DUI Appeal of the Day (DAD) - Mistake of Law, Broken Stop Lamps, Illegal Seizure

In Goens v. State of Indiana, --- N.E.2d ----, 2011 WL 490848 (Ind.App.) an officer stopped the defendant for a non-operating stop lamp. At the hearing on the motion two suppress, the judge determined that the right rear lamp was not working, but the left rear and high mount were operable and working. Finding that two out of three of the vehicle's stop lamps were operating at the time of the stop, the trial court denied Goens's motion to suppress after concluding that it was reasonable for the officer to stop the vehicle for one inoperable stop lamp, if for no other reason than to inform the driver that the light was burned out.


On appeal, the court first reviewed the Indiana statute on stop lamps. Applying the rule of statutory construction tat "[p]enal statutes should be construed strictly against the State and ambiguities should be resolved in favor of the accused.", it found that the statute only required one working tail lamp.



Then, it found that the officer's mistake of law (as opposed to mistake of fact) did not justify the stop of defendant's vehicle, and granted the motion to suppress, stating:

“Although a law enforcement officer's good faith belief that a person has committed a violation will justify a traffic stop, an officer's mistaken belief about what constitutes a violation does not amount to good faith. Such discretion is not constitutionally permissible.” State v. Rager, 883 N.E.2d 136, 139-40 (Ind.Ct.App.2008) (citations omitted); see also Meredith v. State, 906 N.E.2d 867, 870 (Ind.2009). As well as having a constitutional dimension, this limitation is one of common sense. While we as citizens desire and expect law enforcement officers to enforce the requirements of state statutes as they pertain to motor vehicles, if the condition of our motor vehicles clearly and visibly meets these requirements, we should not be subject to a traffic stop on suspicion of an alleged violation thereof. Because the condition of Goens's vehicle could not reasonably appear to violate applicable Indiana statutes at the time it was observed by Officer Lengerich, the vehicle's condition could not and did not support reasonable suspicion for the traffic stop. We therefore conclude that the trial court abused its discretion when it denied Goens's motion to

suppress.

Note: Interestingly, the opinion acknowledged that federal law requires a vehicle of this nature to be equipped with 3 stop lamps. However, it did employ this regulation in interpreting their own state's statute......



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DUI Appeal of the Day (DAD) - Improper Seizure at Closed Business

In Sosa v. Texas, Not Reported in S.W.3d, 2011 WL 346215 (Tex.App.-Texarkana), the defendant was convicted of DWI after her motion to suppress was denied. Her sole issue on appeal was the propriety of the investigative detention. While on patrol, the arresting officer (Hill) observed the defendant (Sosa) parked at the entrance to DC Self Storage in Marshall, Texas, at approximately 10:45 p.m. Based on Hill's experience when Hill's mother had previously rented a unit from that storage facility, Hill believed the normal business hours of the storage facility were from 7:00 a.m. to 7:00 p.m. Hill proceeded past the storage facility and stopped on the side of the road. When Sosa did not enter after thirty to forty seconds, Hill turned around, activated his lights, and pulled in “behind her.” While conversing with Sosa, Hill detected the odor of alcohol on Sosa's breath and noticed that Sosa's speech was slurred. Subsequent investigation determined Sosa to be intoxicated. The first issue that needed resolution was whether the contact was a 'seizure' or whether it was an 'encounter', as the term was used in the opinion. The court found that the use of the lights, the blocking of the defendant's vehicle, and the officer's admission that the defendant was not free to leave were enough to establish that the contact was a 'detention':

