Schedule IV controlled substances, and that the amounts found in Appellee's bloodstream were, respectively, just below or in the therapeutic range. The trial court convicted Appellee.

A divided panel of the Superior Court reversed Appellee's conviction. Although no member of the panel disputed the trial court's finding that Appellee was incapable of safely driving on the afternoon of the incident that led to her arrest, the majority held that the evidence was insufficient to sustain Appellee's conviction. Commonwealth v. Griffith, 985 A.2d 230, 235–36 (Pa.Super.2009). Under the majority's reasoning, the laboratory tests revealed only the presence of prescription medications in Appellee's blood, and it was improper for the fact-finder to infer the effect of those prescription medications on the human body in the absence of expert testimony. Id. at 236. The majority contrasted the generally understood intoxicating effect of alcohol with the various effects of prescription medications: the effect of alcohol “is widely known and recognized by the average layperson, [but] the same cannot be said [concerning the effects] of prescription medications.” Id. Accordingly, the panel majority set forth a rule requiring expert testimony as to the effects and interactions of prescription medications when such medications are the alleged intoxicants in a subsection 3802(d)(2) prosecution. Id.

The statute at issue is the following:

(d) Controlled substances.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of following circumstances:

(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

On appeal from the appellate court's reversal of the conviction, the Supreme Court concluded that expert testimony was not an absolute prerequisite, stating:

"After analyzing the relevant statute in its entirety and in its proper context and considering the Superior Court's analyses discussed above, we decline to read into subsection 3802(d)(2) a mandatory requirement for expert testimony to establish that the defendant's inability to drive safely was caused by ingestion of a drug, even if it is a prescription drug, or drug combination. We do not dispute that in some cases, depending on the specific facts and circumstances, expert testimony may be helpful, or perhaps even necessary, to prove causation under subsection 3802(d)(2), but we decline to hold that the need for expert testimony is inherent in the statutory provision and thus mandatory in all cases."

"Our decision derives, in large part, from a comparison of those provisions of Section 3802 that concern alcohol consumption versus those that concern drug usage. Most of the alcohol-related provisions, i.e., subsections 3802(a)(2), (b), and (c), prohibit driving after an individual has imbibed sufficient alcohol such that the alcohol concentration in that individual's blood or breath reaches certain, specific levels within two hours after driving. To prove the specific level of alcohol in the defendant's blood or breath at the relevant time, a blood or breath test is obviously required. In contrast, under the general impairment provision set forth in subsection 3802(a)(1), a blood or breath test to determine alcohol level is not required; rather, a different standard is used, to wit, “imbibing a sufficient amount of alcohol such that [one] is rendered incapable of safely driving.” We have made clear that Section 3802 neither specifies nor limits the type of evidence that the Commonwealth may proffer to prove its case under subsection 3802(a)(1). Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009) (citing Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa.Super.2006)). Although the Commonwealth may proffer evidence of alcohol level and/or expert testimony to establish that the defendant had imbibed sufficient alcohol to be rendered incapable of driving safely, it is not required to do so under subsection 3802(a)(1). Id. This is well-established, long-standing law in Pennsylvania. See, e.g., Commonwealth v. Horn, 150 A.2d 872, 875 (Pa.1959) (under a prior version of the statute, making clear that medical opinion is admissible but not required to prove that a defendant operated a motor vehicle while under the influence of intoxicating liquor). As we stated in Segida, supra at 879, “[r]egardless of the type of evidence that the Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on the inability of the individual to drive safely due to consumption of alcohol-not on a particular blood alcohol level.” Thus, as an important practical consequence of this statutory scheme, a drunk driver who declines to submit to a blood or breath test to determine alcohol level can still be charged with and convicted under subsection 3802(a)(1) if the Commonwealth can prove that he or she drove after imbibing a sufficient amount of alcohol such that he or she was rendered incapable of safely driving."

The General Assembly chose to construct a similar statutory framework with regard to prohibitions against driving after drug usage. First, subsection 3802(d)(1) prohibits one from driving if there is any amount of a Schedule I controlled substance, any amount of a Schedule II or Schedule III controlled substance that has not been medically prescribed for the individual, or any amount of a metabolite of a controlled substance in one's blood. Analogously to subsections 3802(a)(2), (b), and (c) for alcohol intoxication, subsection 3802(d)(1) requires a measurement to determine if any amount of a Schedule I, II, or III controlled substance is detectable in the defendant's blood. Second, and analogously to subsection 3802(a)(1) for alcohol intoxication, subsection 3802(d)(2) prohibits driving if one is “under the influence of a drug or combination of drugs to a degree which impairs [one's] ability to safely drive.” This provision by its plain text does not require that a drug be measured in the defendant's blood, nor does it specify any particular manner by which the Commonwealth is required to prove that the defendant was under the influence of a drug. Like subsection 3802(a)(1), see Segida, supra at 879, subsection 3802(d)(2) does not limit, constrain, or specify the type of evidence that the Commonwealth can proffer to prove its case. Given the general nature of subsection 3802(d)(2)'s prohibition, the textual similarity of subsection 3802(d)(2) to subsection 3802(a)(1), and Section 3802's overall structure, we decline to impose a requirement for expert testimony in all prosecutions under subsection 3802(d)(2)."

