The issue of whether crossing a lane line constitutes a basis for stopping a vehicle seems to re-raise itself multiple times each year. In State of Montana v. Cameron, --- P.3d ----, 2011 WL 5353102 (Mont.), 2011 MT 276, the Supreme Court of Montana took their view of it. Here, the defendant crossed the centerline four times in the space of five miles prior to being stopped. The trial court denied the motion to suppress, determining that while Cameron did not commit a specific traffic offense, Deputy Robinson had sufficient facts to form a particularized suspicion of wrongdoing to initiate an investigative stop. In so holding, the court relied on a prior Montana case (Weer v. State, 2010 MT 232, ¶ 7, 358 Mont. 130, 244 P.3d 311) wherein it was held, based on similar facts, that a particularized suspicion existed. Both the stop in Weer and the stop in the instant case occurred at approximately 1:00 a.m. on a Saturday morning. Moreover, just as Cameron's vehicle drifted onto the center line on four separate occasions, the officer following Weer observed Weer's vehicle “swerve twice towards the double-yellow centerline, and then, on the third instance, Weer drove onto the centerline.” Weer, ¶ 3.
On appeal, the defendant claimed that other precedent in Montana held that such conduct did not form a reasonable suspicion for stopping the vehicle. The Supreme Court responded as follows:
"Cameron maintains that the court should have relied on State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, and Morris v. State, 2001 MT 13, 304 Mont. 114, 18 P.3d 1003, because, according to Cameron, they are both factually similar to his case. However, Cameron ignores the fact that this Court recently declined to rely on Lafferty and Morris as precedent because those cases utilized flawed approaches to particularized suspicion. Flynn, ¶¶ 10, 12.
"In Lafferty, an officer stopped the defendant's vehicle after observing the vehicle cross the fog line on the right side of the highway twice and drive on the fog line once. Lafferty, ¶ 4. We concluded in Lafferty that the officer lacked particularized suspicion based in part on the defendant's testimony that she merely crossed the fog line as she observed the officer's patrol car come up behind her. Lafferty, ¶ 17. In Morris, an officer stopped the defendant's vehicle after observing the vehicle drift across the line separating the eastbound lanes of traffic. The officer then observed the vehicle drift and touch the fog line on the other side of the lane. Morris, ¶ 2. We concluded in Morris that the officer lacked particularized suspicion based in part on the defendant's testimony that the road was rutted, and that his usual practice was to attempt to avoid potholes on the road. Morris ¶ 10.
"In declining to rely on Lafferty and Morris, we pointed out in Flynn that when we first adopted the particularized suspicion standard for vehicular stops, we recognized that the inquiry turned on what the officer knew, observed, inferred, and ultimately suspected, not what the defendant later testified to. Flynn, ¶ 12 (citing State v. Gopher, 193 Mont. 189, 193–94, 631 P.2d 293, 296 (1981)). To that end, we stated in Flynn that
[a] defendant's subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion. The particularized suspicion inquiry is a fact based assessment of the objective quantity, content and reliability of information available to the officer. An officer in the field need not consider every possible innocent explanation or legal exception before concluding that particularized suspicion exists.
Flynn, 1 (internal citations and quotation marks omitted). Thus, contrary to Cameron's contentions, we conclude that Lafferty and Morris cannot be applied here, and the District Court was correct not to rely on those cases, but to rely on Weer instead.
Thus, the court found that even though crossing the center line was not a violation of law per se, it did constitute sufficient reasonable suspicion to stop the vehicle for possible impaired driving:
"In the instant case, Deputy Robinson testified at the hearing on Cameron's motion to suppress that in his ten years as a deputy sheriff, he has investigated around 175 DUIs. He also testified that the majority of the DUIs that he has investigated occurred on Friday and Saturday nights between the hours of 10:00 p.m. and 3:00 a.m. “which are high times for driving while under the influence of alcohol.” Deputy Robinson stated that when he saw Cameron's vehicle touch the centerline the first time, he did not think it suspicious, but when the vehicle drifted towards the center line a second and third time and stayed on the centerline for 100 yards, he considered the actions dangerous since there were other cars on the road at the time.
