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."

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"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."

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DWI Appela - Does a Colorado DWAI Constitute a Prior for Felony Enhancement?

In State of Texas v. Christensen, Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas), the defendant appealed his felony conviction, claiming that a Colorado DWAI did not count as a 'prior' for enhancement purposes. In Colorado, there are 2 forms of drunk driving charges - DWAI and DUI.

Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).

DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).

DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."


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Sloppy lab work leads to Toxicology Chief resigning in Indiana

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Two weeks ago we discussed how lab errors in California, Colorado and Pennsylvania resulted in challenges to DUI convictions and the dismissal of a multitude of DUI cases. It looks like Indiana is joining the club. According to this article from IndyStar.com, the director of the Indiana State Department of Toxicology, Michael A. Wagner, has resigned amidst charges of inexcusable lab errors. Allegations include sloppy lab work, excessively long delays in processing specimens, and the failure to perform inspections as required by state law. In the article, Indianapolis defense attorney John L. Tompkins explained the basis for the allegations:

Tompkins, who teaches blood-testing issues to lawyers for their continuing education requirements, said sloppy work is not unusual from the state Department of Toxicology.

Within the past few months, he said, blood-testing reports have come back showing clotted blood being used -- a mistake -- and incomplete documentation of the testing machine's calibration.

Tompkins also contends that the department ignores a state law enacted in 2007...(which) requires the Department of Toxicology to conduct examinations of the people performing blood-alcohol detection tests and inspections of the equipment they use.

If the allegations are true, the resignation of Wagner is only the first step toward achieving justice for those who have been wrongfully convicted of DUI in Indiana. Simply put, the accusations of sloppy lab work are inexcusable. Where the life and liberty of a person accused of a crime is at stake, it is imperative that lab test results be performed carefully, accurately and in a timely manner. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!