DUII Laws - Ambien Defense Rejected Under Strict liability in Oregon

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

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

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

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

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

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

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

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

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

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

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

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

DUII Appeal - Oregon Refuses to Suppress Test Refusal

This case comes to DAD thanks to Bruce Tarbox. In State of Oregon v. Robinson, NCDD Former Regent John Henry Hingson appealed after a jury finding of guilty, arguing that the trial court should have suppressed evidence of his refusal to take the breath test and, in any event, should have declared a mistrial when the prosecutor later referred to defendant's statement that he refused to take the test on advice of counsel as an “excuse” for not taking the test.

After receiving a citizen's report about a suspected drunk driver, Officer Moyle located defendant, whose vehicle matched the caller's description, and arrested him. One of the officers, Moyle, drove defendant to jail, escorted him to a small room, and asked him whether he wanted to contact “anyone for advice.” Defendant stated that he did, and Moyle gave defendant 20 minutes to contact someone. Defendant attempted to call his attorney during that time but was unsuccessful. Moyle then told defendant that his time was up and asked defendant whether he would submit to a breath test. Defendant, unable to contact his lawyer, refused to submit to the test. He was ultimately charged with driving under the influence of intoxicants (DUII),

At 1:29 a.m., “from outside the Intoxilyzer room,” Moyle told defendant “that he needed to finish up on the phone” and that he “had about a minute longer.” At 1:30 a.m., Moyle “opened the door and told [defendant] that he needed to be done now.” Defendant responded “that he hadn't been able to contact John Henry,[[FN1] and that he wasn't—he wasn't answering and he got a weird message.”

FN1. The parties agree that “John Henry” referred to defendant's attorney, John Henry Hingson III.
Before trial, defendant moved to suppress evidence of his refusal to take the breath test on the ground that the police had not provided him with a reasonable opportunity to communicate privately with counsel before deciding whether to submit to the test. He claimed that Moyle failed to take the proper steps to afford him a reasonable opportunity to consult privately with counsel. Specifically, defendant argued that (1) Moyle failed to request that defendant submit to the breath test before providing him an opportunity to seek counsel; (2) defendant's equivocal invocation of the right to counsel-that is, answering affirmatively to the question whether he wanted to “call anyone for advice”-required Moyle to further inquire if defendant intended to contact counsel and, if so, to inform defendant that the conversation would be private; and (3) no reasonable person in defendant's position would have understood his communications with counsel to be private with the door left ajar.

At that point, Moyle began the process of obtaining breath samples. He gave defendant directions on how to provide proper samples and where to stand. He then “told him this was his opportunity to give the samples” and that “if he chose not to give the samples, it would be considered a refusal.” Defendant explained, “I can't get ahold of my attorney. I'm not saying I won't take the test, but since I can't get ahold of him I don't know what to do.” Defendant emphasized that “it was very important that [Moyle] understood that.” When Moyle presented the Intoxylizer tube to defendant and asked him to give the sample, defendant “continued to say he wasn't refusing.” Defendant “neither grabbed the tube, nor gave the sample,” and Moyle informed defendant that he “would be taking his lack of beginning to give samples as a refusal.”

The court held that the request for a breath test need not precede the suspect's opportunity to consult with an attorney:

"Neither this court nor the Oregon Supreme Court has ever endorsed a particular script or timeline that officers must follow in order to afford an arrested driver a reasonable opportunity to obtain advice of counsel before submitting to a breath test."

The appeals court concluded that the refusal was properly admitted at trial:

"Setting aside the obvious differences between an officer present in the room and a door slightly ajar, there is no basis on this record to conclude that the cracked door had any effect on defendant's efforts to contact counsel. The reason that defendant was unable to contact counsel was that his attorney “wasn't answering and he got a weird message”; that had nothing to do with the fact that the door was cracked two inches. Defendant was given a reasonable opportunity to contact an attorney but was unable to do so, through no fault of the police. Defendant's right to consult privately with an attorney extends no farther than that, and the trial court did not err in denying his motion to suppress evidence of his refusal to submit to a breath test."

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!

DUII Appeal - Oregon Allows Retrograde Extrapolation of Blood Alcohol to Prove Per Se

This case comes to DAD thanks to the watchful eyes of NCDD member Bruce Tarbox. In State of Oregon v. Eumana-Moranchel, the defendant filed a motion to exclude certain blood alcohol evidence, which was granted. The State then appealed. The defendant had blown 0.06 on the breath test. Shane Bessett, an expert in the field of alcohol absorption and dissipation, testified about the rate at which the human body absorbs and dissipates alcohol and the factors that influence absorption and dissipation. As part of that testimony, he explained Widmark's formula, a generally accepted method for calculating the rate of alcohol absorption and dissipation, and back extrapolation of BAC, a method to provide a range for a person's BAC prior to the time of the test. According to Bessett, Widmark's formula, the subject of many peer-reviewed studies and scholarly works, is used to determine the number of drinks consumed to reach a given BAC, and back extrapolation is used with Widmark's formula in instances of "any type of delay of time between time of test and time of driving." Back extrapolation of BAC relies on knowledge of a person's BAC at the time of a chemical test of the person's breath or blood.