Editor's Note: if there is one common theme that can be drawn from the plethora of cases on the subject of stops, lane lines and weaving, it appears to be as follows: While a brief momentary crossing of a lane line may not be a violation of the improper lane usage law (when there is no danger to others on the roadway) and hence may not form a reasonable basis for a vehicle stop, continuous weaving (taken in conjunction with other facts such as time of day) can be a stand-alone basis to stop a vehicle as reasonable suspicion of impaired driving.
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Showing posts with label aggravated dui. Show all posts
Showing posts with label aggravated dui. Show all posts
Tuesday, November 22, 2011
Monday, November 07, 2011
DUI Laws - Louisiana Increases Sentence on Appeal
On appeal, the appellate court noted that in previous cases, the Louisiana Supreme Court had addressed the legislature's continuing reassessment of vehicular homicide:
"When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La. R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S. 14:32.1. See, e.g., State v. Pelt, 448 So.2d 1294 (La.1984); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Wilcoxon, 26,126 (La.App. 2nd Cir.6/22/94), 639 So.2d 385, writ denied, 94–1961 (La.12/16/94), 648 So.2d 386; State v. Wry, 591 So.2d 774 (La.App. 2nd Cir.1991); State v. Yates, 574 So.2d 566 (La.App. 3rd Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Rock, 571 So.2d 908 (La.App. 5th Cir.1990), writ denied, 577 So.2d 49 (La.1991); State v. Williams, 546 So.2d 494 (La.App. 4th Cir.1989), writ denied, 553 So.2d 470 (La .1989).
"Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion.”).
"The broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” [ State v.] Telsee, 425 So.2d [1251 (La.1983) ] at 1254, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Id.
Noting that the defendant in this case had at least four different illegal drugs in his system, his limited education, has three prior felonies, etc., the appeals court found the sentence of 30 years hard labor not too excessive.
But, they didn't stop there. Instead, they found the sentence illegally lenient. Since the trial court failed to add on the statutory fines and counseling, the case was remanded to add the counseling and statutory fines. Yikes.
Thursday, September 08, 2011
DUI Law - Florida Rules Prosecutor Improperly Introduced Felony Conviction
"Have you ever been convicted of a Felony?" said the prosecutor, possessing a NCIC record (but no certified copy of a conviction). "I am not sure" replied the defendant. In Barcomb v. State of Florida, the trial court held that since the prosecutor had a good faith basis to believe that the defendant had received 5 year's probation based on the NCIC report, there was no error in asking. Further, once the defendant indicated that he was unsure, the topic was dropped completely. Defendant was eventually convicted by the jury of driving while suspended from DUI.
On appeal, the Florida court reversed. It stated that "an attorney may ask a witness, “Have you ever been convicted of a felony?” If the witness answers affirmatively, he may then be asked “How many times?” He may also be asked if he has been convicted of a misdemeanor involving dishonesty, and if he answers “yes”, how many times. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), limited by Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994)."
The court continued:
“Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes.” Cummings, 412 So.2d at 439 (emphasis supplied). Accord, Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991), decision approved on other grounds, 612 So.2d 555 (Fla.1992). “The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true.” Alvarez v. State, 467 So.2d 455, 456 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985), disapproved of on other grounds, Riechmann v. State, 581 So.2d 133 (Fla.1991). Similarly, Charles Ehrhardt, Florida Evidence, section 610.6 (2007 Ed.), supports the need to have both the knowledge and a certified copy of a conviction before the questions may be asked:
Although section 90.610 speaks only to which convictions are admissible to impeach and not to the procedure that should be followed during the trial in examining a witness about prior convictions, Florida appellate decisions have established the method of using the convictions. Questions regarding past convictions should not be asked unless counsel has knowledge of a conviction and possesses a certified copy of the judgment of conviction.
The federal courts are in accord, explaining that “to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error....” See Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir.1967); cited with approval in U.S. v. Constant, 501 F.2d 1284, 1288 (5th Cir.1974). (bold in original)
Editors Note: The rule requiring a litigant to prove up any fact asserted in a question, in the face of a denial by the witness, is not new. There are many other instances where such a rule can be employed in a DUI case, and defense counel should immediately object and move for a mistrial whenever a pejorative fact is asserted in a question and is thereafter unproven.
