Disbarred Lawyer Allegedly in Court with Client Is Jailed; Chicago Case Is 2nd in 2 Months - News - ABA Journal

Disbarred Lawyer Allegedly in Court with Client Is Jailed; Chicago Case Is 2nd in 2 Months - News - ABA Journal 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!

DUI Appeal of the Day (DAD) - Illegal Inventory Search of Vehicle

In Kilburn v. State of Florida, --- So.3d ----, 2011 WL 589686 (Fla.App. 1 Dist.), the defendant was arrested for DUI. Pursuant to placing the driver and sole occupant into custody, and because the vehicle was in an unsafe place, the vehicle was impounded and towed. As part of the impoundment process, the deputy conducted an “inventory search” of the truck. The deputy testified that Sheriff's Office policy required an inventory search to be done whenever a vehicle is towed, but that there were no standardized criteria or procedures for conducting such a search. During the search, the deputy found marijuana (less than 20 grams) and pills that turned out to be alprazolam and hydrocodone. Kilburn was charged with possession of these drugs in addition to the felony DUI charge. On appeal, the defendant claims that his motion to suppress based upon an illegal search should have been granted. The appeals court agreed. The court first found that the impoundment itself was legal. The court discussed the general law applicable to inventory searches:

A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). The state has the burden to prove that an exception to the warrant requirement applies. See Hilton v. State, 961 So.2d 284, 296 (Fla.2007). Here, the state relied on the exception that allows law enforcement to conduct an inventory search of an impounded vehicle. See Colorado v. Bertine, 479 U.S. 367, 371 (1987) (observing that “inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment”); South Dakota v. Opperman, 428 U.S. 364 (1976) (discussing the justifications for inventory searches of impounded vehicles and explaining that federal and state courts have consistently held that inventory searches conducted pursuant to standard police procedures are reasonable).

In order for this exception to apply, the inventory search must be “conducted according to standardized criteria.” FN3 State v. Wells, 539 So.2d 464, 468 (Fla.1989) (quoting Bertine, 479 U.S. at 374 n. 6), aff'd by Florida v. Wells, 495 U.S. 1 (1990). The requirement for standardized criteria serves to limit police discretion in determining the scope of the search and ensures that the police will not abuse the exception and use the inventory search as a subterfuge for a criminal investigatory search. Id. at 469; see also Rolling v. State, 695 So.2d 278, 294 (Fla.1997) (explaining that the test for determining the validity of an inventory search is one of reasonableness and “[t]he reasonableness of a purported inventory search is dependent upon it being a true good-faith inventory search and not a subterfuge for a criminal, investigatory search”).

However, even though impoundment was lawful, the court found the actual search invalid. The court stated:

"Here, the trial court did not make any findings regarding the existence of, or the deputy's compliance with, standardized criteria in conducting the inventory search of Kilburn's truck. Although the deputy testified that it was standard Sheriff's Office policy to conduct an inventory search whenever a vehicle was towed, he also testified that there were no standardized criteria for performing such a search. Additionally, the state did not present any evidence that it was standard Sheriff's Office policy to open closed containers found during the search, such as the pill bottle in Kilburn's truck where the drugs were found. Accordingly, under these circumstances, the trial court erred in denying Kilburn's motion to suppress the drugs found in his truck. See Wells, 539 So.2d at 469 (reversing denial of motion to suppress based upon the absence of a standardized policy requiring the opening of closed containers found during a legitimate inventory search); Beezley v. State, 863 So.2d 386 (Fla. 2d DCA 2003) (reversing and remanding for discharge because trial court should have granted dispositive motion to suppress where no indication that police conducted inventory search according to standardized criteria); Patty v. State, 768 So.2d 1126 (Fla. 2d DCA 2000) (directing granting of motion to suppress where state failed to present evidence of standardized criteria used in inventory search); Roberson v. State, 566 So.2d 561 (Fla. 1st DCA 1990) (holding that search of closed can was illegal where evidence did not show that it was standard procedure to open closed containers)."

Because the motion to suppress was dispositive to the drug possession charges, the appeals court remanded with directions for the trial court to discharge the defendant on that count.

