In the case of In Re --- N.Y.S.2d ----, 2011 WL 1421808 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 03004, an attorney licensed in both New Jersey and New York pleaded guilty to DWI and Leaving the Scene for an offense occurring in New Jersey. He entered a Pre–Trial Intervention Program. The New Jersey Supreme Court publicly admonished respondent for his criminal conduct On appeal, the New York court also imposed reciprocal discipline in the form of a public censure.
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Showing posts with label attorney. Show all posts
Showing posts with label attorney. Show all posts
Sunday, April 24, 2011
Saturday, February 05, 2011
DUI Appeal of the Day (DAD) - Unwitnessed violations, Touching Lines, Turn Signal Issues make Bad Stop
We need not be detained by this issue because the State concedes on appeal, as it must, that the officer testified at the hearing that he was unaware of this alleged traffic violation until after he reviewed the dash cam video of the incident, which the officer did not review until after he had detained and arrested Loyd. “ ‘Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense.’ “ State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999) (quoting State v. Tokar, 918 S.W.3d 753, 757 (Mo. Banc 1996)). “Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest.” Id .
Also of interest in this case is the discussion regarding the correct procedure for preserving error when a motion to suppress is denied:
While Loyd argued his motion to suppress immediately prior to the beginning of trial, it is not disputed that he failed to preserve his claim in this regard at trial through an appropriate objection. “Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review.”
Many states have similar requirements. As a result of Loyd's failure to preserve the error, he had to appeal under a more onerous ground - the plain error rule. Although in this case the defense was ultimately successful on appeal, at trial defense counsel should always renew the objection to admission of evidence based upon a denial of a motion to suppress.
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Monday, January 31, 2011
DUI Appeal of the Day - Attorney Advice Renders Illegal Search Admissible
In Anderson v. State of Alaska, --- P.3d ----, 2011 WL 255164 (Alaska App.) the driver was involved in an accident on a snowy day, where he struck and killed a pedestrian. The police transported the defendant to the station, and erroneously informed him that he was required to submit to drug and alcohol testing simply due to the fact that he had been in an accident. The defendant sought and obtained a consultation with an attorney, who advised the defendant to submit. The trial court found that they had illegally detained Anderson when they transported him to the police substation. However the trial judge concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.
On appeal the appellate court agreed that the attorney's advice vitiated the illegality, and rendered the submission consensual:
The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls. There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent.
Interestingly, the court does not find that the attorney's advice to submit was patently incorrect:
The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him. Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident.
Perhaps because the court found that the defendants decision to submit might have been a calculated attempt towards exoneration, then the act of submission was considered voluntary. Perhaps if the defense attorney had admitted to his own erroneous understanding of the law, the result might have been different. At any rate, counsel should be extremely careful if they take a late-night call such as the above, to ensure that all possibilities are considered before advice is rendered.
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On appeal the appellate court agreed that the attorney's advice vitiated the illegality, and rendered the submission consensual:
The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls. There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent.
Interestingly, the court does not find that the attorney's advice to submit was patently incorrect:
The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him. Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident.
Perhaps because the court found that the defendants decision to submit might have been a calculated attempt towards exoneration, then the act of submission was considered voluntary. Perhaps if the defense attorney had admitted to his own erroneous understanding of the law, the result might have been different. At any rate, counsel should be extremely careful if they take a late-night call such as the above, to ensure that all possibilities are considered before advice is rendered.
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Thursday, January 27, 2011
DUI Appeal of the Day (DAD) - Defense Barred from Attacking Urine Alcohol Testing
In State of Minnesota v. Dixon, Not Reported in N.W.2d, 2011 WL 68050 (Minn.App.), the defense attorney argued on appeal that the trial court erred in barring from presenting any evidence regarding or attacking the reliability of the urine testing method, including the barring of defense experts. The theory that the defense intended on presenting was, inter alia. That first-void urine alcohol testing is unreliable and inaccurate. The appellate court upheld that trial court decision, and barred such evidence in its entirety. It stated as follows:
“Minnesota courts have rejected challenges to the use of urine tests based on the “urine-pooling theory,” which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-39; Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999). In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. Hayes, 773 N.W.2d at 139. In Genung, this court stated that BCA urine-testing procedures “have been found to ensure reliability” and “do not require voiding once before producing the test sample.” 589 N.W.2d at 313. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, “it is insufficient as a matter of law to prove that the ‘testing method’ is not ‘valid and reliable’ “ under the implied-consent statute. Hayes, 773 N.W.2d at 138. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examine the state's BCA expert witness on that theory.”
This case represents the dangerous slope that courts have taken to beat down defense attacks on modern science. The mere fact that a court has reviewed a scientific theory under Daubert or Frye and it has been found acceptable for admissibility purposes, does not equate to proof that such method of testing is infallible. This ruling confounds those two principles (i.e. reliability and uncertainty) and improperly denies the defendant his right to a defense. Sad.
