Friday, December 30, 2011

DUI Law - Illinois Sanctions Loss of Videotape

In People v. Kladis, 2011 IL 110920 (decided December 30, 2011) the Illinois Supreme Court affirmed a trial court ruling, barring any evidence that was contained on a videotape that was negligently erased after it had been requested by defense counsel.  The facts established that within 5 days after the defendant had been arrested for DUI (and 25 days prior to the first court date) the defense filed and hand delivered a discovery request for inter alia, any and all videotapes of the stop and arrest of the defendant.

On the first court date, the State failed to produce the tape. After confirming with the arresting officer that the incident was videotaped, the matter was continued so that the state could obtain a copy of the video for the defense. At the next court date, it was learned that the police department, pursuant to policy, had automatically purged the tape (25 days after the request was handed to the prosecutor and hours prior to the 1st court date). The trial court barred introduction of any evidence that would have been on the tape, including the driving of the car, the field sobriety tests, and the manner in which the defendant exited the vehicle.

The Supreme Court first dealt with the State's argument that the video was not 'discoverable' because discovery for misdemeanors is extremely limited, and videotapes were not included on the list of things that a defendant can seek in a misdemeanor DUI, based on an old 1974 decision on discovery. The Supreme Court in the instant case stated that the 1974 decision was merely a review of the status of custom and practice at that time, and was not intended to remain static, nor was it intended to "not take into account the fundamental changes which have occurred in law or society since that ruling."

"In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties." The Suprem Court therefore held that videotapes were discoverable.

In terms of the propriety of the sanctions incurred for failing to comply with discovery, the court found the sanctions proportionate to the violation. "Here, the court properly exercised its discretion in choosing from the spectrum of available options and narrowly tailoring its sanction to bar the State from introducing testimony regarding what was contained in the video recording."

Congratulations go out to Attorney Ed Maloney, partner to new NCDD member Thomas Moran.

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Thursday, December 29, 2011

DUI Law - Tennessee Limits Power of Police to Arrest Outside Municipality

In State of Tennessee v. Cox, Slip Copy, 2011 WL 4716284 (Tenn.Crim.App.) the appellate court affirmed a trial court ruling, holding that a Tennessee Valley Authority police officer had no jurisdiction to stop a vehicle outside of his jurisdiction. The state tied to argue that, like other police officers, the TVA police still have police power throughout the State. In distinguishing, the court relied on the enabling statute which provides that a TVA peace officer:

“shall have and exercise ... the power to make arrests for public offenses ... committed upon, about, or against TVA property or on public roads or rights-of-way passing through or over such property, and, while in pursuit of a person fleeing after committing such an offense, may pursue the person and make arrest anywhere in the state.... Notwithstanding any other provision of law, the authorities, responsibilities and liabilities of such officers shall be limited as provided for under this section.” (emphasis supplied)

The State then tried to use the 'citizen arrest' statute as an alternative basis for the stop. Unfortunately, the record made in the trial court by the prosecutor was poor:

"The State contends that even if Tennessee Code Annotated section 39–3–120 is not applicable, Officer Smith had the authority to make the stop pursuant to Tennessee Code Annotated section 40–7–109, the “citizen's arrest” statute. This claim is likewise unavailing. Tennessee Code Annotated section 40–7–109 provides that in limited situations, a private citizen may be authorized to make an arrest. However, as the defendant notes, the record provided on appeal does not reflect Officer Smith's reason for stopping the defendant, leaving us unable to determine whether there was a legitimate basis for the stop. Therefore, “this court must presume that the trial court's rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App.1991) 

Editor's Note: This case is a good example of what a defendant should argue if the State tries to seek an alternate ground on appeal for reversal - keep in mind that most prosecutors at the trial level do not think about 'making a record' before filing a knee-jerk appeal. Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Wednesday, December 28, 2011

DWI Law - New York Says Falure To Cross on Field Tests Not Ineffective

In People of the State of New York v. Biro, --- N.Y.S.2d ----, 2011 WL 2279160 (N.Y.A.D. 4 Dept.), 2011 N.Y. Slip Op. 04856 the defendant was convicted of DWI and he claimed that his lawyer was ineffective. The lawyer did not challenge the legality of the stop, probable cause for the arrest, nor did he cross-examine the arresting officers on the field tests or chemical tests. The appellate court rejected that proposition:

"Although defense counsel did not cross-examine the officers concerning administration of the field and chemical sobriety tests, defendant fails to identify a single error in those tests with respect to which defense counsel should have inquired. Moreover, the record establishes that defense counsel's strategy was to challenge the People's allegation that defendant was operating the vehicle in question, an element of the charges against him. In accordance with that strategy, defense counsel elicited testimony during cross-examination of the officers that the vehicle was stopped and the engine was off when they approached it, that the vehicle appeared to be disabled and that the vehicle may have been operated by defendant's father, who was sitting in the passenger seat thereof."

Very little in regards to the facts was recited in the opinion, other than the fact that the vehicle was parked partially in the traffic lane of a roadway, thereby creating a traffic hazard. Additionally, the record also purportedly established that the police had probable cause to arrest defendant based on, inter alia, the odor of alcohol and the open container of alcohol in the vehicle, defendant's admission that he had been drinking and his failure to pass field sobriety tests.