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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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Virginia's breath test machines are unreliable and produce inflated resu...

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DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


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Holland DWI court now nationwide model | WOOD TV8

Holland DWI court now nationwide model | WOOD TV8 Program began in 2004 Updated: Monday, 14 Feb 2011, 6:35 PM EST Published : Monday, 14 Feb 2011, 4:37 PM EST By Steve Kelso HOLLAND, Mich. (WOOD) - When Holland's DWI Court began in 2004, it was met with skepticism, Ottawa County Prosecutor Ron Franz said his office wasn't quite sure how it would work. Now, this court in the 58th District has been chosen to serve as a training ground for other DWI courts around the country. The idea behind DWI court is to curb repeat offenses since jail was not serving as a deterrent. The court treats repeat offenders through programs that attack the underlying addiction and coordinates law enforcement, prosecutors, judges and treatment providers. Michigan now has over 40 such courts and is seen as a leader nationwide. "It means that Michigan is trying to make a difference in these people lives," said David Wallace, the director of the National Center for DWI Courts . "Trying to make the community safer so that we can drive on the roads without having to worry about getting killed by a drunk driver and recognizing that jail alone does not change an alcoholics behavior." DWI courts seem to be working. A two-year study by the Michigan Supreme Court found DWI court defendants were: •three times less likely to be arrested committing any crime •19 times less likely to be arrested for drunk driving. And the National Center for DWI Courts claims the system saves taxpayers money by reducing accidents, court costs and jail sentences. Franz, the Ottawa County prosecutor, is now a big supporter of DWI courts. "If someone were to relapse while they were in the program or to fail one of the requirements, you do not toss them out, you work with them, you sanction them and you keep them in the program," he told 24 Hour News 8. "As a prosecutor, you like things to be black and white. If you fail, you go back to jail. And that isn't the way this works." The 58th District's DWI court is one of only four academy sites in the country that will serve as a training and education location for hundreds of other courts nationwide. 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!

DUI Appeal of the Day (DAD) - Margin of Error Defense Rejected

In Borger v. Dep't of Motor Vehicles, --- Cal.Rptr.3d ----, 2011 WL 541131 (Cal.App. 2 Dist.), the driver challenged his suspension after giving two breath tests on an Intoxilyzer 5000 of .09 and .08. His expert, Jay Williams, testified that all “Intoxilyzer 5000” machines have an inherent margin-of-error of plus or minus .02 percent. He said that respondent's BAC could be “anywhere between a .06 and a .10” and could not say with reasonable scientific certainty that his BAC was .08 percent or higher. The DMV hearing officer did not credit Williams' testimony and found that respondent was lawfully arrested for DUI and driving with a BAC of .08 percent or more. (§ 13557, subd. (b)(2).) However, the trial court credited Williams' testimony. It impliedly found that respondent's BAC was less than .08, granted the writ petition, and ordered DMV to set aside the suspension of respondent's license. This appeal followed.
Rejecting the defense, the appeals court stated:

The trial court's terse analysis does not inspire confidence. Williams testified that an “Intoxilyzer 5000” that is in working order meets “the Adams requirements” ( People v. Adams (1976) 59 Cal.App.3d 559) but has an inherent margin-of-error of “plus or minus .02” percent. There is no disagreement that the “Intoxilyzor 5000” is an “approved instrument” within the meaning of Title 17, article 7, section 1221.3. Williams did not examine the machine used to test respondent's BAC on March 18, 2009, and he offered no opinion that the machine was not in working order. The trial court inexplicably credited Williams' theoretical lowest possible BAC and ignored the theoretical highest possible BAC. The logic of the trial court ruling concerning an impossibility to determine respondent's BAC is unknown. In reality, Williams' conclusion would “overrule” every “Intoxilyzer 5000” reported result unless it is .10 or more. This would change the California Code of Regulations, title 17, article 7, sections 1221 through 1221.5 and effectively remove this breath testing device from the Department of Motor Vehicle's “approved instrument” list. Other than testifying that he owned “Intoxilyzer 5000” machines, Williams offered no reasoning to support his conclusion. He offered no evidence of any scientific tests that he conducted with any such machine let alone the one used here. The record does not show that any other experts in the scientific community have reached similar conclusions or that any scientific literature supports Williams' conclusion. To say that his conclusion is bald is an understatement.