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“Minnesota courts have rejected challenges to the use of urine tests based on the “urine-pooling theory,” which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-39; Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999). In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. Hayes, 773 N.W.2d at 139. In Genung, this court stated that BCA urine-testing procedures “have been found to ensure reliability” and “do not require voiding once before producing the test sample.” 589 N.W.2d at 313. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, “it is insufficient as a matter of law to prove that the ‘testing method’ is not ‘valid and reliable’ “ under the implied-consent statute. Hayes, 773 N.W.2d at 138. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examine the state's BCA expert witness on that theory.”
This case represents the dangerous slope that courts have taken to beat down defense attacks on modern science. The mere fact that a court has reviewed a scientific theory under Daubert or Frye and it has been found acceptable for admissibility purposes, does not equate to proof that such method of testing is infallible. This ruling confounds those two principles (i.e. reliability and uncertainty) and improperly denies the defendant his right to a defense. Sad.
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Monday, January 24, 2011
DUI Appeal of the Day (DAD) - Prior Refusals Do Not Qualify as a 'Prior' for DWIs
This case comes to DAD's attention thanks to New Jersey member Steven Hernandez. In State of New Jersey v. Ciancaglini, --- A.3d ----, 2011 WL 148910 (N.J.), the defendant was sentenced as a third-timer, based upon a prior conviction for refusing a breath test. The Supreme Court of New Jersey unanimously held that a prior refusal was not a prior conviction for sentencing purposes. The case itself was based upon a statutory interpretation of the language in the DWI statute referring to prior 'violations'. In New Jersey, the DWI statute and the Refusal statute are separate and distinct from each other. Employing the "well-established principle that penal statutes must be strictly construed", the court found that the term 'violations' was too vague to include prior refusals, as opposed to prior DWIs only. Said the Court:
"Moreover, while the record was not fully developed as to whether defendant's 2006 refusal conviction was incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have had to do so in clearer language."
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"Moreover, while the record was not fully developed as to whether defendant's 2006 refusal conviction was incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have had to do so in clearer language."
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Saturday, January 15, 2011
DUI Appeal of the Day (DAD) When the Expert Can't Add or Subtract
In State of Maine v. Caron, --- A.3d ----, 2011 WL 82197 (Me.), 2011 ME 9, the defendant was charged with DUI following a rollover accident resulting in serious injuries to the vehicle's other occupant. At trial, the issues included whether defendant (or the victim) was the driver, and also extrapolation of the defendant's blood alcohol back to the time of driving. The State's expert testified that he concluded that the defendant was the driver based upon the defendant's "left-sided injuries" and the victim's :right-sided injuries". The state expert also calculated the defendant's BAC to be above the limit at the time of driving.
On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.
Finding no error in the trial court's determination that the expert was competent, the appellate court stated:
As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.
We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-alcohol test.
The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).
(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)
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On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.
Finding no error in the trial court's determination that the expert was competent, the appellate court stated:
As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.
We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-alcohol test.
The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).
(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)
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Thursday, January 13, 2011
DWI Appeal of the Day (DAD) - Blood Search Warrant Insufficient
Rarely does any DWI reported out of the Texas appellate courts end well for the defendant. This is one of those rarities. In Farhat v. State of Texas, --- S.W.3d ----, 2011 WL 56056 (Tex.App.-Fort Worth), the defendant was arrested for DWI by Corporal Finley. Corporal Finley then prepared a sworn affidavit for a blood-draw search warrant, and the magistrate subsequently signed a search warrant based on the affidavit.
The case presents a good summation of search warrant law, both federal and state:
The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.
The affidavit in support of the blood warrant states, in total,
On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.
The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:
In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.
In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':
Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *
The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.
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The case presents a good summation of search warrant law, both federal and state:
The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.
The affidavit in support of the blood warrant states, in total,
On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.
The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:
In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.
In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':
Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *
The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.
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Tuesday, January 11, 2011
DUI Appeal of the Day (DAD) - When is Blood being Drawn for Medical Purposes?
In Arizona v. Hansen, Not Reported in P.3d, 2010 WL 5549045 (Ariz.App. Div. 2) the driver was involved in a single-car accident and eventually transported by ambulance to a hospital. (Interestingly, no injuries to this driver are ever described or mentioned in the opinion). At the hospital, the officer requested that if hospital personnel drew Hansen's blood for any medical reason, they also retain a sample for DPS purposes. A hospital employee then drew blood from Hansen apparently using two needles, one for a blood draw ordered by the attending physician and the other to fill two vials provided by the officer. DPS analysis of the second sample revealed a blood alcohol concentration of .207.
In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:
Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.
¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).
IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:
Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.
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In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:
Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.
¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).
IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:
Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.
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!
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