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DUI Law - Georgia Says Prosecutors Mistake Not Double Jeopardy Bar to Retrial

In Williams v. State, --- S.E.2d ----, 2011 WL 3925582 (Ga.App.) the prosecutor erroneously stated in closing arguments that the defendant had consumed margaritas, when in fact the defendant had admitted consuming 2 1/2 beers. This error was not discovered by the defense until the jury began deliberating. The state offered to have a mistrial, but the defense simply wanted the videotape of the defendant replayed before the jury, where the defendant's true statement would appear. The judge refused to allow a reply of the video. Thereafter, the defense also moved for a mistrial, which was granted.

Prior to retrial, the defense then moved for a dismissal under double jeopardy (i.e. motion for plea in bar) claiming that the prosecutor goaded defendant into asking for a mistrial. On appeal, the law was discussed as follows:

"As an initial matter, to the extent that Williams subsequently consented to and joined in the State's motion for a mistrial, he could not later use the mistrial as the basis for a plea of double jeopardy. See Bellew v. State, 304 Ga.App. 529, 532(1), 697 S.E.2d 249 (2010). Notwithstanding Williams's contention that he was goaded into joining the mistrial motion, no basis for reversal has been shown. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial."

Holding that the retrial was not prohibited by double jeopardy, the court wrote:

"The record in this case supports the trial court's finding that the prosecutor's mistake was unintentional and was not intended to goad Williams's counsel into moving for a mistrial. The record reflects that the prosecutor's mistake was neither blatant, deliberate, nor made in bad faith. No objection was raised at the time that the mistake was made. And when Williams's counsel later discovered and raised the issue, he likewise expressed a belief that the prosecutor's misstatement was “unintentional” and that “the prosecution didn't make th[e] error to goad [the defense] into moving to mistrial[.]” The evidence thus reflects that “[a]lthough the prosecutor was mistaken or confused as to the [evidence regarding the type of alcoholic beverage that Williams consumed], the record shows the prosecutor's mistake[ ][was] made in good faith and reveals the state's intention was not to provoke mistrial.” (Citation and punctuation omitted.) State v. Oliver, 188 Ga.App. 47, 51(3), 372 S.E.2d 256 (1988). See also Mathis v. State, 276 Ga.App. 587, 588, 623 S.E.2d 674 (2005) (concluding that retrial was not barred since the prosecutor's improper comments during closing argument were not made with an objective to abort the trial and subvert double jeopardy protections).

"Moreover, “the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” (Citation and punctuation omitted.) Oliver, supra, 188 Ga.App. at 52(3), 372 S.E.2d 256. Regardless of the type of alcoholic beverage that Williams had consumed, the evidence was sufficient to support the charged offenses. See OCGA §§ 40–6–181(b)(5), 40–6–253(b)(1), 40–6–391(a)(1) and (5). Under these circumstances, the prosecutor's mistaken argument appears to have been made in a zealous attempt to obtain a conviction, rather than to force a mistrial. See Roscoe v. State, 286 Ga. 325, 327, 687 S.E.2d 455 (2009) (affirming the denial of the defendant's plea in bar since the evidence established that the prosecutor's erroneous opening statements were made while aggressively seeking a conviction, not a mistrial); State v. Traylor, 281 Ga. 730, 734, 642 S.E.2d 700 (2007) (concluding that defendant's retrial was not barred since there was no evidence to support a finding that the prosecutor's misconduct was intended to terminate the trial, rather than enhance the likelihood of conviction).

"Since the evidence supports the trial court's findings that the prosecutor's mistake did not rise to the level of intentional prosecutorial misconduct and was not intended to subvert double jeopardy protections, we affirm the denial of Williams's plea in bar.

Editor's Note: What I found odd was the fact that the video did not go back with the jury so they could play it during deliberations - a practice commonly done in Illinois (over defense objections). I would be interested in hering what other courts do with video during jury deliberations...
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DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense." 

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” 

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.” 

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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DWI Law - Texas Holds HGN Cannot Be Used to Prove Blood Alcohol Content

In Jones v. State of Texas, Not Reported in S.W.3d, 2011 WL 5607832 (Tex.App.-Dallas), the defendant on appeal complained that the trial court erred when it allowed the police to correlate the results of an HGN test to a BAC of 'over 0.08'. Specifically, the appeals court wrote:

"The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769; Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). It is error to allow such testimony at trial. See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ “ was impermissible correlation of defendant's performance on HGN test to blood alcohol content); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees. Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues. Odom continued:

ODOM: A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point. So there is a total of six clues on this HGN or eye test. There are six clues. A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE: There are statistics that go along that you talked about?

ODOM: Yes, if they meet that decision point which in this case is four. If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE: Your Honor, I am going to object to that. That is improper. In Texas it is not recognized as being equivalent to any number. It would be on BAC. That is case law.

COURT: I think that is cross examination. Overruled."

