DUI Law - Nebraska Says Driveway Arrest and Refusal Illegal

This case has plenty of great statements of law. In State of Nebraska v. McCave, --- N.W.2d ----, 282 Neb. 500, 2011 WL 4861872 (Neb.) the defendant is found inside his car allegedly intoxicated. The car is parked in the private driveway of his father's house with the vehicle not running. While he was listening to music on the car radio, his father told him to turn the volume down and leave. After he refused, his father called the police. The police, after a confrontation, arrested McCave for trespass and driving under the influence of alcohol (DUI). Later, the State additionally charged him with resisting arrest, refusing to submit to a chemical breath test, and possessing an open container of alcohol in a vehicle.







As per the opinion, this appeal presents several interrelated issues:







1. Did the evidence show that McCave had operated or was in actual physical control of his vehicle on a public highway or on private property that is open to public access?







2. Did the evidence show that McCave possessed an open container of alcohol on a public highway or in a public parking area?







3. Does an officer's lack of probable cause for a DUI arrest bar a prosecution for refusing to submit to a chemical test?







4. In the criminal trespass prosecution, was evidence showing that McCave's stepmother had consented to McCave's presence at her house admissible?









In Nebraska, a DUI must occur on public property, or on private property that is open to the public access. Nebraska had found that an appartment parking lot was open to access. here, the Supreme Court found as a matter of law that a private residential driveway does not constitute a place where DUI can occur, as it is not "open to public access."



Further, the high court found that the cops did not have probable cause to arrest for DUI, so the defendant's refusal should have been suppressed. Additionally, the Supreme Court found that retrial was not warranted becuase as a matter of law the evidence was insufficient to convict.



Lastly, the court found that the statement of the sister of defendant, i.e. that the defendant had permission to be on the property, was not 'hearsay" becuase it constituted a "verbal act" and as such should have been admitted in regards to the trespass count. . "A verbal act is a statement that has legal significance, i.e., it brings about a legal consequence simply because it was spoken." "A statement offered to prove its impact on the listener, instead of its truth, is offered for a valid nonhearsay purpose if the listener's knowledge, belief, response, or state of mind after hearing the statement is relevant to an issue in the case."

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DUI Law - California Says Brain Injury is Defense to Refusal

Today's DAD is an 'oldie but a goodie'. In Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757–758, a motorcyclist involved in an accident was arrested for driving under the influence. He was uncooperative and refused medical care. Although no head injuries were observed by the arresting officer or ambulance or fire personnel, he was “ ‘in and out,’ meaning he went from responsive to the irrational, and ‘up and down,’ meaning he would go from the calm to the belligerent.” When read the chemical test admonition, the officer was not sure the motorcyclist understood it and the motorcyclist made a comment that made no sense to the officer. After his release from jail, he was hospitalized and treated for a skull fracture; his hospital records were introduced at the license revocation hearing. A neurologist testified the motorcyclist had suffered a serious head injury during the accident, which would account for his bizarre combative behavior and would have made it difficult to have understood the officer's admonition and the significance of his refusal to submit. The neurologist also opined it was unlikely that alcohol caused the behavior.

The Hughey court noted, a “self-induced condition rendering the driver incapable of understanding and refusing to submit to a test, particularly if the condition results from alcohol consumption, does not excuse failure to take a test.” (see cases cited therein.) However, it concluded the evidence supported the finding that the motorcyclist was rendered incapable of refusing to submit to a chemical test by reason of his head injury and that alcohol was not a cause his mental state following the accident.

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DWI Law - Minnesota hands Out Consecutive Sentences In Refusal and DAC Case

In Minnesota v. Parker, Not Reported in N.W.2d, 2011 WL 3654394 (Minn.App.), the defendant was sentenced to consecutive sentences for Driving After Cancellation and Test Refusal. On appeal, the defendant claimed that consecutive sentencing was barred, because the two offenses occurred at virtually the same time, involving the same essential acts. In Minnesota, ordinarily a district court may not impose more than one sentence for multiple offenses committed during a single behavioral incident.