Further unnecessary ripping of the expert then occurred:

“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]” ( Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) ‘ “ ‘ “The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion....” ‘ (Quoting Carter v. v. United States (D.C.Cir.1957) 252 F.2d 608 617 [102 App. D.C. 227].)” ( People v. Coogler (1969) 71 Cal.2d 153, 167.) Williams' bald conclusion is speculative and cannot be fairly characterized a “substantial evidence.”

Editor's note: Obviously, this was a political decision - not an evidentiary one. Although couched in scientific terms (i.e. "how do we know that the expert really knows what he is talking about unless he teaches us to know it too?") the judges on the appellate court were simply unwilling to accept a simple unrefuted proposition, that the machine has a margin of error of =/- 0.02. Normally, case law states that the trier of fact cannot disregard unrefuted testimony. And sometimes, a scientific proposition is so simple, that nothing further need be said. An example might be that "two objects of the same shape will fall to earth at the same rate." Even though a judge might not know that to be true until it is told to him by an expert, the law doesn't require that Galileo re-climb the Tower of Pisa all over again, just to placate the ignorant and/or obstinate.


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DUI Appeal of the Day (DAD) - Revocation Period for Out-of-State DUI Conviction

In DiGregorio v. registrar of Motor Vehicles--- N.E.2d ----, Mass.App.Ct. , 2011 WL 522063 (Mass.App.Ct.), the defendant was a Massachusetts driver who frequently visited Connecticut. He has a long history of driving infractions in both States. In 1997, he was convicted in Massachusetts of OUI, his first such conviction. He was then convicted of OUI in Connecticut on April 18, 2000. For this conviction, Connecticut suspended his driving privileges in that State, and on May 24, 2000, Connecticut placed a notice of that suspension in the National Driver Register (NDR), an interstate repository for the sharing of driving records. The Massachusetts registrar did not learn of the out-of-State conviction or suspension at that time. He was again arrested in Connecticut for OUI in June of 2004. He was convicted of that offense on October 4, 2004 (his second OUI conviction in Connecticut and his third overall). However, the registrar apparently had no occasion to check the NDR database at this time and instead first learned of the 2004 Connecticut incident from her review of NDR records in April of 2007.
Because DiGregorio had been convicted for a third time of driving a motor vehicle while under the influence of intoxicating liquor (OUI), the Registrar of Motor Vehicles (registrar) was prohibited by statute from restoring his driving privileges until after 8 years. The main issue on appeal had to do with when the 8 years began - from the date of conviction, or from the date the DMV learned of the out-of-state conviction.
Ultimately, the case was resolved based on the specific language of the state statute; under the express terms of that subsection, the registrar is prohibited from restoring the driving rights of a third time offender “until eight years after the date of conviction.” The principal argument of the DMV was that relying on the date of conviction for out-of-State violations would create serious adverse policy consequences, because the registrar retains no control over the timeliness of the information that other States enter into the NDR system. Specifically, they suggested that relying on the “date of conviction” would allow hazardous drivers back on the road sooner or allow them to escape due punishment. As the opinion stated:

"This argument ignores the maxim that “[w]here ... the language of the statute is clear, it is the function of the judiciary to apply it, not amend it.”

As it is likely that other states have similar delayed notice and/or reporting issues, this case may come in handy in shortening the length of a suspension or revocation therein.


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DUI Appeal of the Day - When Car Mistakenly Pulls Over There is No Illegal Stop and Seizure

In State of Kansas v. Reiss, --- P.3d ----, 2010 WL 5129859 (Kan.App.), Rex Reiss had the misfortune to be driving one of two vehicles directly behind a blue pickup that had no lights. When an officer pulled behind the three vehicles to stop the one with no lights on, Reiss stopped directly behind the blue pickup. When the officer pulled his car right behind Reiss (there was no room between Reiss' truck and the blue pickup), Reiss immediately got out of the truck and began walking toward the police car, vehemently questioning what he'd done wrong. The officer then directed Reiss to go back to his car. When the officer finally approached, the interaction led to a drunk driving arrest. The district court held that Reiss had not been seized, even when the officer ordered Reiss back to his truck, because the officer was merely taking normal steps that a reasonable and cautious officer would take for safety when a single officer was on hand and more than one vehicle had stopped.