The appeals court found that the admission was error. The appeals court then had to decide whether the error was harmless. The court reviewed the remaining testimony, noting that this remark was only made once out of 173 pages of testimony (who said length doesn't count?). The appeals court also concentrated in particular on the defendant's expert Dr. Lance Platt, summarizing his testimony as follows:

"After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test. Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing. His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas. According to Platt, there are three parts to an investigation for driving while intoxicated: vehicle in motion, personal contact, and sobriety testing. Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

"Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system. Platt also discussed the heel-to-toe walk and the one-legged stand tests overall. Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest. When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

"On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested. Platt testified without objection that, in his research, 91 .6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher. Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.” He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests. Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests."

The appeals court concluded that the error was harmless:

"Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury. The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages. The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment. The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening. The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station. Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night. After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial."

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DUI Law - Defendant Represents Self - Blows Easy Win

Today's DAD should be copied and given to potential clients who try to 'save money' and represent themselves. In City of Olmstead Falls v. Buckwald Slip Copy, 2011 WL 6009591 (Ohio App. 8 Dist.), 2011 -Ohio- 6174 the defendant was found guilty of drunk driving while riding a bicycle. unfortunately, he represented himself. Buckwald pleaded no contest to driving under the influence, and the court sentenced him to ten days in jail, one-year driver's license suspension, and a $500 fine suspended. Apparently at some point he learned that he could have won his case with a good lawyer, and then filed an untimely motion to reconsider (another blunder by an untrained citizen). After losing that, he filed an untimely application to re-open, which could only be successful if he alleged incompetent counsel.

As the United States Supreme Court noted in Faretta v. California (1975), 422 U.S. 806, 834, n. 46, 95 S.Ct. 2525, “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ “ Oh well, better luck next time (and you know there will be). Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Law - Minnesota OKs Stop From Stale Computer records

In State of Minnesota v. Nelson, Not Reported in N.W.2d, 2011 WL 6015167 (Minn.App.) a police officer ran the plates of a vehicle and the computer reported the plates expired, even though the plates appeared to have valid and current tags. The cop stopped the car, and determined that the tags were valid, but that the records of the Department of Public safety were not current (by several days). During the stop Deputy Silgjord noticed indicia of intoxication and arrested appellant for driving while impaired. Appellant was charged with first-degree driving while impaired and first-degree driving while impaired (over .08). Appellant moved to suppress the evidence from the stop, arguing that the stop was unconstitutional. The district court upheld the stop and denied appellant's motion and this appeal followed.

In denying the appeal, the majority wrote:

"We recently held that a discrepancy between displayed license-plate tabs and information derived from an officer's onboard computer system constitutes an objectively reasonable basis to initiate an investigatory stop. State v. Cox, ––– N.W.2d ––––, ––––, 2011 WL 5903399, at *1(Minn.App. Nov. 28, 2011). Our holding in Cox compels a similar result here. Upon observing a discrepancy between the displayed license-plate tabs on appellant's vehicle and the information contained in the state's computer database, the officer had an objectively reasonable basis for the stop. The district court therefore did not err by denying appellant's suppression motion."

The dissent wrote:

"[T]he United States Supreme Court has held:

[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

 Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979). Investigatory stops to check a vehicle's registration are therefore unconstitutional, unless supported by reasonable, articulable suspicion. By allowing an officer to stop a vehicle that is displaying current, legally purchased, properly affixed registration tabs, the majority has upheld a stop based upon the state's failure to keep its records current. I am aware of no published caselaw—save for this court's recently released opinion in Cox—allowing the police to conduct a seizure based solely on a delayed updating of the state computer system.FN2 Yet that is precisely what the majority has done, first in Cox and again here. I wish to take no part in the upholding of this stop."

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DWI Law - Stop for Touching Fog Line Criticized

Metcalf v. Commissioner of Public Safety, Not Reported in N.W.2d, 2011 WL 6015361 (Minn.App.) upheld a stop of a vehicle for touching the centerline and fogline twice. Of course, other jurisdictions allow for such a stop, but the dissent brings out why this one is so ridiculous. I repeat the dissent in its majority:

"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.

In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.

The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.

Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.

At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."

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DUI Law - Mississippi Reverses Conviction For Suspicious Behavior Illegal Stop

This case comes to DAD from NCDD member Lance Mixon. In Reynolds v. City of Water Valley, --- So.3d ----, 2011 WL 6034360 (Miss.App. 2011) the defendant challenged his conviction based upon a lack of probable cause to stop the vehicle. On the morning of September 6, 2008, at 4:30 a.m., Water Valley Police Officer Christopher Blair was on routine patrol in Water Valley, Mississippi. Officer Blair was stopped at a red light at the intersection of Central Street and North Court Street. While waiting for the light to change, Officer Blair noticed a car stop approximately six-car lengths behind him. When the light changed, both cars proceeded southbound on Central Street. Officer Blair then turned left into a parking lot to perform a security check on the Dollar General business, but he noticed the car continued straight on Central Street. Officer Blair noted the car was a silver Chevrolet Corvette, which he stated was a “very unique car[.]”