Monday, August 08, 2011
DUI Laws - Vermont Says Boom-Lift is a Vehicle Under Drunk-Driving Laws
In State of Vermont v. Smith, --- A.3d ----, 2011 WL 3198820 (Vt.), 2011 VT 83, the trial court dismissed the charges of DUI and driving while suspended based upon the fact that a boom-lift is not a "motor vehicle". A boom lift is a machine with four wheels and a gas or oil fueled motor. The operator stands in the bucket at the end of the lift arm to engage the motor to travel to the precise position required for work. The maximum speed of movement of the boom lift is approximately five miles per hour. Once the machine is in the correct location, the lift arm operates by battery or hydraulic power. While in the bucket, the operator maneuvers the arm and the machine base using levers, joysticks, toggle switches, and buttons. A boom lift contains several safety measures including one that automatically stops it when a foot pedal is released and another that locks the machine in place when it is imbalanced. The State appealed.
On appeal, the Supreme Court of Vermont found that a boom-lift is in fact a "motor vehicle" based upon the definition of the same under Vermont law. “Motor vehicle” is defined as “all vehicles propelled or drawn by power other than muscular power, except farm tractors, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, or tracked vehicles or electric personal assistive mobility devices.”
Applying a doctrine commonly referred to as "expressio unius est exclusio alterius", the court found that the boom-lift was not excluded from the definition:
"If the Legislature had intended that exceptions comparable to those explicitly mentioned be recognized, it could have drafted the language to make the list of exceptions nonexclusive. Without such an authorization, we have held that “where express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation of the statute.... [A]n exception in a statute amounts to an affirmation of the application of its provision to all other cases not excepted, and excludes all other exceptions.”
Concluding, the court stated:
"While defendant correctly states that statutes must be construed to avoid irrational results and effect legislative intent, these concerns are not implicated in this case. Nor do we have to analyze the statutory language in comparison with every kind of motorized equipment in order to resolve this case. Key features of a boom lift's design are its ability to transport itself and its operator to the proper location at the building site where the lift arm is needed, and its operation from the bucket. Without this transportation function, the lift would be extremely difficult to use because it could not be easily moved to different places at a work site. That the machine travels at a relatively slow speed and is generally driven only relatively short distances is immaterial. Just as the broken-down car in Tacey was assessed based upon its design rather than its temporary condition, so should the boom lift be assessed by its capability to be used for motorized transport rather than the frequency of such use in comparison to the lift function."
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Saturday, July 16, 2011
DUI Appeal - Illinois Says All Cars That Stop On Shoulder (Even Temporarily) Are Legally Subject to Police Seizures
In People of Illinois v. Dittmar, Nos. 2–09–1112, 2–09–1304, June 15, 2011, Appeal from the Circuit Court of Stephenson County, the parties presnted the following evidence in the police report by stipulation:
[I]f called as a witness, Stephenson County sheriff's deputy Shan MacAdam, the arresting officer, would testify as follows:
The video displayed that, as he pulled onto the shoulder behind defendant's car, the officer activated his overhead emergency lights and gave the dispatcher the make, model, and license plate number of the car.
Reviewing Illinois law, the court stated as follows:
In People v. McDonough, 239 Ill.2d 260, 272 (2010), the supreme court identified a two-prong test for judging whether an encounter qualifies as a community-caretaking endeavor:
The appeals court further explained that a community caretaking function simply because there is a seizure:
As the supreme court in Luedemann clarified, the community-caretaking doctrine justifies not consensual encounters—which need no justification under the constitution—but seizures. See Luedemann, 222 Ill.2d at 548 (“It is clear, then, that the ‘community caretaking’ doctrine is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.”). The error that Luedemann corrected was at one time prevalent in the appellate court, including this district. For instance, our decision in Lee, which defendant cited below and continues to cite on appeal, committed the error. See Lee, 291 Ill.App.3d at 54 (“Once a seizure has occurred, an officer is not acting in his community caretak[ing] function, even if his original intention had nothing to do with detection or investigation of a crime.).” Lee's conception of community-caretaking encounters was abandoned by this district even before Luedemann was decided in 2006. See People v. Mitchell, 355 Ill.App.3d 1030, 1033 (2nd Dist.2005) (noting that the community-caretaking doctrine “has nothing to do with consensual encounters; for, by their very nature, consensual encounters need no justification. Treating it as synonymous with consensual encounters deprives the doctrine of any analytical content.”).