“[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”

The test for determining if violations of two or more traffic statutes result from a single behavioral incident is whether they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.

Many states have the same basic law prohibiting consecutive sentences (unless specifically authorized) for the same basic acts in their sentencing statutes. Minnesota found that the two acts did not prevent multiple sentencing:

"In Reimer, we concluded that “driving with an expired driver's license is a continuing offense that recurs every time appellant drives.” Id. at 177 (affirming the district court's conclusion that prosecution for driving with an expired license and DWI did not violate prohibition on serial prosecutions). “Moreover, the offenses of DWI and driving with an expired license do not manifest an indivisible state of mind or coincident errors of judgment. Appellant's decision to drive with an expired license may be attributed to errors in judgment wholly independent of his decision to drink and drive.” Id. (quotation and citation omitted). We noted in Reimer that “Minnesota courts have reached similar results in a variety of factual situations involving one or more motor vehicle violations.” Id.; see also State v. Meland, 616 N.W.2d 757, 760 (Minn.App.2000) (holding that driving with expired tabs and DWI did not arise from a single behavioral incident); State v. Butcher, 563 N.W.2d 776, 784 (Minn.App.1997) (holding that illegally transporting a firearm and DAC did not arise from a single behavioral incident), review denied (Minn. Aug. 5, 1997); State v. Bishop, 545 N.W.2d 689, 692 (Minn.App.1996) (holding that DAC and aggravated DWI involved dissimilar errors in judgment and therefore involved two offenses). DAC is considered “continuous” in nature and therefore does not meet the test of requiring “an indivisible state of mind or coincident errors of judgment.” State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966). We therefore conclude that appellant's convictions of DAC and test refusal do not arise from a single behavioral incident—regardless of whether they occurred at substantially the same time and place.

Thus, the court found that multiple sentences were not unauthorized. However, due to errors at to other sentencing issues (i.e. the score for defendant's criminal history, and an error in which sentence is first served) the case was remanded for further resentencing.

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OWI Law - Iowa Rejects Refusal Change of Mind Policy

In Welch v. Iowa Department of Transportation, --- N.W.2d ----, 2011 WL 3522804 (Iowa) the Iowa Supreme Court decided to re-visit the issue as to whether an initial refusal could be cured by a subsequent consent. Here, the defendant initially refused a breath test, but changed his mind eleven minutes later. Nothing had changed during those elven minutes. Iowa reviewed the law across the country, noting that a large minority of states allowed a person to have a 'change of heart' under certain conditions, namely: a previous refusal may generally be cured by a subsequent request for a chemical test so long as the request is made within a reasonable time and the delayed administration of the test will neither materially affect the test results nor substantially inconvenience the police.

In deciding that precedent and simplicity was more important than the goal of determining who was guilty and who was not guilty through actually testing, Iowa claimed that upholding the initial refusal was more important than getting an actual blood or breath result:

"Additionally, a bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens. Law enforcement officials have to make many quick decisions as to what the law requires where the stakes are high, involving public safety on one side of the ledger and individual rights on the other. A clear, teachable rule is a high priority. Welch's flexible approach, by contrast, is likely to lead to uncertainty in particular cases. See, e.g., Stone v. McCullion, 27 Ohio App.3d 112, 500 N.E.2d 326, 328 (Ohio Ct.App.1985) (“No specific period of time ... can be laid down as reasonable or unreasonable in any and all events.”).FN9

Also, Iowa's existing, clearcut “one refusal” rule reduces the time and cost burdens on law enforcement. As we noted in Krueger, if a motorist can change his or her mind, this means the officer must remain with or near the arrested motorist, effectively removing him or her from other duties, until the “reasonable” time has expired. 169 N.W.2d at 879; see also, e.g ., Zidell, 71 Cal.Rptr. at 113 (“It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences.”). Welch may argue that the last two of the five Standish factors alleviate this burden, because the initial refusal may be withdrawn only if there will be no substantial inconvenience or expense to the police and the individual requesting the test has been in the custody of the arresting officer. But “inconvenience” is in the eye of the beholder, and debates could arise as to whether the motorist remained in the officer's custody and, if not, whether the officer deliberately placed the motorist in another person's custody in order to avoid a possible retraction."