After checking the doors, windows, and back of the Dollar General, Officer Blair turned north onto Railroad Street and saw the Corvette driving east on North Court Street. When the Corvette passed him at the intersection of Railroad Street and North Court Street, he noted the car was traveling below the speed limit of twenty-five miles per hour. He also saw that two males were in the Corvette and that the passenger was drinking from a white cup. The passenger pointed at Officer Blair when they drove by his car. Once the passenger pointed to the officer, the Corvette slowed from less than twenty-five miles per hour to approximately five to eight miles per hour. Officer Blair began to follow closely behind the Corvette for a “good little distance” and proceeded to call in the license plate number to dispatch. Dispatch informed Officer Blair that the car belonged to Reynolds and that there were “negative 29s, which means it's not wanted or stolen out of anywhere.” From there, the two cars continued east on North Court Street to Goode Street. Goode Street is a public street that generally runs north and south. To the south, it runs through the elementary school's campus. The Corvette turned right (south) onto Goode Street toward the elementary school; Officer Blair turned left (north) which runs into Jones Street. 

Officer Blair traveled approximately 150 feet north on Goode Street when he made the decision to turn around and initiate a traffic stop with the Corvette because he believed it suspicious that the Corvette would be going toward the school at 4:30 a.m. The Corvette had turned around in the elementary school's parking lot and was driving north on Goode Street when the two cars passed each other near the elementary school. After passing each other, Officer Blair turned around, turned on his blue lights, and initiated a traffic stop. In response to Officer Blair, the Corvette immediately pulled over and stopped.

On appeal, the court found the stop of the vehicle illegal:

"At the bench trial, Officer Blair testified that Reynolds's behavior was suspicious and initiated an investigatory stop based upon the following events:

1. Reynolds stopped six-car lengths behind him at the stop light;

2. The car slowed its speed dramatically upon seeing the officer; and

3. The car, although on a public street, was driving toward the elementary school at 4:30 a.m."

Continuing, the appeals court wrote:

 "The traffic stop ultimately led to Reynolds's arrest and conviction of DUI. Based on this evidence alone, we find Officer Blair did not have reasonable suspicion sufficient to initiate an investigatory stop under the Terry standard. At the bench trial, Officer Blair testified: Reynolds did not violate any traffic laws; the car had not been reported stolen; and there was not any other suspicious behavior beyond what was previously described. Further, Officer Blair testified that Reynolds did not exhibit any of the usual signs of DUI, such as swerving, failing to dim headlights, or abrupt stopping and starting. He also testified that one reason he was suspicious of the Corvette and decided to initiate the stop was based on the fact that the Corvette was driving toward the elementary school. He testified there “had [been] some break-ins both at the school, high school, [and] other businesses, that's why I was checking Dollar General, so I wanted to turn around and see why they were at the elementary school.” It is unclear from the record whether the elementary school or the high school had been broken into in the past, when the alleged break-in had occurred, and whether the suspects of the break-in had been apprehended. For example, had the suspects already been apprehended, it might not have been reasonable for Officer Blair to be suspicious of a car driving toward the elementary school. Further, once he turned around, Officer Blair saw that the Corvette had not stopped at the elementary school, nor was it doing anything suspicious at the school, yet he still proceeded to initiate the traffic stop. It was not until after Reynolds had exited the car that Officer Blair began to suspect Reynolds might have been drinking and driving. The supreme court has held that if the seizure was an unlawful exercise of the officer's authority, then any evidence that results from the unlawful seizure, in this case evidence of a DUI, is considered fruit of the poisonous tree and should be suppressed. Haddox, 636 So.2d at 1233. Considered as a whole, these acts of “suspicious behavior” do not demonstrate Reynolds had committed any criminal act or that one was imminent. Officer Blair might have been correct under the circumstances in concluding that the Corvette looked suspicious at 4:30 a.m.; however, merely looking suspicious is not sufficient to justify a Terry investigative stop. There was simply no evidence Reynolds had committed any criminal offense or was about to engage in criminal activity. Since Officer Blair lacked the proper reasonable suspicion to initiate a Terry stop, any evidence he found as a result of that stop is considered fruit of the poisonous tree and should have been suppressed at the hearing."
Therefore, the appeals court reversed the conviction for DUI Refusal and remanded with instructions.

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OWI Law - Illegal Entry Through Open Door Forces DUI Dismissal

In State of Iowa v. Dierks, Slip Copy, 2011 WL 6076538 (Table) (Iowa App.), a concerned citizen reported a possible drunk driver. While following that person, the alleged DUI driver pulled into a business garage, parked with the garage overhead open, and entered into a business. The 'business' door was open, but a screen door was closed. The entrance did not appear to be one that would be used by the public at large. The police officer knocked and no one responded. The cop found the driver urinating in the restroom, and asked him to step outside. Once outside, the cop developed probable cause to arrest.

On appeal, the defendant alleged that entry was illegal. The Iowa court wrote:

The determination of whether Dierks “has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation.” See id. at 563 (quoting State v. Legg, 633 N.W .2d 763, 767 (Iowa 2001)). In resolving this issue, we do not ask “whether the individual has chosen to conceal some private activity but whether the government's intrusion infringes upon the personal and societal values protected by” the constitution. Id. (quoting State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998)).