The trial court entered an order excluding

"(1) Any testimony by state's expert witness referring to BAC content if that testimony would permit the jury to convict defendant based on his BAC.

"(2) Any testimony by state's expert witness that [defendant's] BAC at the time of the alleged stop was at least .08 percent."

On appeal, the appellate court reversed. First, they found that the expert could properly apply the principles of retrograde extrapolation, as it was accepted in the scientific community. Additionally, the court rejected the defendant's argument that a per se violation (or a presumptive inference) could only be proven by a direct alcohol measurement. They argued that previous cases involvogin HGN and cases without blood or breath tests specifically held that per se violations could only be proven by chemical analysis. The court distinguished those cases and stated:

"Here, by contrast, a chemical analysis of defendant's breath was performed and provided the basis for Bessett's opinion. Bessett's testimony simply would have provided a range for defendant's BAC at 3:08 a.m. when defendant was stopped, based on the result of that chemical analysis, which was concluded at 4:42 a.m. Unlike the HGN test in O'Key or the observations of physical indicia of impairment in Ross and Johnson, Bessett's testimony was derived, using scientific principles, from a chemical analysis of defendant's breath. That testimony was admissible."

Editor's note: Interestingly, the opinion does not reflect what factors, other than a single-point breath test, supported an ability to perform the extrapolation of the BAC to any point in time. As most practitioners would agree, a single-point alcohol test, without evidence as to the time of consumption (or other factors such as amount and type of alcohol, weight of the individual, food consumption, etc.) is usually insufficinet to arrive at an opinion based upon a reasonable degree of certainty, which is the necessary strength an opinion must have to be admissible.



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

DUI Appeal - Lidar Speed Guns OK Says Oregon Court

In State of Oregon v. Branch, --- P.3d ----, 2011 WL 2138054 (Or.App.), a non-DUI case, the court was asked to determine the admissibility of LIDAR for the purpose of measuring distance. The defense argued that the trial court erred by failing to perform a Frye/Daubert styled hearing regarding its general admissibility. On appeal, the court first explained the fundamentals of Lidar, and whether Lidar was 'scientific evidence' :
"Lidar devices “shoot” a series of laser pulses at a target, generally one every five milliseconds. When a pulse hits the target, a portion of the light from the laser beam is reflected back to the device. Lidar devices calculate the distance between the target and the device by analyzing the average time that it takes the reflected light to return to the device from the target through an algorithm based on the speed of light, which is a known constant; that process of measurement is similar to the process by which radar devices measure distance and speed. Vladimir A. Kovalev & William E. Eichinger, Elastic Lidar: Theory, Practice, and Analysis Methods 53 (2004); Mark Fischetti, Working Knowledge: Radar Guns, Sci Am, Mar 2001, at 76, 77.

Lidar devices consist of three basic components: (1) a laser diode, which serves as the source of the laser pulses; (2) a photoreceiver, which receives the reflected light and converts it into an electrical signal; and (3) a computer system, which tracks the time that elapses between the laser pulses leaving the device and the generation of the electrical signal and calculates the distance to the target. Kovalev & Eichinger, Elastic Lidar at 53. The devices have numerous applications, ranging from the everyday, e.g., measuring distances and angles on construction sites and in surveying projects, Jeff Hecht & Dick Teresi, Laser: Light of a Million Uses 154–56 (1988), to the more far reaching, e.g., measuring the distance to and orbit of the moon, J.O. Dickey et al., Lunar Laser Ranging: A Continuing Legacy of the Apollo Program, Sci, July 22, 1994, at 482, 482.

Here, as noted, the distance evidence proffered by the state is based on the premise that measurements of distance can be derived through the lidar device's use of a certain scientific principle, viz., the speed of light. Data generated by the computer in the device are then analyzed through the use of a mathematical algorithm based on that principle. As such, that distance evidence draws its convincing force from a scientific principle and would be more persuasive to the trier of fact due to its scientific nature. Accordingly, we conclude that it is scientific evidence."
The court then described its role in regards to admitting scientific evidence:

“[I]n the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding. Once a trial court has decided that proffered expert scientific testimony is scientifically valid and has admitted such evidence for the particular purpose to which it is directed, and that decision is affirmed by this court in a published opinion, it will become precedent controlling subsequent trials.”