In this case, Hill's show of authority was sufficient to communicate to a reasonable person that he or she was not free to leave the scene. Hill testified Sosa was not free to leave. Although the classification of an interaction is determined based on an objective standard and, therefore, the police officer's subjective opinion is not determinative, Hill's subjective opinion can be evidence that a reasonable person would not feel free to terminate the interaction. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (reasonable suspicion evaluated from objective perspective). The manner in which Hill parked his vehicle and the use of overhead emergency lights suggest the interaction was an investigative detention. Since Sosa was parked in front of the storage facility's gate, the position of Hill's vehicle effectively prevented her vehicle from moving. Sosa's vehicle seems to have been trapped between the storage facility's gate and Hill's vehicle. The Texas Court of Criminal Appeals has considered the fact that a police officer “ ‘boxed in’ Appellee's parked truck” in determining whether a seizure had occurred. See State v. Garcia-Cantu, 253 S.W.3d 236, 246 n. 44 (Tex.Crim.App.2008) (concluding trial court did not err in concluding reasonable person would not feel free to leave).

Although “[a]ctivation of overhead lights on a police vehicle does not necessarily make an encounter non-consensual,” the Texas Court of Criminal Appeals has noted: “The use of ‘blue flashers' or police emergency lights are frequently held sufficient to constitute a detention or seizure of a citizen, either in a parked or moving car.” Id. at 245 n. 43 (spotlight different from overhead lights); see Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010) (activation of overhead lights factor in concluding pedestrian was detained); Hudson v. State, 247 S.W.3d 780, 785 (Tex.App.-Amarillo 2008, no pet.) (activation of patrol car lights and police officer's order caused appellant to yield to show of authority); see Franks v. State, 241 S.W.3d 135, 142 (Tex.App.-Austin 2007, pet. ref'd) (mere activation of overhead lights at dark rest park was insufficient, by itself, to make initial interaction a detention). Franks is distinguishable in that, there, no evidence suggested that the position of the police car impeded Franks' ability to terminate the encounter. Franks, 241 S.W.3d at 142. Further, the police officer in Franks testified he activated the overhead lights to illuminate the rest area. Id. There is no evidence in this case that Hill activated his overhead lights to illuminate the storage facility's entry area. When asked whether the area “is fairly well lit,” Hill responded, “I'd say fairly. It's not as well lit as you get going on into town.”

Thereafter, the court then grappled with whether the detention was supported by reasonable suspicion. The State argued that the vehicle's remaining at the entrance of a closed business for 30-40 seconds, coupled with the officer's knowledge that thefts and break-ins had previously occurred there, gave rise to reasonable suspicion, and the court sub judice had agreed. However, the appellate court disagreed:

The noncriminal, not terribly unusual, nonrepetitive behavior observed in this case was insufficient to objectively support a belief that criminal activity was or soon would be afoot. The specific, articulable facts relied on by Hill are insufficient to create reasonable suspicion that criminal activity was occurring. All the facts indicate is that Sosa was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into. Hill failed to provide, under the totality of the circumstances, sufficient specific, articulable facts to create an objective manifestation that Sosa was, or was about to be, engaged in criminal activity. Hill's suspicion amounted to nothing more than a mere hunch. Deferring to the trial court's determination of historical facts, it was error to overrule Sosa's motion to suppress.

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DUI Appeal of the Day (DAD) - Judgment of acquittal based on the margin of error

In Kansas v. Finch, --- P.3d ----, 2011 WL 43926 (Kan.) the defendant was arrested for DUI and took a breath test, the result of which was 0.08. The trial proceeded solely on the charge of driving with a BrAC of 0.08 or greater. At trial, the defense crossed the breath operator about the margin of error (for those with interest, the below opinion contains a great portion of the cross, which revealed a recalcitrant cop who was unwilling to admit that the machine was less than 100% perfect). When the state rested, the defense moved for judgment of acquittal as a matter of law (this was a jury trial). The trial court, commenting that he found the breath cop less than credible on the margin of error, and also noting that he was aware of testimony from other trials where the margin of error was admitted to be =/- 0.007, granted the motion.