“Although each case is unique,” we have differentiated business activity in a home. See id. (stating a guest in a home does not have a legitimate expectation of privacy if the guest is “on the premises merely to conduct a business transaction”). Additionally, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).

Courts have also concluded that “[a]n open gate invites entry.” United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (holding no constitutional violation when police entered an open business to ask the owner's permission to conduct a search). In United States v. Sandoval–Vasquez, 435 F.3d 739, 742–44 (7th Cir.2006), the officers in that case entered an open business around 4:30 p.m. by walking through the garage and a pedestrian entrance. The court noted the fact the business “may have been in the process of closing” did not make the entry unconstitutional, and distinguished an earlier case in which the officers unconstitutionally entered “a business they knew was closed.” Id . at 743.

"Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval–Vasquez, 435 F.3d at 742–44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.

As to the State's claim of exigent circumstances, the court responded:

"The absence of hot pursuit requires us to carefully examine the claim of destruction of evidence. Id. at 566. There was no evidence Dierks knew Quandt was looking for him. There was no evidence Quandt suspected Dierks was engaged in any purposeful activity within the business premises that would destroy the integrity of any future chemical tests. Dierks's opportunity to flee by vehicle was denied, as Quandt blocked Dierks's car in the garage with his patrol car. There was no evidence concerning any efforts by police to seek a warrant or to determine the amount of time it would take to secure a warrant. Like the situation presented in Lovig, the facts here do not support a finding of exigent circumstances. See id. at 566–67. We therefore do not believe Quandt was entitled to enter through the rear door without a warrant or consent."

Therefore, the court reversed the defendant's conviction with directions to suppress.
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DUI Law - Illinois Suppresses Blood Test Without Preservatives

In People v. Hall, --- N.E.2d ----, 2011 IL App (2d) 100,262, 2011 WL 6175606 (Ill.App. 2 Dist.), the defendant (who happens to be a county judge) was arrested for DUI by a police officer named Goldsmith (who is now deceased). During the course of the arrest, the arresting officer, Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and emergency medical technicians tended to defendant for about 25 minutes. Defendant was then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt of the pepper spray. While at the hospital, defendant was hooked up to an electrocardiogram, which detected a rapid heart rate. Before defendant was moved from the emergency room and admitted to the hospital, Goldsmith told him to come to the police station to pick up his citations after he was released. Goldsmith then left, and defendant was moved to a hospital room, where, eventually, several vials of his blood were drawn to be tested for heart-related issues. The following afternoon, defendant was released from the hospital and he picked up his citations at the police station.

The Illinois Attorney General took over the prosecution of this case, as the Lake County State's Attorney determined that his office had a conflict of interest.FN1 An assistant Attorney General, with the help of an assistant State's Attorney, learned that several vials of defendant's blood still remained at Condell. On May 14, 2008, the trial court ordered Condell to release the blood samples to the Vernon Hills police department for transportation to the Illinois State Police (ISP) crime lab for testing. FN2 An ISP technician tested the blood for alcohol concentration on May 15 and reported a blood alcohol concentration (BAC) of 0.107. This information was tendered to defendant on June 11, but the test results remained sealed under court order.

Jennifer Poltorak, a toxicologist at the ISP crime lab with bachelor's degrees in chemistry and forensic science, testified that she received three tubes of defendant's blood for testing, including one tube with a purple stopper. She tested two samples from the purple-topped tube, using a head space gas chromatograph; the average result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the ethanol reading would not have been affected by the presence of methanol in the blood sample. She also testified that it was not unusual to perform a BAC test on a blood sample that was 18 or 19 days old. Defendant's only witness, James O'Donnell, was a pharmacist and professor with bachelor's and doctorate degrees in pharmacy and a master's degree in nutrition. Testifying as an expert in pharmacology, O'Donnell opined that the tubes of defendant's blood were tainted because of a lack of determination of proper storage and the “significant probability” that microbial growth in blood untreated with preservative would lead to the synthesis of alcohol in the samples and would cause a “false positive” reading. Preservatives do not completely kill such bacteria but limit their growth.

Illinois administrative regulations state:

"Officers shall use DUI kits provided by the Department, if possible. If kits are not available, officers may submit two standard grey top vacuum tubes. (Pursuant to generally accepted industry standards, grey top vacuum tubes contain an anticoagulant and preservative.)"

On appeal, the court found that the failure to comply with this regulation (in that a purple-topper indicates a lack of preservative in violation of the rgulation) rendered the result inadmissible.

Additionally, the state argued that they should only have to 'substantially comply, rather than 'strictly comply' with the regulations.

In rejecting that position, the appeals court stated:

"Here, while there was evidence that the purple-topped tube from which the blood was taken for the BAC test contained an anticoagulant, there is no evidence that the tube contained the required preservative. There was 50% compliance with the requirement that the tube contain both an anticoagulant and preservative; however, there was zero compliance with the requirement that the tube contain a preservative. This is a failure to comply, not “substantial” compliance."