321 Or at 293 (footnote omitted; emphasis added). Therefore, before applying the multifactor test to the evidence in question, a court must decide whether the scientific evidence is of a type for which the test outlined in Brown and O'Key does not apply: viz., evidence whose admissibility an Oregon appellate court has approved; evidence whose scientific validity is clear; evidence whose scientific validity may properly be established through judicial notice; or evidence whose prima facie scientific validity has been established legislatively. See Laird C. Kirkpatrick, Oregon Evidence § 702.04[1][b], at 606 (5th ed 2007).
Finally, it held that Lidar was a clear case for admissibility without the need for a Frye-type hearing:

"As noted above, the basic scientific principle underlying the conclusions generated by the algorithm used by a lidar device—the distance measurements—is the speed of light, one of the “fundamental constants of physics and chemistry” in our universe. Peter J. Mohr et al., CODATA Recommended Values of the Fundamental Physical Constants: 2006, at 95 tbl L (2007). The universal acceptance of using lidar devices to measure distances is shown by its widespread, everyday use in multiple contexts, including its pervasive use as a replacement for tape measures in construction projects and as a measuring device for surveying purposes. Further, as Balzer testified at trial, law enforcement departments nationwide, including the Portland Police Department for the past 13 years, routinely use lidar devices for forensic purposes, e.g., to measure distances and the speed of automobiles. Put succinctly, the employment of a lidar device to measure distance is far from a novel means of obtaining those measurements. Further, and importantly, although defendant argues that the state failed to present evidence at trial to establish that the scientific principles behind the development and use of lidar devices to measure distance are universally accepted in the scientific community, he does not substantively challenge on appeal those principles or the scientific validity of using lidar devices to measure distances."

Therefore, the appeals court found that there was no error in the admission of the lidar device's measurement of distance in the case sub judice.


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

DUI Appeal -Oregon DUII Cracked Windshield Stop Challenged

In State of Oregon v. Elmore, --- P.3d ----, 2011 WL 891677 (Or.App.) the defendant entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress challenging the stop of his car. At the motion to suppress, the following facts and testimony was adduced:

On the morning of June 4, 2007, Deputy Cochran saw defendant driving his vehicle on a highway. Cochran testified that he noticed “a large crack in the windshield, which is a violation of statute, and so I pulled him over for that.” Defendant testified that the crack “starts * * * on the driver's side four inches up from the bottom of the windshield. And then it progressively goes to the passenger side heading down towards the bottom of the windshield.” According to defendant, the crack was “18 inches to two feet” long. When Cochran was asked how “a crack like that [would] obstruct the vision either into or out of the vehicle,” he testified:

“[I]t depends. Some people drive around with big spiderwebs, that wasn't what this case was, you know, that would be more apparent. But anything as simple as one line, it may be in your direction of vision, it may be on the side of the window where you're looking through as you're turning or something like that. Another problem is because I had a cracked windshield with just one line that was cracked from a baseball game, is that cracked windshield will act like, sometimes like a prism with that crack and you get cracked glass and when the sunlight shines through it it will, you know, glint and glare off of that crack which is distracting.”

The applicable Oregon statute prohibits driving a vehicle when the windshield is obstructed by “any material that prohibits or impairs the ability to see into or out of the vehicle * * *. This subsection applies to any sign, poster, one-way glass, adhesive film, glaze application or other material if the material prohibits or impairs the ability to see into or out of the vehicle.”

At the suppression hearing, defendant's attorney argued that, under that statute, a crack is not a “material that prohibits or impairs the ability to see into or out of the vehicle.” On appeal, the court agreed:

“Material,” in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be “ upon any vehicle window.” ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute “material”- viz., “any sign, poster, one-way glass, adhesive film, glaze application”-all of which are things of physical substance. Id.

Applying that construction to this case, we readily conclude that a crack is not a “material.” As defendant posits, “a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.” Here, the deputy stopped defendant because he saw a crack in defendant's windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.

On appeal, the State also tried to argue that, even if the officer's reliance on that statute was wrong, there were alternative statutes that justified the stop. Refusing to allow the alternative bases, the appeals court said:

"[W]e decline to address the state's alternative contention. The state's argument in the trial court focused exclusively on ORS 815.220-that is, the state did not point to any of the statutes that it now raises on appeal. Had the state attempted to rely on those statutes in the trial court, defendant might well have developed the record differently. See Tiffin, 202 Or.App. at 202 (declining to address the state's alternative “argument that the stop was lawful based on the officers' reasonable suspicion that defendant was driving under the influence because the state did not make that argument to the trial court”; reasoning that, “[h]ad the state done so, defendant might have developed a different record below”).

NOTE: this appeal is good for 2 reasons - the interpretation of the statute was not bent to support the stop itself, and the State was prohibited from its last-ditch attempt to argue alternative means for the stop that were not raised at a time when the defense could have argued against them. It is nice to see a court enforcing appropriate rules of procedure even-handedly.


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!