The court stated the following test: The question * * * is not how regularly the police conduct in question occurs as part of crime detection, investigation, or prevention, but whether the conduct is, in the context at issue, so lacking an objectively grounded public-safety purpose that the officer could not be “performing some function other than the investigation of a crime” ( McDonough, 239 Ill.2d at 272).
Concluding that this case was a proper community caretaking seizure, the court stated:
"We recognize that, unlike in the cases cited by the State, MacAdam did not come upon a vehicle already at rest, without knowledge of how long it had been there ( McDonough, Laake ), or have specific information that the driver might be impaired or in distress ( Robinson ). The vehicle came to a stop while MacAdam observed it, and he had no specific information about the travelers aside from what he saw. Nonetheless, MacAdam had reason to believe that the occupants might need assistance. Even if MacAdam could not be certain that there was an emergency, his lack of certainty had to be weighed against the likelihood that, if he did not stop to inquire, the travelers would not receive assistance for some time, given the rural location. MacAdam had also to consider the potential hazards to the travelers from passing traffic, given that no lights were activated on their car despite the dim ambient light.
"The public interest served by MacAdam's actions more than outweighed the intrusion. See McDonough, 239 Ill.2d at 272 (court must balance a citizen's interest in being free from police intrusion against the public interest in having police perform services in addition to crime detection and prevention); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (“[T]he court must balance the public need and interest against the degree and nature of the intrusion upon the citizen's privacy.”). The video of the stop shows that approximately 36 seconds elapsed between MacAdam's activating his emergency lights and reaching the driver's door of the car—at which point, defendant does not contest, MacAdam made observations that justified further detention of defendant, resulting ultimately in his arrest. There was an ample public-safety justification for those 36 seconds."
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[I]f called as a witness, Stephenson County sheriff's deputy Shan MacAdam, the arresting officer, would testify as follows:
“While on routine patrol[,] I was traveling north bound on Route 26 north of McConnell Road when I observed an oncoming south bound vehicle. The vehicle was traveling at a slow speed, [and] the right turn signal was activated a very short distance before the vehicles met. The vehicle, a white Chevrolet Cavalier convertible[,] had slowed greatly and was pulling to the shoulder of the roadway as I passed. The squad [car] was also traveling slowly[,] and I observed a white hat on the head of the driver.
After passing the vehicle[,] I turned the squad [car] around to check if the vehicle was having mechanical problems, or if there were problems with the occupants. As I approached the rear of the car[,] I observed the subject with the white hat walking from the driver door around the rear of the car and to the right passenger door. Another subject from the right side of the car was walking around the rear of the car to the driver door. Both doors were open as they changed sides of the car.
The subject wearing the white hat got into the passenger seat, while a female stood next to the open driver door as she watched the squad [car] stop behind her. She got into the driver seat as I stopped directly behind the white Chevrolet, bearing TX08/777CCJ.
I approached the driver door, which was still open, and immediately noted the strong odor of an alcoholic beverage flowing from the interior.”
The video displayed that, as he pulled onto the shoulder behind defendant's car, the officer activated his overhead emergency lights and gave the dispatcher the make, model, and license plate number of the car.
Reviewing Illinois law, the court stated as follows:
In People v. McDonough, 239 Ill.2d 260, 272 (2010), the supreme court identified a two-prong test for judging whether an encounter qualifies as a community-caretaking endeavor:
“First, law enforcement officers must be performing some function other than the investigation of a crime. [Citations.] In making this determination, a court views the officer's actions objectively. [Citation.] Second, the search or seizure must be reasonable because it was undertaken to protect the safety of the general public. [Citation.] ‘Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.’ [Citation.] The court must balance a citizen's interest in going about his or her business free from police interference against the public's interest in having police officers perform services in addition to strictly law enforcement.”
The appeals court further explained that a community caretaking function simply because there is a seizure:
As the supreme court in Luedemann clarified, the community-caretaking doctrine justifies not consensual encounters—which need no justification under the constitution—but seizures. See Luedemann, 222 Ill.2d at 548 (“It is clear, then, that the ‘community caretaking’ doctrine is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.”). The error that Luedemann corrected was at one time prevalent in the appellate court, including this district. For instance, our decision in Lee, which defendant cited below and continues to cite on appeal, committed the error. See Lee, 291 Ill.App.3d at 54 (“Once a seizure has occurred, an officer is not acting in his community caretak[ing] function, even if his original intention had nothing to do with detection or investigation of a crime.).” Lee's conception of community-caretaking encounters was abandoned by this district even before Luedemann was decided in 2006. See People v. Mitchell, 355 Ill.App.3d 1030, 1033 (2nd Dist.2005) (noting that the community-caretaking doctrine “has nothing to do with consensual encounters; for, by their very nature, consensual encounters need no justification. Treating it as synonymous with consensual encounters deprives the doctrine of any analytical content.”).