The appeals court also explained when a regulation requires substantial compliance or strict compliance. Quoting from an earlier decision the court explained how, in a case involving the failure to perform a 20 minute observation period (where the defendant admitted that he did not burp regurgitate or place anything in his mouth), substantial compliance might apply, but why here it must be strict compliance :

“The standards exist, not for their own sakes, but in service of the truth-seeking function, which they promote by ensuring that blood, breath, and urine tests are conducted in a manner that produces reliable results. If the standards are to serve this purpose, the rule of substantial compliance must be one that neither blithely ignores the standards nor enforces them in a purely rote manner. We are therefore reluctant to relax the standards when doing so would require inquiry into the scientific basis for a particular standard. However, when it is clear that a particular deviation from the mandated procedures does not pertain to a matter of science, a court is perfectly competent to determine whether, in a given case, the deviation compromised the integrity of the testing process.” People v. Ebert, 401 Ill.App.3d 958 (2010)

Continuing, the appeals court wrote:

"[T]he issue of whether the failure to include preservative in the tube of blood used for defendant's BAC test requires an inquiry into the scientific basis for the requirement. The blood was not tested for almost three weeks after it was drawn; neither the trial court nor this court is “perfectly competent,” in the words of Ebert, to determine whether the failure to include the preservative compromised the integrity of the testing process. See Ebert, 401 Ill.App.3d at 965. The legislature has assigned to the Department of State Police the responsibility to promulgate standards for chemical analyses of blood, urine, and breath and to “prescribe regulations as necessary to implement” section 11–501.2. 625 ILCS 5/11–501.2(a)(1) (West 2006). We will not second-guess the reasoning behind these regulations by considering conflicting testimony regarding scientific matters that are within the purview of the Department of State Police. We cannot conclude that failure to strictly comply with subsection (d) is de minimis. Under the facts of this case, Ebert does not support the State's argument that substantial compliance with the regulation would be sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err in excluding the BAC evidence because the State did not comply with subsection (d)."

The appeals court then affirmed the suppression of the blood test in this matter.
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DUI Law - Use of Video Doesnt Violate Confrontation Says Florida

In State of Florida v. Holland, --- So.3d ----, 2011 WL 6183512 (Fla.App. 4 Dist.) the defendant was stopped and eventually arrested for DUI. After the initial stop, BSO Deputy Grady was called to the scene to perform field sobriety exercises on Holland. He requested Holland undergo a breath test. The interaction between Grady and Holland was recorded by video camera. In particular, the videotape showed Holland's refusal to submit to breath testing, the field sobriety exercises administered by Grady, and the conversations between Grady and Holland during the course of the investigation.

Before Holland's trial, the State announced that it did not intend to call Grady as a witness, prompting Holland to move to suppress all of Grady's involvement in the investigation. This included the entire contents of the videotape. Holland argued that the State's decision not to call Grady would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution,FN1 citing to Crawford v. Washington, 541 U.S. 36 (2004). The trial court agreed and suppressed the video.

On appeal, the court reversed. It found that the defendant's refusal to submit to sobriety cases was admissible, citing to a variety of cases as such:

"First, Holland's refusal to submit to sobriety testing is admissible. This issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) 1.a ., Florida Statutes (2010). Section 316.1932(1)(a) 1.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a) 1.a., Fla. Stat. (2010); see also State v. Kline, 764 So.2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant's refusal to submit to a breath or urine test). We look no further than the legislative directive to conclude that the segment of the videotape showing Holland's refusal is admissible under section 316.1932(1)(a) 1.a. Furthermore, Holland's statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party's own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v. State, 890 So.2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 F. App'x 948, 950 (11th Cir.2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

How the above statutes and caselaw relating to the admissibility of a refusal to submit to a post-arrest breath blood or urine test authorizes the admissibility of evidence of a refusal to submit to pre-arrest field sobriety testing is beyond this author's comprehension. In regards to the remaining portions of the videotape, the court wrote:

"We hold that Grady's statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance of an operative fact that gives rise to legal consequences.” Banks v. State, 790 So.2d 1094, 1097 (Fla.2001). Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein. Id. at 1097–98.

Here, Grady's directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct on the videotape); see also Stotler v. State, 834 So.2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay). The State is correct that Holland's reactions on the videotape would be meaningless without having the benefit of Grady's statements prompting Holland's reactions."

The court reversed and remanded the case to the trial court to determine whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop.

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OWI Law - Wisconsin OKs Attack on Prior Convictions to Beat Felony Charges

In State of Wisconsin v. Decorah, Slip Copy, 2011 WL 6090109 (Wis.App.), the defendant was arrested for his fifth OWI offense. Decorah collaterally attacked a prior OWI conviction, alleging that he did not validly waive his right to counsel in that prior case. In particular, Decorah contended that he did not validly waive his right to counsel in his second OWI case because he did not know the applicable range of penalties when waiving counsel. After a hearing, the circuit court agreed that Decorah did not validly waive his right to counsel in the second OWI case. He was sentenced instead as a 4th offender and then the State appealed. Referring to previous caselaw the court affirmed:

"In Ernst, the supreme court explained that, in the context of sentencing based on prior convictions, a collateral attack may be based on a defendant's having not known or understood information that should have been provided when waiving the right to counsel in the prior proceeding:

[To collaterally attack,] the defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.... For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “ did not know or understand the information which should have been provided ” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel.