The Kansas court of Appeals discussed the law of search and seizure:

"In a voluntary encounter between a citizen and a police officer, the officer is free to ask questions even in the absence of any suspicion the citizen is up to no good. See State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010). But to stop a person traveling on the roadway, even briefly for the purpose of investigation (an “investigatory detention”), the officer must have reasonable suspicion that something's amiss, meaning an objective and specific basis for believing that the person being detained is involved in criminal activity. See State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008). And to arrest someone, the officer must meet an even higher standard: probable cause, which exists when a person of reasonable caution could conclude from the known facts that an offense has been or is being committed. State v. Fewell, 286 Kan. 370, Syl. & 4, 184 P .3d 903 (2008); Barriger, 239 P.3d at 1291."

Whether a person inadvertently stopped by police has been seized was a matter of first impression for Kansas. That issue, however, had been discussed extensively in a recent decision of the United States Court of Appeals for the Ninth Circuit, United States v. Al Nasser, 555 F.3d 722, 725-32 (9th Cir.2009). The Ninth Circuit concluded that a driver was not seized-and therefore no Fourth Amendment violation had occurred-when the driver stopped his vehicle because of police activity but the officers did not intend for that driver to stop. 555 F.3d at 731-32. The defendant in Reiss continued to argue that whether or not he was seized when he first pulled over, the encounter became a seizure when Officer Ritter ordered Reiss to return to his truck. The appeals court herein agreed with Reiss on this point:

"A seizure occurs when there is a show of authority by the officer that would communicate to a reasonable person that he or she is not free to leave and that person submits to the show of authority. Brendlin v. California, 551 U.S. 249, 254-55, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003). Officer Ritter's forceful commands led Reiss to return to his truck. Because Reiss was clearly seized at that point and no incriminating evidence was obtained before then, we need not determine whether he had been seized when he initially pulled over, even though the officer hadn't intended to stop him."

In finding the seizure reasonable, the Kansas court stated as follows:

"Ritter said he was “concerned on what [Reiss'] purpose was” when Reiss approached the officer, and this caused the officer to proceed cautiously. When Ritter approached Reiss' truck, Ritter asked why Reiss had gotten out of his truck and for identification rather than simply telling Reiss he was free to leave. On these facts, however, we see nothing unreasonable about that. Given the aggressive approach Reiss had taken at the scene, Ritter was properly concerned about his safety and asking for identification in this circumstance was itself only a minimal intrusion. See Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v.. Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir.), cert. denied 552 U.S. 1031 (2007).

Sometimes the fish jumps into the boat. Such was the case for Rex Reiss.


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Illinois Adds Mandatory Interlocks Laws to New DUI Arrests

Governor Quinn has just signed into law Public Act 96-1526. This law will require all drivers accused of DUI (with no priors in the past 5 years) to install a breathalyzer in their car unless they file documents in court opting out! Therefore, it is imperative that persons arrested for DUI consult an attorney immediately, or they will get an order in the mail to install the device before it is too late.

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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) - Destruction of Blood Sample, In-Court Identification and Due Process

In Iowa v. Kardell, Slip Copy, 2011 WL 441961 (Table) (Iowa App.) the defendant was convicted of two counts of homicide by vehicle by operation while intoxicated. Amongst other issues on appeal, NCDD member and Iowa OWI attorney Matt Lindholm complained that the destruction of the blood sample violated the defendant's due process rights. In the case, the blood was analyzed and the result was 0.07 BAC. Notice of the result was not sent to the defense until after the blood sample was routinely destroyed (Iowa has a 90 day retention and destruction policy). The defendant claimed that the destruction a) violated state laws regarding the safekeeping of personal property b) interfered with his statutory right to independent testing and c) violated his due process rights under both the federal and state constitutions. The defense was unsuccessful on all 3 grounds.

