DUI Laws - Hawaiii Finds No Probable Cause for DUI Arrest

In Hawaii v. Sereno, 125 Hawai'i 246, 257 P.3d 1223 (Table), 2011 WL 2464753 (Hawai'i App.), the trial court granted a motion to suppress, finding no probable cause to arrest for DUI, after the officer testified that the defendant's car was struck by another vehicle, and then collided with and went into a house. The judge found that, without evidence that the defendant was at fault, the accident itself was of no consequence. The court found that the instances of evasiveness by the defendant were inconsequential as well. Finally, the court found the odor, eyes, and flushed face insufficient for an arrest. the trial court also refused to infer consciousness of guilt from the defendants refusal to perform field sobriety tests.



On appeal, the granting of the motion to suppress was affirmed:



"Although Officer Arnds did not “acknowledge that he did not observe [Sereno's] speech was slurred,” considering that the officer did not observe Sereno to have any problems with balance or fumbling of paperwork, that Sereno “produced all documentation as requested” and “responded to all questions[,]” where “all answers were appropriate and consistent[;]”that the district court, upon viewing the video of the accident scene found “that [Sereno] displayed no overt indicia of intoxication or impairment due to alcohol[;]”that “[t]he videographer testified that he could not smell alcohol from [Sereno] from a couple of feet distance[;]”and that Sereno had admitted to Officer Arnds that he had been drinking, the district court's conclusion that Sereno had nothing to hide “by turning away or maintaining distance” from the officer and declining to “infer a consciousness of guilt” therefrom is not wrong."
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DWI Appeal - Minnesota Refusal Reversed Due to Erroneous Instruction on Probable Cause

In State of Minnesota v. Koppi, --- N.W.2d ----, 2011 WL 2200762 (Minn.) the Supreme Court of Minnesota reversed a DWI Refusal, holding that the jury was improperly instructed on probable cause, since the instruction was based on the arresting officer's subjective beliefs rather than a an objective person's reasonable belief. The district court instructed the jury that “[p]robable cause means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.”

The high court found that the instruction contained three flaws:

"First, it does not require the officer to recite actual observations and circumstances supporting a finding of probable cause. Second, it fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer. Third, the instruction erroneously requires that an officer believe a driver “was more likely than not” driving while impaired, a standard that is at odds with case law on probable cause requiring only an “honest and strong suspicion” of criminal activity."

The first flaw is that the jury instruction fails to require an officer to articulate the specific observations and circumstances that support a finding of probable cause. Under the plain language of the jury instruction, the probable cause element of test refusal is satisfied if the officer can state the reason for his or her belief that the suspect was driving while impaired. If an officer were to testify that he or she had a gut feeling that the defendant was driving while impaired, the jury instruction would arguably be satisfied because the officer was able to “explain the reason” why the officer believed probable cause existed. Cf. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (“Mere suspicion is insufficient to establish probable cause.”). This aspect of the instruction is erroneous because the law requires the fact-finder to evaluate probable cause based on the totality of the facts and circumstances; it is not sufficient that the officer can simply “explain the reason” why he or she believed there was probable cause to request a chemical test from a suspect.

The second flaw is that CRIMJIG 29.28 does not require the jury to determine whether a reasonable police officer would find probable cause that Koppi was driving while impaired. The instruction permitted the jury to take Officer Hunter at his word that he believed Koppi was driving while impaired. As stated above, however, what matters is whether “there was objective probable cause, not whether the officers subjectively felt that they had probable cause.” Speak, 339 N.W.2d at 745. A properly instructed jury must consider whether the totality of the facts and circumstances would lead a reasonable officer to entertain an honest and strong suspicion that Koppi was “driving, operating, or in physical control of a motor vehicle” while impaired. See Minn.Stat. § 169A.51, subd. 1(b).

The third flaw is that we have rejected the standard of probable cause used in the jury instruction—that it is more likely than not that the suspect has committed a crime. See Harris, 589 N.W.2d at 791. Rather, probable cause requires that, under the totality of the circumstances, “a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn.2000) (citation omitted) (internal quotation marks omitted). The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. See id.; see also Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”). The “more likely than not” standard was an incorrect statement of the law because probable cause “is incapable of precise definition or quantification into percentages [as] it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). The district court therefore erred by giving the jury an erroneous standard by which to evaluate the totality of the circumstances surrounding Koppi's arrest.

Continuing, the court stated:

“[T]he reasonableness of the officer's actions is an objective inquiry,” even if reasonableness is evaluated in light of an officer's training and experience. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (emphasis added) (citation omitted). The actual, subjective beliefs of the officer are not the focus in evaluating reasonableness. See State v. Speak, 339 N.W.2d 741, 745 (Minn.1983) (holding that relevant inquiry for a probable cause analysis is “whether there was objective probable cause, not whether the officers subjectively felt that they had probable cause”). Rather, the probable cause standard asks whether the totality of the facts and circumstances known would lead a reasonable officer “to entertain an honest and strong suspicion” that the suspect has committed a crime. State v. Harris, 589 N.W.2d 782, 791 (Minn.1999) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)). Answering that question is “an objective, not subjective, inquiry.”