The court stated the following test: The question * * * is not how regularly the police conduct in question occurs as part of crime detection, investigation, or prevention, but whether the conduct is, in the context at issue, so lacking an objectively grounded public-safety purpose that the officer could not be “performing some function other than the investigation of a crime” ( McDonough, 239 Ill.2d at 272).
Concluding that this case was a proper community caretaking seizure, the court stated:
"We recognize that, unlike in the cases cited by the State, MacAdam did not come upon a vehicle already at rest, without knowledge of how long it had been there ( McDonough, Laake ), or have specific information that the driver might be impaired or in distress ( Robinson ). The vehicle came to a stop while MacAdam observed it, and he had no specific information about the travelers aside from what he saw. Nonetheless, MacAdam had reason to believe that the occupants might need assistance. Even if MacAdam could not be certain that there was an emergency, his lack of certainty had to be weighed against the likelihood that, if he did not stop to inquire, the travelers would not receive assistance for some time, given the rural location. MacAdam had also to consider the potential hazards to the travelers from passing traffic, given that no lights were activated on their car despite the dim ambient light.
"The public interest served by MacAdam's actions more than outweighed the intrusion. See McDonough, 239 Ill.2d at 272 (court must balance a citizen's interest in being free from police intrusion against the public interest in having police perform services in addition to crime detection and prevention); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (“[T]he court must balance the public need and interest against the degree and nature of the intrusion upon the citizen's privacy.”). The video of the stop shows that approximately 36 seconds elapsed between MacAdam's activating his emergency lights and reaching the driver's door of the car—at which point, defendant does not contest, MacAdam made observations that justified further detention of defendant, resulting ultimately in his arrest. There was an ample public-safety justification for those 36 seconds."
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Thursday, June 30, 2011
DUI Appeal - Double Jeopardy Bars Retrial, Says North Dakota
In Day v. Judge Bruce Haskell, --- N.W.2d ----, 2011 WL 2505052 (N.D.), 2011 ND 125, the defendant sought a writ from the Supreme Court of North Dakota to bar a judge from forcing the defendant to be retried. The facts of the case are unusual:
"In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.
"The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.
"On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary."
As stated in the opinion:
"‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ “ Linghor, 2004 ND 224, ¶ 20, 690 N .W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.
"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."
Concluding, the court stated:
"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.
"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."
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"In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.
"The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.
"On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary."
As stated in the opinion:
"‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ “ Linghor, 2004 ND 224, ¶ 20, 690 N .W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.
"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."
Concluding, the court stated:
"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.
"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."
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Friday, April 22, 2011
DUI Appeal - Illinois DUI Drug Law Based on Slightest Amount
In People v. Martin, --- N.E.2d ----, 2011 WL 1499909 (Ill.), the defendant was convicted of Aggravated DUI causing death. The evidence at trial revealed that the defendant crossed the centerline while traversing a curve in the road, hitting another vehicle head-on and killing the 2 occupants. A blood test revealed no drugs in the system. A gas chromatography mass spectrometry test revealed no drugs in the urine. A more specific mass spec test eventually revealed a barely detectable amount of a metabolite associated with methamphetamine. The defendant confided to a friend that “I have done crystal meth before, but I was not on crystal meth that night.” The State presented testimony from Anderson, a State Police forensic scientist, who analyzed two urine samples taken from the defendant that night at the hospital. Anderson stated unequivocally, and to a reasonable degree of scientific certainty, “I found methamphetamine in both of the urine samples that I tested .” Dr. Staubus stated that the urine samples did not contain detectable or realistic amounts of amphetamines, but he did not dispute that there was any amount, even a trace, of methamphetamine in the defendant's urine.