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!

Friday, November 04, 2011

Tougher DUI Law Goes Into Effect In Oklahoma - NewsOn6.com - Tulsa, OK - News, Weather, Video and Sports - KOTV.com |

Tougher DUI Law Goes Into Effect In Oklahoma - NewsOn6.com - Tulsa, OK - News, Weather, Video and Sports - KOTV.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!

DWI Law - Texas Says "Tell the Officer Yes" is Not Coercive Breath testing

In Leal v. State of Texas, --- S.W.3d ----, 2011 WL 5223122 (Tex.App.-Dallas) the defendant, who spoke Spanish only, was arrested for DWI. Appellant Leal was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings. Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording. Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording. Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath. Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath. Tell the officer ‘Yes'—.” Officer Gabriel then immediately asked appellant herself, “yes or no.” Appellant nodded yes. Thereafter, the videotape shows appellant providing two breath samples.

On appeal, the court held that the playing of the tape in the manner described did not cause the breath test to become nonconsensual. They wrote:

"Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary. The statutory warnings were on an enlarged form posted on the wall just inches from appellant. Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish. Several times during the four-minute tape, appellant looked at the form as if he were reading it. Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously. Moreover, appellant could see the recording was interrupted. Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample. Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress."

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, November 03, 2011

DUI Laws - Colorado Trial Jury Improperly Uses Dictionary

In People of Colorado v. Holt, --- P.3d ----, 2011 WL 4837640 (Colo.App.) the defendant was found guilty by a jury of vehicular eluding. After trial, it was learned that one of the jurors had snuck a definition of "elude" or "eluding" from a dictionary into the room for deliberations. Affidavits from jurors also revealed that one juror had claimed that, based on his personal experience, vehicular eluding was a minor traffic violation. The trial court granted a new trial. 

On appeal, as a matter of first impression, the appellate court found that the juror's statement during deliberations that the penalty for the offense was a “slap on the wrist,” did not constitute extraneous information. The trial court found that a juror claimed to have had some pre-existing personal experience with vehicular eluding and that he told the other jurors that the penalty for the offense was a “slap on the wrist.” The appeals court wrote as follows:

"Neither party cited, and we have not found, any reported Colorado opinion deciding whether a juror's statement regarding the severity of a charged offense constitutes extraneous information under CRE 606(b). However, jurors may apply their general knowledge and everyday life experience in deliberations. Kendrick, 252 P.3d at 1064. Therefore, testimony that jurors held discussions based on a juror's general knowledge or personal experiences cannot be offered to impeach a verdict under CRE 606(b). See id. We conclude that this general rule also applies to the general knowledge of, and previous personal experiences with, the criminal justice system of a lay juror, as opposed to an attorney or other person with professional or educational expertise in that field."

                    * * *

"Here, the juror's statement was based upon his own personal knowledge, obtained before the trial began. Therefore, we conclude that the juror's statement was not extraneous information, but instead was part of the jury's internal discussions and cannot be offered as evidence to impeach the verdict..."

In reversing the finding that the use of the dictionary required a new trial, the appeals court stated:

"Here, the trial court found that a member of the jury brought a dictionary definition of “elude” or “eluding” into the jury room and shared it with several jurors. A juror's looking up of a dictionary definition of a crime of which the defendant has been charged is improper and affidavits concerning that fact are admissible under CRE 606(b). Wiser v. People, 732 P.3d 1139, 1141 (Colo.1987). The affidavits do not, however, disclose what definition the jurors considered, or whether the definition was inconsistent with the language of the vehicular eluding statute.FN2 Defendant bears the burden of proving that the extraneous information posed a reasonable possibility of prejudice to him. See Kendrick, 252 P.3d at 1064. By failing to provide the content of the definition, defendant failed to meet his burden of proving prejudice. The trial court, therefore, erred by concluding that the definition presented to the jury was prejudicial and ordering a new trial based on that conclusion."

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!

Blog Archive