The jury instruction was the approved instruction from 10A Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp.2009). The supreme court concluded:

"For the foregoing reasons, we hold that the district court abused its discretion in instructing the jury on probable cause in accordance with the language of CRIMJIG 29.28. Because we cannot say that the instructional error was harmless beyond a reasonable doubt, we reverse Koppi's conviction for test refusal and remand for further proceedings consistent with this opinion.

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DUI Appeal - Kansas One-Legged Man Loses Preliminary Hearing

In State of Kansas v. Adams, Slip Copy, 2011 WL 1475976 (Table) (Kan.App.) the State appealed the dismissal of a complaint for DUI following a finding of no probable cause. Around 10:30 one evening in September 2008, Officer Jeffrey Browne, on duty as a Hoisington police officer, received a telephone call from his wife. She was driving toward town and reported a car had nearly sideswiped her as she passed it. Before that, the car had swerved back and forth in its lane. She also told him the car's bright lights came on and off as she was passing. Both his wife's car and the car she had passed drove by Officer Browne's location and he pulled in behind the car his wife had passed. The officer saw the brake lights come on several times and the car suddenly braked as it turned onto a different street. He noted the tag light was not working but saw no other infractions. Officer Brown stopped the car.
Officer Browne testified Adams was not unsteady while he exited the vehicle and his speech was fair. However, Adams had an odor of alcohol, his clothes were dirty, his eyes were bloodshot and glazed, he had trouble walking, and there was a slight slur to his speech. Officer Browne asked for Adams' driving license, but Adams did not have it with him. Adams gave Officer Browne his insurance papers without fumbling.

At some point, Officer Browne asked Adams about the swerving. Adams explained that he was running out of gas. Later, Officer Browne testified that he did not believe Adams told him he was trying to slosh gas residue in the tank so that he could get gas into the engine.

Officer Browne testified Adams walked with a limp and used the car for balance. Officer Browne admitted, however, that Adams told him he does not have much of a left leg. This was the leg Adams was having trouble moving. Officer Browne said Adams swayed slightly while standing. When Officer Browne asked Adams to perform field sobriety tests, Adams agreed but noted he had only one leg. Adams was unable to perform the walk-and-turn test and the one-leg test. Officer Browne testified Adams performed the horizontal gaze nystagmus test but provided no additional testimony on this subject as a result of defense counsel's objection to the evidence.

Officer Browne testified he asked Adams to take a preliminary breath test and Adams refused. The appeals court rationalized that since there were no findings indicating a lack of credibility, then the trial court was obligated to consider the four factors of which there was no dispute: Officer Browne's testimony about the braking by Adams, Adams' bloodshot and glazed eyes, his slurred speech, and his swaying while standing. The appeals court was critical of the fact that the trial court simply did not address those factors.

Kansas' law on preliminary hearings and probable cause is unusual (at least to this author):

"Because this was a preliminary hearing, the rules are somewhat different. When the district court evaluates the evidence presented at a preliminary hearing, the court must consider the defense and pass judgment on the credibility and competency of all witnesses. When there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony that is most favorable to the State."

Concluding, the court stated:

"Here, there was a conflict between the testimony of Officer Browne's wife about Adams' erratic driving within his lane of traffic and Adams' explanation that he was almost out of gas. That created a question of fact for the jury and the court was required to accept the version of the testimony most favorable to the State. In this case, that would be evidence of impaired driving caused by alcohol consumption.* * * * To show probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief that the defendant is guilty. Corbett, 31 Kan.App.2d at 71. We find there was sufficient evidence here.* * * * We reverse the dismissal of all counts and remand the case to the district court."
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DWI Appeal - Texas Arrest OK for Reckless Driving

In Schuring v. State of Texas, Not Reported in S.W.3d, 2011 WL 1331851 (Tex.App.-Fort Worth), the defendant was in a rollover accident, where he was given an HGN test while strapped to a backboard and arrested for DWI. He admitted that he was driving too fast and lost control. On appeal, he claimed that the officer lacked probable cause to arrest, arguing that the HGN test was invalid. On appeal, the Texas court did a "Texas two-step" around the defendant's claim:

"[T]he offense for which there is probable cause to arrest does not have to be the same offense for which the person is arrested.FN17 That is, the officer's testimony that he arrested Appellant for DWI “is inconsequential because we review whether the facts and circumstances known to the officer[ ] objectively constituted a lawful basis for [the] arrest, regardless of the officer['s] subjective understanding of the motivation or purpose of [his] actions.”