Editor's note: Bright-line rules is what it's all about, isn't it? In a society where individualism is repressed, and conformism is rewarded, we should all applaud Iowa's decision not to be swayed by the thought of giving someone one more chance to prove they are innocent. Whew! That was a close one! One almost got away! It reminds me of the song from Music man entitled Iowa Stubborn, where the below lyric is found:

“We can be cold as our falling thermometers in December if you ask about our weather in July. And we're so by God stubborn we can stand touchin' noses for a week at a time, and never see Eye to Eye.”

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DUID Appeal - Idaho Bars Refusal Evidence at Trial

In the DUI-related drug arrest of State of Idaho v. Betancourt, --- P.3d ----, 2011 WL 3305382 (Idaho App.), a redacted videotape of the on-scene arrest of Betancourt for methamphetamine possession and DUI was played to a jury. The video showed the defendant refusing to consent to a search of his vehicle and that he wanted to protect his civil rights.. During closing arguments, the state made the following impermissible comments regarding this refusal during closing argument:

But there's more. Watch the video. You saw his demeanor on the video. He did not want those troopers to search that vehicle. His story is incredible. It doesn't make any sense. It changes. All that you can consider.

In addition, during rebuttal to Betancourt's closing argument, the prosecutor also stated:

But this case, the evidence you have heard is a lot more than mere proximity. Listen to the video, watch his demeanor. It speaks volumes about his concern about these troopers not getting into that car. He's trying to lead them astray and keep them out of that vehicle. That's clear.

There was no contemporaneous objection to either of these comments. Betancourt asserted on appeal that these comments urged the jury to infer his guilt from the invocation of his Fourth Amendment right to refuse to consent to the search of the vehicle, and the appellate court agreed:

The Idaho Supreme Court addressed an instance of prosecutorial misconduct similar to the comments made by the prosecutor in this case in State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007). There, the Court held that the prosecutor's questioning of an officer regarding Christiansen's refusal to consent to a search of his business constituted fundamental error. Id. at 470–71, 163 P.3d at 1182–83. The Court held that the same rationale for excluding evidence of an accused's invocation of his or her Fifth Amendment rights applied to the invocation of a defendant's Fourth Amendment rights. Id. at 470, 163 P.3d at 1182. Specifically, the Court relied on prior United States Supreme Court and Idaho Supreme Court cases for the proposition that reference to a defendant's invocation of a constitutional right deprives an accused of his or her constitutional right to due process and a fair trial. Id.; see also Griffin v. California, 380 U.S. 609, 615 (1965); State v. White, 97 Idaho 708, 715, 551 P.2d 1344, 1351 (1976).

* * * *

Other jurisdictions have addressed this issue and have also concluded that a prosecutor's reference to a defendant's refusal to consent to search constitutes a violation of the defendant's right to a fair trial. See United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978) (stating that, “if the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right”); Padgett v. State, 590 P.2d 432, 434–35 (Alaska 1979) (the constitutional right to refuse to consent to a search would effectively be destroyed if the exercise of such a right could be used as evidence of guilt); State v. Palenkas, 933 P.2d 1269, 1280 (Ariz.Ct.App.1996) (invocation of a constitutional right is probative of nothing other than the defendant's awareness of his or her constitutional rights). Based on the reasoning of the Idaho Supreme Court and the other above-listed authorities, we conclude that Betancourt has established the first prong of Perry because the prosecutor's comments during closing argument and rebuttal violated Betancourt's constitutional right to a fair trial.