The Supreme Court found that the law does not require the State to prove that the drugs caused or contributed to the accident in order for a defendant to be guilty of the felony charged. rather, all that is required is that the defendant's driving must be a cause of the accident, and that there is some trace amount of a controlled substance in his system.
The Court reasoned that requiring the State to prove actual impairment, or that the drugs contributed to or caused the death of the person, was not what was intended by the legislature:
“There is no dispute that the statute is intended to keep drug-impaired drivers off of the road. At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and drug to drug. In this range, depending on the drug and depending on the person, some will be impaired and some will not be impaired at all. * * ** * * The flat prohibition against driving with any amount of a controlled substance in one's system was considered necessary because ‘there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is * * * driving under the influence.’ “
Citing to other cases in Illinois and Arizona, the Court continued:
"Indeed, while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs. Rodriguez, 398 Ill.App.3d at 439, 339 Ill.Dec. 158, 926 N.E.2d 390. “Unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment from such drugs because they are fundamentally different from alcohol. Essentially, there can be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability.” State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (Ariz.Ct.App.1994).
Concluding, the Court stated:
"A driver with controlled substances in his body violates section 11–501(a)(6) simply by driving. When an aggravated DUI charge is based on a violation of that section, section 11–501(d)(1)(F) requires a causal link only between the physical act of driving and another person's death. In such a case, the central issue at trial will be proximate cause, not impairment."
Editors Comments: People v. Martin (found here: http://www.state.il.us/court/Opinions/SupremeCourt/2011/April/109102.pdf) is a complete embarrassment to our state's jurisprudence, in my opinion. Aggravated DUI Causing Death is in fact our state's version of vehicular homicide, as it is referred to in other states. (We used to call it Reckless Homicide) In Martin, the Supreme Court held that a person could be convicted of Aggravated DUI Causing Death when the amount of drug found ONLY in their urine (the blood was clean) was so infinitesimal that it couldn't have impaired anyone (in fact it was so small that it also couldn't be found using a gas chromatography/ mass spectrometry -the gold standard- and had to be found using a more specialized form of mass spectrometry). In other words, if 2 people performed the same act - crossing the center line and negligently causing the death of another - then the driver found with .001 nanogram of a controlled substance goes to jail for 3-14 years, while the other isn't even charged with a crime.
Frankly, the above example IS what People v. Martin is all about - sentencing past drug users to jail as status offenses. An equal protection violation. Can you imagine what will happen when modern science is so accurate that they can find an amount of drug in your system from years ago (they can already use your hair to go back about one month per inch of length)?
Not to mention, that the Supremes erroneously claimed that the legislature intended the proximate cause issue to apply only to bad driving and not to the use of the drug itself. How did they do that? They took another statute - driving with any amount in the system - a misdemeanor - and used that statute to create out of whole cloth the fallacy that these senators also meant that there need not be a proximate cause to the drug use when they passed AN ENTIRELY DIFFERENT SET OF LAWS MAKING AGG DUI DEATH A FELONY.
My understanding of statutory construction in criminal cases suggests that ALL penal statutes are strictly construed in favor of the accused. People v. Martin doesn't even mention this construct, because to acknowledge its existence would force them to apply it.
And here's another insult to both forensic science and intellectual thinking - the Supremes held that, since one cannot tell if a person is impaired from a drug based on the level in their system alone, then we should just presume EVERYONE is impaired. Read that out loud to yourselves slowly - since we don't know who is actually guilty of the crime, we should make everyone guilty of the crime! In fact, there are presumptive levels of drug impairment that are published in medical journals, as well as employed in certain states. Further, there IS a way to determine whether someone is under the influence of drugs - it's called a medical EXAM! That's right - doctors and toxicologists are specifically trained to determine if a person is being 'influenced' by drugs in their system. And Mr. Martin's doctors, as well as ALL of the experts, could not say the defendant was impaired. So what do the Supremes decide is the best course of Illinois Jurisprudence? Find him guilty due to a LACK of REAL EVIDENCE.
People v. Martin takes the concept of strict liability (there is no mens rea for DUI) and combines it with the newest concept (no causation for the actus reus either) and makes Illinois the class clowns of modern forensic/criminal law. Could you imagine if we took all misdemeanors, and turned them into homicides simply because there was a death that was caused by from an unrelated act of negligence? Shame, shame, shame......