Footnote 17 stated: FN17. See Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim.App.1995) (“[A] stop will not be invalidated based on the subjective motivation of a police officer so long as there is an objectively valid basis for the stop.”); Campbell v. State, 325 S.W.3d 223, 240 (Tex.App.-Fort Worth 2010, no pet.) (Dauphinot, J., concurring) (noting in DWI case that officer had probable cause to arrest Campbell for reckless driving)."

Concluding, the appeals court wrote:

"The facts known to Officer Moss at the time of Appellant's arrest gave the officer probable cause to arrest Appellant for reckless driving.FN20 Consequently, we do not address the validity of the trial court's conclusions that Officer Moss could have arrested Appellant for public intoxication or had probable cause to arrest him for DWI.FN21 Because Officer Moss had probable cause to arrest Appellant for reckless driving, we hold that the trial court did not err by denying Appellant's motion to suppress.

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DUI Appeal of the Day (DAD) - No Collateral Estoppel says S. Ct. Wyoming

In Elliott v. State of Wyoming, --- P.3d ----, 2011 WL 662662 (Wyo.), 2011 WY 32, NCDD member Michael Vang obtained a ruling in the implied consent hearing, that the arresting officer lacked probable cause to charge his client with DWI. Vang sought to enforce this fining in the separate criminal action. The matter came before the Supreme Court of Wyoming as a certified question. As rephrased by the Court, the question to be decided was:

Does collateral estoppel apply to an Office of Administrative Hearing [examiner's] ruling that found an officer lacked probable cause to arrest a defendant under Wyoming's implied consent statute, for the same incidents resulting in the defendant's conditional plea for DWUI?

[Elliott] and his attorney were the only participants in any of the implied consent hearings resulting in the findings of no probable cause to arrest for DWUI that [Elliott] was attempting to use as collateral estoppel and res judicata as a basis to dismiss the underlying DWUI charge that was the basis of the conditional plea and if the issue is resolved in favor of [Elliott] it is a dispositive issue that will result in dismissal. The Supreme Court acknowledged that the preclusion doctrine of collateral estoppel applies in the administrative context. Citing to the Restatement, the court noted:

Even if the elements of collateral estoppel are met, several exceptions may apply:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:

(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or

(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or

(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or

(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or

(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Restatement (Second) of Judgments § 28 (1980).

In declining to apply collateral estoppel, the Court pointed out the following:

"[W]e disagree that privity similarly exists between WYDOT and the offices of the county and district attorneys involved. “Privity is not established ... from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts.” 47 Am.Jur.2d, Judgments § 589. Here, WYDOT is only granted the authority to suspend a driver's license after an arrest and to thereafter defend that suspension in an administrative context. See Wyo. Stat. Ann. §§ 16-3-103, 16-3-104, 16-3-112; 31-5-233; 31-6-102, 31-6-103 (LexisNexis 2009). On the other hand, the county and district attorneys are responsible for prosecuting, investigating, and representing the State of Wyoming in all criminal matters." (Editors comment: this 'difference' is farcical: the mere fact that 'one is named Jones, and one is named Smith' really doesn't explain why privity does not exist between two agencies performing the same task while interpreting the same statutes and the same issues and the same case opinions and the same constitutional issues, albeit it they do so in two different proceedings)

Additionally, the court found that the prosecutors were denied the full and fair opportunity to litigate the issue:

"[W]e are persuaded that county and district attorneys, because of the nature of their offices, are denied a full and fair opportunity to litigate any issue in an administrative hearing."

Quoting from an Illinois case and adopting its rationale, the court repeated the holding in People v. Moore:

"The court explained that the legislative purpose of license suspension hearings was to provide an expeditious means of having a defendant's case heard in the context of an extremely limited scope. ( People v. Moore (1990), 138 Ill.2d 162, 169.) In finding that the doctrine of collateral estoppel did not preclude the litigation of certain issues previously decided at the defendant's suspension hearing, the court stated:

“[I]f these proceedings were given preclusive effect, it would render meaningless this legislative purpose. That is, the practical effect would be that the State could not rely on the sworn police report at these proceedings but, rather, would be required to have the arresting officer, and other witnesses, testify. The goal of conducting swift hearings for the sole purpose of determining whether a court has sufficient reason to rescind summary suspension of a motorist's driving privileges will be thwarted. Given this probable result, and the fact that no injustice will be done to either party by declining to give preclusive effect to these license suspension hearings, we decline to do so.”

All is not lost, however. The Montana Supreme Court's ruling explained why collateral estoppel could not flow from an administrative hearing to the criminal case. On the other hand, the rationale for so doing leaves it clear that collateral estoppel from the criminal case to the administrative hearing could still be applied, in those unusual circumstances where the criminal ruling goes first. On a personal note, I wish to commend Mr. Vang for his efforts in this arena, as many of us followed his efforts as this matter unfolded...