On appeal, the higher court found the trial courts ruling improper. Under the standards applicable, once the state puts in a result of 0.08 or more, then they have met their initial burden of proof (prima facie in a light most favorable to the State). In reversing though, the appeals court rejected the state's attempt to bar introduction of any evidence of a margin of error or other errors in the measurement of the breath (commenting that the state is trying to "overegg the pudding"). In fact, the court held that the margin of error, if proven, should be considered by the trier of fact in arriving at a verdict at the close of all evidence. The court suggested that the jury could accept or reject the margin of error evidence.



Editors notes: there is controversy over whether a margin of error can defeat a per se count as a matter of law. Further, the appeals court advised that it is improper for a trial court to take notice of testimony dehors the record.

Counsel should always be prepared to prove up a margin of error independent of the breath operators testimony, such as manufacturer's records, government studies, or experts.

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DUI Appeal of the Day - Hearing Officer's refusal to authorize subpoena improper

In Florida Dept of Hwys and Motor Vehicles v. Auster, --- So.3d ----, 2010 WL 5391552 (Fla.App. 5 Dist.), the defendant sought to challenge her suspension for refusing a breath test, based upon her claim that she had timely recanted her refusal to submit to a breath test. In that regard, she sought to subpoena the breath technician to confirm her claim. The hearing officer, upon whose authority the subpoena must issue, refused to authorize the same. She then lost the hearing, and appealed. On appeal, the court stated:

A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)(b), Fla. Stat. (2008). Here, Caner was identified in these documents. Furthermore, according to DHSMV's own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). The question of whether Auster timely rescinded her refusal to submit to a breath test is a relevant issue.

Continuing, the appellate court held that:

Where the witness' expected testimony would be relevant to the issues within the limited scope of the review hearing and would not be clearly cumulative, due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so.

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DUI Appeal of the Day - Drunk Driving Laws and Americans with Disabilities Act

In Bircoll v. Miami-Dade County, 480 F.3d 1072, 34 NDLR P 107, 20 Fla. L. Weekly Fed. C 371 (2007), the defendant was a deaf person, who sued after being wrongfully arrested for DUI. He claimed that the police officer's procedures for arrest and custody violated his rights under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). The appeals court held that:

(1) To take reasonable steps to accommodate the disability of profoundly deaf motorist who had been arrested for driving under the influence (DUI), as required under the Americans with Disabilities Act (ADA), arresting officer had to take appropriate steps to ensure that his communication with motorist was as effective as with other individuals arrested for DUI. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.
(2) waiting for oral interpreter before taking field sobriety tests was not reasonable modification of police procedures, in which officer who stopped motorist on suspicion of driving under the influence (DUI) had to engage to accommodate motorist's profound deafness;
(3) Actual communication between police officer and deaf motorist whom he had stopped on suspicion of driving under the influence (DUI) was not so ineffective that oral interpreter was necessary to guarantee that motorist was on equal footing with DUI suspects who were not hearing-impaired, and to protect motorist's rights under the Americans with Disabilities Act (ADA), where motorist admitted that he read lips and usually understood 50% of what was said, where officer, in addition to verbal instructions, gave physical demonstrations, and where motorist understood that he was being asked to perform field sobriety tests and actually tried to perform at least three of those tests; and
(4) Arresting officer took steps reasonably necessary to establish effective communication at police station with the profoundly deaf motorist whom he arrested for driving under the influence (DUI), and did not discriminate against motorist in violation of provision of the Americans with Disabilities Act (ADA), where officer not only read consent form aloud to motorist twice in lighted room to afford him an opportunity to lip read, but provide him with written copy of form, and where motorist acknowledged that he could read English; motorist's own failure to read what officer provided him did not constitute discrimination.
(5) Even assuming that corrections officers failed to accommodate motorist's disability, by requiring him to use ordinary telephone to attempt to communicate his arrest to his girlfriend, this lack of accommodation did not injure motorist or support cause of action under the ADA.