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The Supreme Court found that the law does not require the State to prove that the drugs caused or contributed to the accident in order for a defendant to be guilty of the felony charged. rather, all that is required is that the defendant's driving must be a cause of the accident, and that there is some trace amount of a controlled substance in his system.
The Court reasoned that requiring the State to prove actual impairment, or that the drugs contributed to or caused the death of the person, was not what was intended by the legislature:
“There is no dispute that the statute is intended to keep drug-impaired drivers off of the road. At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and drug to drug. In this range, depending on the drug and depending on the person, some will be impaired and some will not be impaired at all. * * ** * * The flat prohibition against driving with any amount of a controlled substance in one's system was considered necessary because ‘there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is * * * driving under the influence.’ “
Citing to other cases in Illinois and Arizona, the Court continued:
"Indeed, while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs. Rodriguez, 398 Ill.App.3d at 439, 339 Ill.Dec. 158, 926 N.E.2d 390. “Unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment from such drugs because they are fundamentally different from alcohol. Essentially, there can be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability.” State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (Ariz.Ct.App.1994).
Concluding, the Court stated:
"A driver with controlled substances in his body violates section 11–501(a)(6) simply by driving. When an aggravated DUI charge is based on a violation of that section, section 11–501(d)(1)(F) requires a causal link only between the physical act of driving and another person's death. In such a case, the central issue at trial will be proximate cause, not impairment."
Editors Comments: People v. Martin (found here: http://www.state.il.us/court/Opinions/SupremeCourt/2011/April/109102.pdf) is a complete embarrassment to our state's jurisprudence, in my opinion. Aggravated DUI Causing Death is in fact our state's version of vehicular homicide, as it is referred to in other states. (We used to call it Reckless Homicide) In Martin, the Supreme Court held that a person could be convicted of Aggravated DUI Causing Death when the amount of drug found ONLY in their urine (the blood was clean) was so infinitesimal that it couldn't have impaired anyone (in fact it was so small that it also couldn't be found using a gas chromatography/ mass spectrometry -the gold standard- and had to be found using a more specialized form of mass spectrometry). In other words, if 2 people performed the same act - crossing the center line and negligently causing the death of another - then the driver found with .001 nanogram of a controlled substance goes to jail for 3-14 years, while the other isn't even charged with a crime.
Frankly, the above example IS what People v. Martin is all about - sentencing past drug users to jail as status offenses. An equal protection violation. Can you imagine what will happen when modern science is so accurate that they can find an amount of drug in your system from years ago (they can already use your hair to go back about one month per inch of length)?
Not to mention, that the Supremes erroneously claimed that the legislature intended the proximate cause issue to apply only to bad driving and not to the use of the drug itself. How did they do that? They took another statute - driving with any amount in the system - a misdemeanor - and used that statute to create out of whole cloth the fallacy that these senators also meant that there need not be a proximate cause to the drug use when they passed AN ENTIRELY DIFFERENT SET OF LAWS MAKING AGG DUI DEATH A FELONY.
My understanding of statutory construction in criminal cases suggests that ALL penal statutes are strictly construed in favor of the accused. People v. Martin doesn't even mention this construct, because to acknowledge its existence would force them to apply it.
And here's another insult to both forensic science and intellectual thinking - the Supremes held that, since one cannot tell if a person is impaired from a drug based on the level in their system alone, then we should just presume EVERYONE is impaired. Read that out loud to yourselves slowly - since we don't know who is actually guilty of the crime, we should make everyone guilty of the crime! In fact, there are presumptive levels of drug impairment that are published in medical journals, as well as employed in certain states. Further, there IS a way to determine whether someone is under the influence of drugs - it's called a medical EXAM! That's right - doctors and toxicologists are specifically trained to determine if a person is being 'influenced' by drugs in their system. And Mr. Martin's doctors, as well as ALL of the experts, could not say the defendant was impaired. So what do the Supremes decide is the best course of Illinois Jurisprudence? Find him guilty due to a LACK of REAL EVIDENCE.
People v. Martin takes the concept of strict liability (there is no mens rea for DUI) and combines it with the newest concept (no causation for the actus reus either) and makes Illinois the class clowns of modern forensic/criminal law. Could you imagine if we took all misdemeanors, and turned them into homicides simply because there was a death that was caused by from an unrelated act of negligence? Shame, shame, shame......