Concluding, the court stated "the prosecutor's improper comment during closing argument regarding Betancourt's refusal to consent to a search of the vehicle constituted fundamental error. Accordingly, we vacate Betancourt's judgment of conviction and remand for a new trial."



Editor's Note: why doesn't the law stating that evidence of a refusal to consent to a search of a vehicle is inadmissible, also apply to refusal's to consent to a search of one's blood, breath and urine? When a defendant refuses, isn't he simply stating that he demands that an independent magistrate review the facts to determine whether compliance via the granting of a search warrant is required?



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OWI Appeal - Wisconsin Says Refusals Can Challenge Stop Too

Thanks to Wisconsin NCDD members Michele Tjader and Karyn Missimer for catching this one. In Re Anagnos, Slip Copy, 2011 WL 3111960 (Wis.App.), deals with whether a driver in a refusal hearing can challenge the lack of reasonable suspicion for stopping the car, and if so, whether there was reasonable suspicion therein.

In Wisconsin, the issues to be decided at a refusal hearing limited to considering: (1) “Whether the officer had probable cause to believe the [defendant] was driving or operating a motor vehicle while under the influence of alcohol ... and whether the [defendant] was lawfully placed under arrest for [OWI];” (2) whether the officer read the proper information to the defendant; and (3) whether the defendant refused to take the test. WIS. STAT. § 343.305(9)(a)5. The State therefore argued that it was improper at the refusal hearing for the circuit court to consider whether the deputy had reasonable suspicion to stop Anagnos.

However, the Wisconsin Court of Appeals held that the lawfulness of the arrest included the lawfulness of the stop itself:

"The refusal hearing statute states that a circuit court may consider “whether the [defendant] was lawfully placed under arrest.” WIS. STAT. § 343.305(9)(a)5.a. It was therefore proper for the circuit court to inquire into whether the deputy had reasonable suspicion to stop Anagnos. Without reasonable suspicion or probable cause to pull over Anagnos, the deputy had no authority to require Anagnos to submit to a chemical test. See Longcore, 226 Wis.2d at 6 (evidence obtained as the result of an illegal traffic stop is inadmissible)."

Having found that the lawfulness of the stop of the vehicle was necessarily included by implication in the 'lawfulness of the arrest', the court then found the stop itself was illegal here. The facts were summarized as follows:

"In the early morning of January 31, 2010, Walworth County Deputy Sheriff Garth Frami was stopped at a red light in the right-hand turn lane of a highway intersection when he noticed Anagnos's vehicle pull out of a Taco Bell and accelerate at “rapid speed” before stopping in the left-hand turn lane of the same intersection. The Taco Bell that Anagnos pulled out of was behind the deputy and to his left. The deputy thought that Anagnos had made an illegal left-hand turn over the median when he pulled out of the Taco Bell. After Anagnos pulled up to the left-hand turn lane of the intersection, the deputy observed Anagnos make a left turn “at a high rate of speed” and without using a turn signal. Based on this observation, the deputy pulled over Anagnos. Anagnos was subsequently arrested for OWI."

The Court of Appeals affirmed the finding of no reasonable suspicion to stop the vehicle. The median itself was only one to two inches high, and had no signs prohibiting a turn. The lack of a turn signal was not illegal, because Wisconsin only requires a signal “[i]n the event that any other traffic may be affected.” Lastly, there was insufficient evidence of the speed ogf the vehicle to establish speeding.

The appeals court affirmed the trial court, concluding that Anagnos's refusal to take the chemical test was lawful as the deputy did not have reasonable suspicion to stop Anagnos.