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DUI Appeal of the Day - Collateral Estoppel OK for Wyoming DUI

In Bowen v. Wyoming Dep't of Transportation, -- P.3d ----, 2011 WL 9617 (Wyo.), 2011 WY 1, the defendant appealed from an administrative decision, finding that the driver was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding. On appeal, the Supreme Court of Wyoming was asked to decide whether collateral estoppel coud be applied from a criminal case to a civil license administration case. Most states have previoulsy ruled that collateral estoppel should not apply from an administrative hearing (implied consent) to a criminal case, under various theories. One theory involves the fact that the implied consent hearing is summary in nature, so that a 'full and fair' adjudication may not occur. Another theory preventing collateral estoppel from a drivers license suspension hearing and a criminal DUI case could be that the parties are not identical (one involves the DMV where the other involves District Attorneys and the 'People').

The Wyoming Supreme Court analyzed the issue as follows:
The issue raised in this appeal is one of first impression for this Court. Furthermore, we are unable to find authority from any other jurisdiction addressing this particular factual scenario.FN3 Nevertheless, we find application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court's determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. When applying collateral estoppel to an issue raised in a civil action, which issue was previously litigated in a criminal action, we have said that criminal proceedings present a defendant with a full and fair opportunity to litigate the issues because a criminal defendant has strong incentives to defend vigorously the charges against him. Worman v. Carver, 2002 WY 59, 21, 44 P.3d 82, 87-88 (Wyo.2002). In this case, the criminal proceedings afforded the appellant a full evidentiary hearing wherein he offered evidence, examined witnesses, and made arguments. FN4

FN3. We note that courts have addressed the applicability of collateral estoppel under other circumstances involving criminal and administrative cases. See Huelsman v. Kansas Dep't of Revenue, 980 P.2d 1022, 1025-27 (Kan.1999) (suppression of evidence in DUI prosecution based on lack of probable cause did not collaterally estop state from arguing in license suspension proceeding that officer had “reasonable grounds” to request a breath test pursuant to the implied consent law); State v. Young, 530 N.W.2d 269, 273-77 (Neb.Ct.App.1995) (holding that collateral estoppel does not require a criminal court to accept as binding an administrative proceeding's license revocation determination); In re Mehrer, 273 N.W.2d 194, 197 (S.D.1979) (no collateral estoppel in license revocation proceedings despite dismissal of DUI charge against defendant in criminal case because different elements must be proven to show DUI versus violation of implied consent laws); City of Manhattan v. Huncovsky, 913 P.2d 227, 232 (Kan.Ct.App.1996) (criminal court not collaterally estopped from deciding validity of breath test where agency questioned validity of breath test results and dismissed administrative proceedings).


We conclude that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.FN5 The OAHs determination is affirmed.

The Wyoming Supreme Court refused, however, to issue a bright-line ruling. Instead, they ruled that each case would have to be decided on a fact-specific basis. Thus, it is likely that a party can always get a "second bite at the apple" if they have additional evidence to present:
FN5. We note the limited nature of our decision in this matter. Although we find that collateral estoppel applies under these specific circumstances, the same may not be true in other similar situations. For example, we cannot say that collateral estoppel would always bar an administrative body from addressing an issue previously decided by a criminal court; nor does this holding stand for the proposition that a criminal defendant should be collaterally estopped from arguing an issue in his criminal case that had previously been decided in an administrative proceeding. Neither of these questions, nor any others not specifically addressed, were raised by the parties nor do they arise under the facts of this case.
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2008-2009 Illinois DUI Penalties Chart (For offenses after June 1, 2008)