 Id., ¶ 25 (emphasis added). As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis.2d 300, ¶ 15. Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “ ‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’ “ See Ernst, 283 Wis.2d 300, ¶ 15 (quoting Tovar, 541 U.S. at 81). Thus, Ernst, contrary to the State's position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel."

Editor's Note: Even with a waiver of counsel, a prior conviction might be subject to attack for the reasons stated above.

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DWI Law - Minnesota Says Pre-Arrest Silence Can Be Used at Trial

In Minnesota v. Seebeck, --- N.W.2d ----, 2011 WL 6306620 (Minn.App.) a sheriff's deputy found Shawn Seebeck at two o'clock in the morning, alone, drunk, and wandering away from an unoccupied pickup truck on Highway 23. Seebeck agreed with the deputy that he should not have been driving because of his license revocation, suggested that he was not too impaired to drive, performed field sobriety tests, was arrested for drunk driving, and then submitted to a blood test without ever suggesting that he actually had not been driving. At the impaired-driving trial, the state emphasized Seebeck's omission to the jury, which convicted him. The appellate court was asked to decide whether the federal and state constitutions prohibited the state from emphasizing Seebeck's silence to bolster its trial position that, by saying nothing, Seebeck tacitly verified the deputy's understanding that he had been driving. Additionally, the court was also asked to determine whether the prosecutor plainly erred by misstating the law of physical control of a vehicle under the impaired-driving law. 

With regards to pre-arrest silence, the court wrote:

"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.

Regarding the use of the post-arrest silence, the court stated:

"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.

"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."

Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:

"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.

The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.

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DUI Law - Arizona Says Illegal Stop for One Brake Light Means Dismissal of Charges

In State of Arizona v. Fikes, --- P.3d ----, 2011 WL 6318947 (Ariz.App. Div. 2) a police officer observed that the brake light located at the top rear of Fikes's vehicle was not working and stopped him for violating A.R.S. § 28–939. The vehicle's two other brake lights were working. The officer observed no other traffic infractions, nor did the officer articulate any other reason for the stop. After stopping the vehicle, the officer discovered Fikes had been driving under the influence of alcohol. Fikes moved to suppress all of the evidence obtained from the traffic stop on the grounds the officer lacked reasonable suspicion to make the stop. The trial court denied the motion and evidence of the investigation was presented at trial. After Fikes was convicted and sentenced, he appealed.

On appeal, the defendant claimed that the statute only required one working stop lamp, and he had 2 of 3 in working condition. The statutes read that: “A person ... shall not drive a vehicle on the highways unless it is equipped with a stop lamp that meets the requirements of § 28–939.” A.R.S. § 28–927. Section 28–939 is titled “Signal Lamps and Devices,” sets forth some technical requirements for stop and other lamps, and provides in relevant part: “If a vehicle is equipped with a stop lamp or other signal lamps, the lamp or lamps shall: 1. Be maintained at all times in good working condition. 2. Not project a glaring or dazzling light.”

The court found that the statute only required one working lamp, and so they reversed the conviction. At oral argument, the state contended the legislature could have wanted to require all installed stop lamps to work because a non-functioning stop lamp could confuse other drivers. In response, the court wrote:

"However, the legislative history does not indicate that the legislature was concerned with this possibility. And nothing in the record indicates any other driver was or could have been confused here. The state also claimed this decision could discourage police officers from stopping dangerous vehicles under a public-safety or community-welfare exception. See, e.g., State v. Mendoza–Ruiz, 225 Ariz. 473, 240 P.3d 1235 (App.2010); State v. Organ, 225 Ariz. 43, 234 P.3d 611 (App.2010). But the officer here did not testify that he was motivated by public safety or community welfare." 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!

Florida Illegally Searches Grow House for Cannabis

The following case comes to DAD thanks to the watchful eyes of Florida attorney Michael Kessler. Many of the Collegemembers also handle other criminal or drug-related cases, so DAD thought this might be helpful there. It involves a motion to suppress a search warrant for grow house search, based upon a confidential informant's information.In Mesa v. State, --- So.3d ----, 2011 WL 6373006 (Fla.App. 4 Dist.) As Michael describes the holding:

The trial court erred in denying a motion to suppress where:

CI had no direct knowledge that defendant grew marijuana (rather the CI had direct knowledge than a neighboring house grew marijuana); 

CI claimed that the neighbor who grew marijuana frequently used the defendant’s pickup truck and made frequent stops at defendant’s house; 

Affiant gave no particulars to explain his claim that FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood” when compared to other homes of the same size and in the immediate area; and

Surveillance of defendant’s house revealed a wood fence around the outside air conditioning unit, and there were no facts indicating that the air conditioning unit was oversized or commercial grade.