Specifically, the court held that the argument that state law on disposition of personal property required him to receive notice prior to destruction was not capable of being raised for the first time on appeal, so they refused to address it. (This was a clever and great argument by the defense!) Second, they held that the right to an independent test was not violated by the destruction of the sample before notice was given to the defendant, holding that section 321J.11 does not impose a sua sponte duty to provide the defendant with the test results; rather, the only statutory duty is to provide the results upon Kardell's request.

Finally, regarding the due process claim, the court stated:

The Youngblood court was unwilling to “read the ‘fundamental fairness' “ due process requirement to impose on the State an “absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289. Accordingly, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. (emphasis added). The Iowa Supreme Court adopted this standard in State v. Dulaney, 493 N.W.2d 787, 791 (Iowa 1992), a drunk driving case in which the defendant sought to suppress test results from a blood withdrawal.Like Kardell, the Dulaney defendant argued the State violated his United States and Iowa due process rights by destroying his blood sample before he was able to have it independently tested. Dulaney, 493 N.W.2d at 790. The Dulaney court discussed and applied the standards established in Trombetta and Youngblood. Id. at 790-91. The Dulaney court specifically recognized the requirement a criminal defendant show bad faith on the part of the State and found “there is no evidence the State intentionally destroyed the sample in an effort to deprive Dulaney of evidence as required by Trombetta and Youngblood. The DCI lab simply destroyed the sample pursuant to its usual procedure....” Id. at 791. The court ruled: “[T]he State's blood sample merely could have been subjected to tests, and the results merely might have exonerated Dulaney. This is not enough under Trombetta and Youngblood to find a violation of Dulaney's due process rights.” Id. Similarly, Kardell's blood sample “merely could have been subjected to tests” with results that “merely might have exonerated” Kardell. See id. This is not enough to find a violation of Kardell's due process rights. See id.; see also State v. Steadman, 350 N.W.2d 172, 175 (Iowa 1984) (stating “the failure of the State to automatically furnish an accused with a sample ... for independent testing is not a denial of due process”).

The defendant also raised claims involving identification of the defendant as the driver in open court. The defendant argued that the court should have granted his motion for judgment of acquittal because there was insufficient evidence “to provide a sufficient nexus between the person who was driving the vehicle and the person who was charged in the trial information.” Kardell contended that the arresting officer's positive identification of Kardell on direct exam was “rendered useless” on cross-examination because he admitted his identification was based upon the on-scene statements of Trooper Pigsley and Trooper Pigsley did not testify at trial. Among the reasons why the court found sufficient identity had been proven, the court said:

While “proof of the identity of the person who committed the offense is essential to a conviction ... identification may be established and inferred from all of the facts and circumstances in evidence.” Butler v. U.S., 317 F.2d 249, 254 (8th Cir.1963) (citations omitted). * * * “[T]he failure of any ... witnesses to point out that the wrong man had been brought to trial [can be] eloquent and sufficient proof of identity.” Id. (quoting United States v. Weed, 689 F.2d 752, 755 (7th Cir.1982))* * * [P]roper identity can be inferred when the defendant does not complain the wrong person has been brought to trial. See Butler v. United States, 317 F.2d 249, 254 (8th Cir.1963). The Derek Kardell seated in the courtroom never complained he was not the same Derek Kardell whose truck crashed in October 2007."

