DUI Appeal - Nevada Says Retrograde Extrapolation Evidence Too Dangerous for Trial

In State of Nevada v. Eighth Judicial District Court, et. al., --- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84 the trial court held that the probative value of retrograde extrapolation that was based on single sample of blood taken more than two hours after a collision was substantially outweighed by the danger of unfair prejudice, and thus precluded its admission at trial.

According to the indictment, the defendant (Armstrong) was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor. After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol.

"The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002)."

The State then filed a petition for a writ of mandamus against the judge, seeking to force the judge to admit the retrograde evidence. On appeal, the Supreme Court of Nevada affirmed, finding that even though retrograde extrapolation evidence was relevant, there was a danger of unfair prejudice.  

"Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:

(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.

46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:


If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

 Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

The Court wrote:


"We agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced."

"[T]he State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.

Concluding, the Court stated:


"Although several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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 http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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...
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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 http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - 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 http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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).
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI _ Mississippi Finds Driving Too Slow Stop Illegal

In Trejo v. State of Mississippi, --- So.3d ----, 2011 WL 6224477 (Miss.) Officer Chris Picou was traveling North on I–55 at approximately 1:17 a.m. when he came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside lane. The SUV was traveling approximately 58–60 miles per hour in an area where the minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour. Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his bright lights for the SUV to move over so that he could pass. When the driver failed to change lanes, Picou flashed his brights two more times, with ten seconds passing between each flash. After the third flash, Picou initiated his blue lights, and the driver immediately pulled onto the interstate shoulder.

The trial court denied the defendant's motion to suppress. The Court of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to make the traffic stop that led to the discovery of cocaine; thus, the trial court should have suppressed the cocaine as fruit of the poisonous tree. The Mississippi Supreme Court then reviewed the case to determine if the stop was proper under the community caretaking doctrine. 

The Supreme Court found that there was not a sufficient basis to stop the car under the community caretaking doctrine:

"Because of the risk of danger to a driver as well as the traveling public, we agree that it would be reasonable for a police officer to stop an individual who appears to be falling asleep while driving. However, the facts presented here simply do not support such an inference. There was no evidence of erratic driving. Trejo was traveling approximately 10–12 miles per hour below the maximum speed limit of 70 miles per hour and well above the minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a .m. We do not think his speed was so slow that a reasonable person would believe it indicative of distress. We also do not find that Trejo's failure to change lanes after Picou flashed his bright lights was necessarily indicative of distress, nor was it so when considered with the other facts. Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And no traffic prevented Picou from passing Trejo in the right lane. We find the following analysis by the Court of Appeals especially relevant:


Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement.... This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly pulled over to the side of the road.

Therefore, we find that the facts presented at the suppression hearing do not justify a reasonable belief that Trejo needed help or that the public was endangered, and as such, the trial court should have granted Trejo's motion to suppress."


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Georgia Decides Whether Arrest Occurred Prior to Test

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

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

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

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

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

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

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

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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

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

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

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

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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

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

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

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

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

The statute at issue is the following:

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


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

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


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


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

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

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Laws - Colorado Trial Jury Improperly Uses Dictionary

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

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


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

                    * * *

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

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


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

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!