The appellate court also found that the good-faith exception did not apply:

"We also do not agree that the good faith exception applies in this instance. Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official's belief in its existence entirely unreasonable,” the good faith exception is not applicable. Dyess v. State, 988 So.2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So.2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So.3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So.2d at 330."

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DUI Law - Connecticut Says Facebook OK to Revoke Probation

In Connecticut v. Altajir, --- A.3d ----, 2012 WL 3670 (Conn.) the defendant was originally sentenced to five years of jail, after killing her passenger in an alcohol related car accident. The defendant was 19 years old at the time of the incident. All but one of those years was stayed in favor of probation. After serving her year of jail, she was ordered to operate only cars with an interlock ignition device and that she not operate a motor vehicle without a valid license.

While on probation in 2009, she was involved in a minor motor vehicle accident. The accident did not involve alcohol use; police determined, however, that she was operating a vehicle without the requisite ignition interlock device and that she had not restored her driver's license following its temporary suspension. The defendant subsequently admitted to violating the special conditions of probation that prohibited her from engaging in that conduct.

At a subsequent dispositional hearing, the state proceeded to emphasize that the defendant's Facebook site showed numerous instances of defendant leaving the State (without permission) and "worshipping at the altar of alcohol and debauchery and lewd behavior." The State eventually admitted, over objection as to foundation, multiple pictures in support of the allegations.

The trial judge revoked probation and imposed 3 additional years of jail. On appeal, the Supreme Court of Connecticut decided that the use of the Facebook photos was properly admitted. 

“A revocation of probation hearing has two distinct components.... A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.... Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.”

"In the present case, the defendant has admitted to violations of the conditions of her probation and contests only the trial court's decision to revoke probation and reimpose three years of her original prison sentence. “The standard of review of the trial court's decision at the [dispositional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.”

"It is a fundamental sentencing principle that a sentencing “judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In keeping with this principle, we have recognized that “[a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.... Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information.” (Citations omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 20, 912 A.2d 992 (2007)."

We have cautioned, however, that “[t]he trial court's discretion ... is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability.” (Internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 650, 858 A.2d 767 (2004). As we have long recognized, in keeping with due process, a defendant “may not be sentenced on the basis of improper factors or erroneous information.” State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985). Further, “courts must be concerned not merely when a sentencing judge has relied on demonstrably false information, but [also] when the sentencing process created a significant possibility that misinformation infected the decision.” (Internal quotation marks omitted.) United States v. Lemon, 723 F.2d 922, 933 (D.C.Cir.1983). Nonetheless, “[a]s long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.”

"With respect to the threshold inquiry into reliability, we note that “[t]here is no simple formula for determining what information considered by a sentencing judge is sufficiently reliable to meet the requirements of due process. The question must be answered on a case by case basis.” (Internal quotation marks omitted.) State v.. Eric M., supra, 271 Conn. at 651. We have repeatedly affirmed, however, a general principle relevant to this case, namely, that “the absence of a denial itself provides an important [indicium] of reliability.” (Emphasis added.) United States v. Bass, 535 F.2d 110, 121 (D.C.Cir.1976) (“[T]his appellant did not dispute the truthfulness of the allegations at sentencing.... We see no reason to bar sentencing judges from considering relevant information whose accuracy is not disputed.”). "

Here, the court noted that both the defendant and her defense counsel never denied the truth of the allegatiosn, i.e. that the photos were genuine and that the time frame was correct. Rather, the defense counsel simply questioned the foundation for the photos. The Supreme Court used this 'absence of denial' against the defendant:

"This approach is in accord with a presumption applied under the general rules of evidence: “When a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part.... Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that silence gives consent the inference of assent may be made only when no other explanation is consistent with silence.” FN6 (Citations omitted; internal quotation marks omitted.) State v. Leecan, 198 Conn. 517, 522–23, 504 A.2d 480 (1986)."

Using the above (and more) the court found the Facebook images reliable and the revocation of probation appropriate:

"The evidence of reliability proffered by the state here is, at best, limited, and certainly would not be sufficient under the rules of evidence at a trial. The state contends that under the much less stringent standard for admissibility at probation proceedings its uncontested representation to the court that the defendant had darker colored hair after her incarceration, consistent with her appearance in some of the photographs, coupled with the presence of upload dates on the photographs, provided an adequate basis for the court to rely on the photographs as depictions of the defendant's behavior during probation.FN7 In refutation, however, the defendant has offered even less. At no point did the defendant deny the state's clear and repeated assertion that these photographs represented her behavior while on probation. Strikingly, in her allocution the defendant made no attempt to counter the state's accusation that she appeared in these photographs “again ... worshipping at the altar of alcohol and debauchery and lewd behavior” or to respond to the court's expressed bafflement that “she still has the audacity to go back on Facebook and show herself in a condition of being intoxicated.” Instead, the defendant admitted, partially through counsel, that she continued to drink alcohol and denied only the suggestion that she ever drove after drinking."

Therefore, the sentence and judgment of the trial court was affirmed.

Editors note: Counsel would be well advised to caution all clients that the posting of information on social networks might be used against them in any criminal (or civil proceeding).
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