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Breathalyzers Read 20-40% Higher in DUI Cases; Cover-up Revealed

DC Breathalyzer Calibration Questioned

WASHINGTON - A man hired to supervise the Breathalyzer unit of the D.C. Police Department is blowing the whistle on what he says are a decade of questionable test results.
Writing in a memo to the D.C. Attorney General he said the officers running the program rarely, if ever, performed accuracy tests on the machines used to measure the blood-alcohol content of drivers suspected of D-W-I.
Two and a half months after taking over the Breath Alcohol Testing Program, Ilmar Paegle, a retired U.S. Park Police officer, wrote a detailed four page memo in which he claims the protocol to ensure the machines were properly calibrated has not been followed since at least 2000. That’s a claim the D.C. Attorney General Office calls just an "opinion."
But Paegle lays out his case in a memo now in the court file of a man convicted of D-W-I. That man wants a new trial.
In the memo addressed to Assistant Attorney General Kimberly Brown, Paegle wrote,
"From my inspection of the instrument files (the machines) have never been checked for accuracy even though an accuracy test is the only legal requirement a breath testing instrument must meet in the District of Columbia."
Paegle continued, "The calibration has to be verified by accuracy tests, and these legally mandated tests of (the machines) apparently have never been done."
David Benowitz represents Sultan Epaye, the man who wants a new trial.
"The ramifications are enormous,” said Benowitz in an interview Tuesday outside D.C. Superior Court. "It goes back for years, there are plenty of people who served jail time based on what may very well be false tests or inaccurate tests, the civil liability could be huge, it just has a huge impact on the integrity of the entire criminal justice system."
Included in the court case jacket are internal D.C. Police documents showing no accuracy tests were performed on the machines after they were calibrated. Those records go back to at least 2006.
But Sarah Branch, the Prosecutor in the case, takes issue with Paegle's claims, writing in a motion for dismissal of conviction, "Mr. Paegle's opinion is based on a review of documents that were created and kept by his predecessor, Officer Kelvin King, the former Chemical Testing Program Manager for MPD. Therefore, Mr. Paegle's opinion consists of nothing more than conjecture and assumptions."

"We strenuously disagree with that characterization," said Benowitz, "It's clear what Mr. Paegle's is saying is based on fact."
In the memo, Paegle also criticizes D.C. Police for the lack of oversight and supervision.
Back in February the Attorney General admitted his office was looking into dozens, if not hundreds of cases, after learning from Paegle the machines were improperly calibrated in the fall of 2008 and were not tested for accuracy.
What Paegle is saying today raises questions about test results as far back as 2000 or longer.
Paegle declined to comment, as did D.C. Police Chief Cathy Lanier.
Attorney General Peter Nickles referred us to the motion filed in court.



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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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Incriminating booze tests face fresh scrutiny - health - 10 February 2011 - New Scientist

Incriminating booze tests face fresh scrutiny - health - 10 February 2011 - New Scientist 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!

DUI Appeal of the Day (DAD) - Stopping Car of Unlicensed Owner

In Wisconsin v. Seehafer, Slip Copy, 2011 WL 383743 (Wis.App.) the defendant appealed his conviction for DWI based upon a claim of an illegal stop. The facts are as follows:

Officer Mark Hull saw a car he believed to be owned by a person who did not have a valid driver's license. Hull caught up to the car and ran a computer check on the license plate. Hull learned the car was not registered to the person he initially believed, but rather it was registered to a woman who did not hold a valid driver's license. To investigate whether the car was being operated by an unlicensed person, Hull activated his emergency lights and the car pulled into a vacant lot. Hull could see two people in the car as he approached the car from the rear. When Hull got to the driver's window, he saw that the driver was a male. Hull asked the driver for identification, and the driver produced an expired instructional permit, identifying himself as Michael Seehafer. Hull then ran a computer check on Seehafer, and learned that Seehafer's license was revoked due to an operating while intoxicated conviction. That check showed that Seehafer had several prior OWI convictions.

On appeal, the defendant conceded that the initial stop was proper, given that the car was registered to an unlicensed driver. However, the defendant claimed that once the officer saw that the car was being driven by a male (the unlicensed owner was female) that the basis for the stop was dissipated.

The appeals court disagreed. Relying on a previous decision, they held that:

"This court [has] held that after the officer ascertained the driver was not the person she was looking for, “it was reasonable ... to make a report of the incident, ... and for that purpose it was reasonable for her to ask for Williams's name and identification.”