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Hearsay Not Admissible to Establish PC at IC Hearings

In South Carolina Department of Motor Vehicles v. Larson, --- S.E.2d ----, 2011 WL 204795 (S.C.) the issue was whether a non-testifying Sergeant’s observations of the driver could be admitted through the testimony of another officer at the implied consent hearing, even if it constituted hearsay. Recognizing that such hearsay was admissible for probable cause purposes at a preliminary hearing in the criminal case, the Supreme Court of South Carolina still said NO! The Court stated that by law, the IC hearing was governed by the ordinary rules of evidence, which bar hearsay. The court distinguished the important differences between a preliminary hearing, and a drivers license suspension hearing, and also distinguished the caselaw offered by the State in support of using hearsay at the implied consent hearing:

“We find these cases are inapplicable to a driver's license suspension hearing. A preliminary hearing, as its name suggests, is not a final adjudication of a defendant's rights. Instead, a preliminary hearing merely serves as a determination of whether there is sufficient evidence to subject a defendant to further criminal proceedings. See Rule 2, SCRCrimP (providing for preliminary hearings and stating in part that “Any defendant charged with a crime not triable by a magistrate shall be brought before a magistrate and shall be given notice of his right to a preliminary hearing solely to determine whether sufficient evidence exists to warrant the defendant's detention and trial”); State v. Ramsey, 381 S.C. 375, 376, 673 S.E.2d 428, 428-29 (2009) ( “The purpose of a preliminary examination is to determine whether probable cause exists to believe that the defendant committed the crime and to warrant the defendant's subsequent trial.”).

In contrast, a license-suspension hearing may potentially terminate an important interest of the licensee. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (“Once licenses are issued, ..., their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.”); Hipp v. S.C. Dep't of Motor Vehicles, 381 S.C. 323, 325, 673 S.E.2d 416, 417 (2009) (“A person's interest in his driver's license is property that a state may not take away without satisfying the requirements of due process.”).

Because a license-suspension hearing constitutes a final adjudication of an important interest, we believe the Legislature promulgated section 56-5-2951 in such a way that guards against an automatic or rote elimination of this interest. Specifically, this section sets forth several statutory prerequisites that must be established before a Hearing Officer suspends a citizen's driver's license following an arrest for DUI. In the instant case, a determination of whether McCarson was lawfully arrested or detained for DUI. By including this element in section 56-5-2951, the Legislature placed the burden on the Department to present sufficient evidence of probable cause.

Given the significant difference between a preliminary hearing and a license-suspension hearing, we decline to extend the probable cause cases relied on by the Department to circumvent the well-established rules against hearsay. Thus, in proving that a driver was lawfully arrested or detained for DUI, the Department must present admissible evidence of probable cause. If we were to find otherwise, we would essentially render meaningless the procedure established by our Legislature in section 56-5-2951.”

Many states have statutes that read “The hearing shall proceed in the same manner as in other civil proceedings” or language to that effect. Perhaps it is time for the defense bar to re-visit to your respective states’ forums for these suspension hearings, and ask that they too bar hearsay.


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Illinois Supreme Court Issues Decision on DUI & HGN

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In February, the Illinois Supreme Court handed down its decision in People v. McKown, a case appealed by our office on behalf of our client, Joanne McKown. In McKown, the court considered the following arguments that we asserted on behalf of our client:

(1) the HGN test is not a reliable indicator of impairment due to alcohol and, therefore, does not meet the Frye standard; (2) even if the HGN test does meet the Frye standard, admissibility of test results should be limited to showing probable cause for arrest; (3) if HGN test results are admissible at trial, the court must strictly enforce standards for performance of the test; (4) police officers who testify regarding HGN test results are testifying as expert witnesses and should not be considered qualified unless they have received extensive training; (5) the trial court’s findings of fact in the Frye hearing were erroneous; and (6) the HGN test results should not have been admitted at her trial because the officer did not properly administer the test.

The most important conclusion reached by the court was that HGN test results are not proof of actual impairment, and instead can be used only for the possibility of impairment. Other significant conclusions reached by the court were that:

• The HGN test cannot be used to establish an alcohol concentration or to suggest a concentration greater than 0.08%
• The HGN test now requires strict compliance with NHTSA (in other words, police officers can no longer claim “I don’t know what NHTSA is, but I did it according to my training”….)
• The trial court must assess each matter on a case by case basis and can rule that the admission of HGN test is inadmissible on grounds of undue prejudice
• Police officers must be properly trained under NHTSA protocol
• The HGN test is not properly performed while a subject is seated, as explained by the State's expert.

You can learn more about this important decision via this Illinois Lawyer Now article published by the Illinois State Bar Association.

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