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!
Monday, February 21, 2011
DUI Appeal of the Day (DAD) - Frustration of Purpose Doctrine and Refusals
In Commonwealth of Pennsylvania v. Xander, --- A.3d ----, 2011 WL 576094 (Pa.Super.), 2011 PA Super 33, the defendant was found guilty following a jury trial of DUI, and a also a penalty enhancement after the jury answered an interrogatory fining that the defendant had also refused to give a sample for testing. The trial court threw out the refusal, finding that the driver was not read the statutory warning. A DVD recording of Appellee's interaction with Officer Kaintz and the phlebotomist was presented at trial as a Commonwealth exhibit. The video and audio recording shows Appellee repeatedly asking for her “attorney rights” and informing Officer Kaintz and the phlebotomist that she will not answer any questions. See Certified Record (C.R.) at 36; Commonwealth Exhibit 1. Officer Kaintz attempts to explain to Appellee that she does not have the right to an attorney during processing, as they are not asking guilt-seeking questions, and are only attempting to book her and conduct a blood draw. Id. Appellee informs Officer Kaintz and the phlebotomist that “you ain't f* * *ing taking no blood test on me.” Id. Throughout the DVD recording, Appellee indicates her unwillingness to proceed any further, and at the conclusion of the video, Appellee is instructed “this concludes the processing of Alice Xander, we are done.”
The Commonwealth appealed, arguing that the statutory warning was not a mandatory prerequisite to an enhanced refusal penalty. Further, the Commonwealth relied on the “frustration of purpose” doctrine for the proposition that Appellee's behavior prevented Officer Kaintz from being able to warn Appellee of her rights, and therefore the warnings were 'excused'. The state cited to several cases where the defendant's behavior rendered the warning
First, the appeals court found that the necessity of reading the warnings was not explicitly stated in the statute, but that it was necessarily implied. The appeals court agreed with the trial court's statement that "because the General Assembly specifically included a requirement in § 1547(b)(2)(ii) that the police warn arrestees of the enhanced penalties for a refusal, a ‘refusal’ for purposes of § 3804(c) necessarily requires a knowing refusal insofar as the police must have provided the arrestee with the warnings beforehand.”
Second, the trial court found that the State's other case involving conduct that amounted to a refusal was dissimilar:
Thus, the trial court's judgment of acquittal was affirmed.
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The Commonwealth appealed, arguing that the statutory warning was not a mandatory prerequisite to an enhanced refusal penalty. Further, the Commonwealth relied on the “frustration of purpose” doctrine for the proposition that Appellee's behavior prevented Officer Kaintz from being able to warn Appellee of her rights, and therefore the warnings were 'excused'. The state cited to several cases where the defendant's behavior rendered the warning
First, the appeals court found that the necessity of reading the warnings was not explicitly stated in the statute, but that it was necessarily implied. The appeals court agreed with the trial court's statement that "because the General Assembly specifically included a requirement in § 1547(b)(2)(ii) that the police warn arrestees of the enhanced penalties for a refusal, a ‘refusal’ for purposes of § 3804(c) necessarily requires a knowing refusal insofar as the police must have provided the arrestee with the warnings beforehand.”
Second, the trial court found that the State's other case involving conduct that amounted to a refusal was dissimilar:
"Notably, in almost every instance, the officers try, in many circumstances repeatedly, to explain the consequences of refusing chemical testing on an uncooperative motorist. The trial court herein notes, however, that the facts before it are distinguishable from this line of cases in three ways. First, Officer Kaintz never attempted to read Appellee the § 1547(b) warnings and request a blood draw, as Appellee would not ever answer the basic booking questions asked of her. Trial Court Opinion, 6/29/10, at 21-22. This finding is supported by the DVD offered by the Commonwealth and viewed by the trial court as well as this Court. Second, “there [was] nothing about [Appellee]'s behavior that was so disruptive that the officer could not have read her implied consent warnings[.]” * * * Third, “the entire process lasted only three minutes and thirteen seconds” and that “[a]lthough [Appellee] (again, wrongly) claimed she was entitled to counsel before responding to the routine booking questions, she appeared to listen to the officer's questions and respond thereafter, albeit with an incorrect concept of the law.”
Thus, the trial court's judgment of acquittal was affirmed.
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