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now! 2008-2009 Illinois DUI Penalties Chart (For offenses after June 1, 2008) First Offense Class A Misdemeanor Court Supervision up to 2 years DUI Tech Fee $500.00 Fines of 0-2,500.00 BAC > .16 or greater Mandatory 100 hours community service Mandatory Minimum fine of $500.00 Passenger < under16 years old Subject to 6 months jail or 25 days community service in a program benefitting children Mandatory minimum $1000 fine Up to maximum fine of $2,500.00 If Bodily Harm to Passenger under 16, Class 4 felony, min $2,500.00 to max $25,000.00 plus 25 days community service in a program benefitting children and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If suspended, revoked, or no license or no insurance, then Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If driving School Bus with pass < 18, Class 4 felony If driving in a school zone with limit of 20 mph in effect and accident with bodily harm other than great bodily harm, permanent disability or disfigurement Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Great bodily harm, permanent disability or disfigurement Class 4 felony 1-12 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] and Minimum fine $2,500.00 Second Offense Class A Misdemeanor No Court Supervision - Mandatory Conviction Revocation of Driving Privileges Mandatory 5 days jail or 240 hours community service DUI technology Fee of $1,000.00 Fines of up to $2,500.00 If 2d DUI and prior reckless homicide, then Class 4 felony If BAC >.16 Add additional 2 days jail to above penalties Mandatory minimum fine of $1250.00 If Passenger < 16 years old Class 2 felony 3-7 years imprisonment or probation up to 48 months §11-501(d)(1)(K) and (I) and min $2500.00 plus 25 days community service in a program benefitting children §11-501(d)(1)(K) and (I) and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Bodily Harm to Passenger under 16, Class 2 felony 3-7 years imprisonment or probation up to 48 months §11-501(d)(1)(K) and (I), and min $5000.00 to max $25,000.00 plus 25 days community service in a program benefitting children and Mandatory minimum 10 days jail or 480 hours community service [11-501(d)(3)] If Great bodily harm, disability or disfigurement to any person Class 4 felony, from probation to 1-12 years imprisonment Minimum fine of $5000.00 plus 25 days community service in a program benefitting children (any bodily harm per 11-501(d)(1)(K and I) Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) If suspended, revoked, , or no insurance, then Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) If accident with great bodily harm Class 4 felony 1-3 years imprisonment or Probation up to 30 months and Mandatory minimum 10 days jail or 480 hours community service 11-501(d)(3) Minimum fine $5,000.00 Third Offense Class 2 Felony 3-7 years imprisonment or Probation up to 48 months, and Mandatory minimum 10 days jail or 480 hours community service DUI Tech fee $1,000.00 Fines up to max $25,000.00 If BAC > .16 Mandatory 90 days jail and Mandatory minimum fine of $2500.00 If passenger < 16 years old Mandatory minimum fine of $25,000.00 and Mandatory 25 days community service in a program benefitting children If Great bodily harm, disability or disfigurement Class 2 felony, from 480 community service to 1-12 years imprisonment (note: combining 1-12 years great bodily harm requirement; if any jail then must be minimum 1 year) Fourth Offense Class 2 Felony non-probationable 3-7 years imprisonment and DUI Tech fee $1,000.00 Maximum fine of $25,000.00 If BAC > .16 Mandatory Minimum fine is $5,000.00 If passenger < 16 years old Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children If Great bodily harm, disability or disfigurement Class 2 felony, from 480 community service to 1-12 years imprisonment (note: combining 1-12 years great bodily harm requirement) Fifth Offense Class 1 non-probationable 4-15 years imprisonment DUI Tech fee $1,000.00 Fine up to $25,000.00 If BAC >.16 Mandatory Minimum fine $5000.00 If passenger < 16 years Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children Sixth Offense Class X felony non-probationable 6-30 years imprisonment DUI Tech fee $1,000.00 Fine up to $25,000.00 If BAC >.16 Minimum fine $5000.00 If passenger < 16 years Minimum fine $25,000.00 and Mandatory 25 days community service in a program benefitting children DUI Death If violation of DUI proximately causes death to another Class 2 felony Minimum is probation, or 3-14 years for one death Minimum probation to 6-28 years for 2 or more deaths Judge must find extraordinary circumstances to award probation