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DUII Appeal - Oregon Refuses to Suppress Test Refusal

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

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

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

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

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

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

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

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

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

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DWI Appeal - Minnesota Refusal Reversed Due to Erroneous Instruction on Probable Cause

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

The high court found that the instruction contained three flaws:

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

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

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

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

Continuing, the court stated:

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

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

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

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DWI Appeal - New Jersey CDL Driver Wrongfully Charged with Refusal

In State of New Jersey v. Nunnally, --- A.3d ----, 2011 WL 1660628 (N.J.Super.A.D.) the defendant was arrested for a violation of the NJ statute prohibiting operation of a commercial motor vehicle by a driver “with an alcohol concentration of 0.04% or more.”. After defendant refused to submit to the breath test, the arresting officer also charged him with violating the general refusal statute instead of the statute pertaining to refusal by a person driving a commercial vehicle (CDL refusal statute). In New Jersey, a complaint for refusing a breath test must be made within ninety days after the commission of the offense, which had already passed. The Law Division dismissed the refusal charge, agreeing with the municipal judge that the State could not prosecute defendant under the general refusal statute in these circumstances and the State could not amend the complaint to charge defendant with CDL refusal, on the day of trial and after the ninety-day statute of limitations had run. The State appealed.


On appeal, the State raised three arguments. First, it contended that the proposed amendment was solely to correct a “technical defect” in the complaint. The appeals court concluded that a failure to cite the correct substantive offense was not a “technical defect” subject to amendment.



Second, the State argued that the amendment should have been permitted because “a CDL refusal is the same substantive offense or a lesser included offense of a general refusal.” The appeals court concluded that CDL refusal was not a lesser included offense of general refusal, because the two offenses require proof of different facts.



Finally, the State asserted that it can prosecute defendant for violating the general refusal statute, which was cited in the complaint. The appeals court concluded that this driver could not be charged with a general refusal because he was arrested for CDL DUI (0.04% and above) but was never arrested for a general DUI (i.e. 0.08% or above):

"It therefore makes logical sense that an arrest for the predicate offense is an element of the corresponding refusal offense, because the purpose of the breath test is to obtain “scientific evidence” to prove the offense for which the person was arrested. Marquez, supra, 202 N.J. at 497. Of course, the Legislature conceivably could have structured the general and CDL refusal laws differently, to permit prosecution for general refusal based on an arrest for CDL DUI, but that is not how the laws were written. Further, even if we deemed the refusal statutes to be ambiguous, because they are quasi-criminal we would be constrained to construe them narrowly, in favor of the defendant."

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DWI Appeal - NJ Test Refusal Doesn't Require Proof of Machine Accuracy

In State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.) the defendant appealed his conviction for a test refusal, alleging amongst other things that there was no evidence that the breathalyzer test that he refused was reliable or admissible. Specifically he alleged:

"THE CANADIAN AMPOULE TESTING CERTIFICATES ARE NOT SELF–AUTHENTICATING, AND THE STATE CANNOT MEET ITS BURDEN OF ESTABLISHING THE SCIENTIFIC RELIABILITY OF THE BREATHALYZER, THEREFORE, MR. BURNS CANNOT BE CHARGED WITH REFUSAL."

The appeals court first cited to an earlier case, In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981), where the defendant asserted that the State must prove that a qualified operator of the breathalyzer was available at the time of the test request. "We disagreed, holding that such a requirement would infer a prerequisite to suspension in addition to those specified in the refusal statute."


The court then rejected the defendant's position that the State must 'prove-up' the admissibility, accuracy, or reliability of the test that the defendant had refused.



EDITORS COMMENT: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?



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DWI Appeal - Minnesota Refusal Reversed From Underinsured Cops

This case is brought to DAD through the watchful eyes of NCDD Member Doug Hazelton. In State of Minnesota v. Hester--- N.W.2d ----, 2011 WL 1563683 (Minn.) the defendant was convcited of criminal test refusal. A person can commit criminal test refusal in violation of Minn.Stat. § 169A.20, subd. 2 (2010), only if he or she refuses a request to take a chemical test of the person's blood, breath, or urine that is made by a “peace officer,” as defined in Minn.Stat. § 169A.03, subd. 18 (2010). On appeal, the Minnesota Supreme Court held that because the Lower Sioux did not comply with Minn.Stat. § 626.91, subd. 2(a)(2), by failing to carry the required liability insurance limits at the time of appellant's arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test.

