Wednesday, December 28, 2011

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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