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DUI Appeal - Texas DWI Law Bars Refusal Instruction

In Huckabay v. Texas, Not Reported in S.W.3d, 2011 WL 915083 (Tex.App.-Beaumont), the defendant alleged that the trial court committed reversible error by instructing the jury that it could consider his breath and blood test refusals as evidence. The Texas court started out by stating that evidence of a defendant's refusal to submit is admissible:

"[T]he jury in this case could have inferred from Huckabay's refusal to take a breath or blood test that Huckabay believed he was intoxicated. See Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App.1988) (noting that “it was not improper to simply argue that appellant refused [testing] because he was intoxicated”); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (finding that a jury may consider refusal to provide breath or blood samples as evidence of guilt); see also Tex. Transp. Code Ann. § 724.061 (West 1999) (“A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.”)."

Having acknowledged that the evidence of the refusal was admissible, the defendant still argued that a jury instruction regarding the refusal was still an illegal highlighting of the evidence. The appeals court agreed:

A person's refusal to take a breath or blood test may be introduced into evidence at the person's trial. Tex. Transp. Code Ann. § 724.061. However, “a jury instruction informing the jury that it may consider evidence of a refusal to take a breath test constitutes an impermissible comment on the weight of the evidence.” Bartlett v. State, 270 S.W.3d 147, 154 (Tex.Crim.App.2008); FN1 see Hess v. State, 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). While the instruction given to the jury did not misstate the law in this case, trial courts are not authorized to highlight the defendant's refusal to submit to alcohol testing from the other evidence in the case by instructing the jury to consider the refusal as evidence. Hess, 224 S.W.3d at 515. “By singling out that evidence, the trial court violate[s] Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and commit[s] a jury-charge error.” Bartlett, 270 S.W.3d at 154.; see Tex.Code Crim. Proc. Ann. § 36.14 (West 2007) (specifying that the judge shall not express any opinion as to the weight of the evidence in the charge of court), § 38.04 (West 1979) (specifying that the jury is the exclusive judge of the facts proved except where the law directs that a certain degree of weight is to be attached to a certain species of evidence), § 38.05 (West 1979) (recognizing that the judge shall not comment upon the weight of the evidence or make any remark calculated to convey to the jury his opinion of the case).

Even though the introduction of a jury instruction regarding the refusal was an illegal highlighting of the evidence, and an error, the appeals court nevertheless found the error harmless and affirmed the conviction. It found that the following conduct by the State in their closing arguments did not overly emphasize the erroneous instruction:

In the State's closing argument, the prosecutor briefly reviewed each paragraph of the charge with the jury. With respect to paragraph three, which is the paragraph containing the instruction about Huckabay's refusal to test, the prosecutor read the instruction and then said: “That's here in your charge.” The prosecutor later argued that a finding of not guilty would reward drivers who drank and then refused to be tested, and that Huckabay refused to be tested because he knew he would not pass the tests. Finally, the prosecutor asked the jury not to award Huckabay for hiding the evidence by refusing to submit to the tests. However, the prosecutor did not mention paragraph three of the charge during this portion of the closing argument. In summary, the prosecutor referred to the trial court's instruction only once during closing argument. We conclude the record demonstrates that the prosecutor did not emphasize the court's instruction, focus the jury on the court's instruction, or exploit the instruction by placing the weight of the trial court behind it.


NOTE: The use of a pre-trial motion in limine, with supporting caselaw, to prevent this instruction from ever becoming an issue, would have been a helpful tactic. of course, it is also possible that defense counsel did so in this case and that the trial judge still committed error.


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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:

"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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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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