Editor's opinion: the holding is contrary to recent case out of Illinois, that held that an initial stop was improper
where it was broad daylight, and the officer made no attempt to confirm that the driver resembled the unlicensed owner of the vehicle. As such, it may have been a tactical error to concede the propriety of the stop here, in order to at least advance an argument that prior decisions were also incorrect. Additionally, the court's claim that the need "to make a report of the incident" can somehow counter-act the "right to be free from unreasonable searches or seizures" is (IMHO) both farcical and disingenuous.


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DUI Appeal of the Day (DAD) - Collateral consequences, DUI, Child Endangerment

On occasion, the DAD column has discussed the various collateral consequences that can occur from DUI, such as FAA, CDL, life insurance, bankruptcy, punitive damages, etc. The case of In Re D. McD.,--- A.3d ----, 2010 WL 5116131 (Vt.), 2010 VT 108 is another such event. here, the Supreme Court of Vermont had to determine whether having his two six-year-old children in the vehicle while driving intoxicated constituted a "risk of harm" under Department of Children and Family Services (DCFS) proceedings. “Risk of harm,” is defined in Vermont as a “significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.” Such a determination would cause the driver's name to be placed in the child protection registry, alongside child sexual molesters and child abusers. Under the statutory scheme in place, the only question before the Board was whether a reasonable person would believe that the child was placed at a substantial risk of harm due to the petitioner's actions on the date in question. Petitioner's ex-wife and his therapist opined that petitioner had learned from the incident and that he was unlikely to pose a risk of harm to children in the future. The Board also noted that an internal DCF assessment had rated petitioner as a negligible risk for future abuse or neglect of his children. In light of all the circumstances, the Board concluded that petitioner was unlikely to pose a risk of future harm to children and he thus should not be included in the registry. DCF appealed.
On appeal, the Supreme Court reversed, holding that all of the subsequent mitigation was irrelevant to the analysis. "The Board was not asked to decide petitioner's future risk of harm, and petitioner's rehabilitative efforts, while laudable, were irrelevant to the question before the Board. The Court remanded for a correct analysis. "On remand, the Board must apply DCF's policy on single egregious acts to determine if petitioner placed his children at risk of harm. Thus, the Board must consider whether a reasonable person would believe that: “[t]he parent or caretaker did the act alleged; [t]he act was egregious; [t]here was a significant risk that the child could have been physically injured as a result; and, [t]he physical injury would be serious.”

Editors note: The number of cases involving drugged and drinking mothers (or fathers) with children in the car is increasing. In fact, I handled one with Justice Scalia's daughter involving 5 children in her vehicle. Further, such conduct can be a basis for separate charges (i.e. "Child Endangerment") or increased penalties (same as BAC-based add-ons) or independent proceedings initiated by DCFS. These cases require great care and delicacy, and often a global resolution.


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DUI Appeal of the Day (DAD) - The Right to Contest Restitution

In People v. Smith, Not Reported in Cal.Rptr.3d, 2011 WL 288457 (Cal.App. 6 Dist.), the defendant claimed on appeal that he was deprived of his right to due process when, after pleading guilty to DUI and Inflicting Great Bodily harm, the court ordered defendant to pay $285,525.65 in restitution for the medical bills of the boy who defendant's vehicle had struck and seriously injured. At a subsequent hearing, the court modified the restitution order, again over defendant's objection, so that, instead of the restitution being payable to the boy, the bulk of the money would go to “Healthy Families” and the remaining amount would be paid to the boy's mother. Defendant was never afforded a hearing on the amount of restitution. Defendant's trial counsel objected to the court setting the amount of restitution. The defendant on appeal cited to an earlier case in support of his right to a hearing:

“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Pen.Code, § 1202.4, subd. (f)(1).) “A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” ( People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550 ( Sandoval ).) In Sandoval, the probation report noted the amount of damage but did not recommend that restitution be ordered in that amount. At the sentencing hearing, the court imposed restitution in that amount. Because this order was “unexpected,” the Court of Appeal found that the defendant had been deprived of an opportunity to dispute the amount of restitution. ( Sandoval, at p. 1550.)

The appellate court in the instant case agreed with the defendant:

Here, the probation report did not recommend that the court set the amount of restitution, and defendant's trial counsel had apparently just received the documentation regarding the amount of restitution on the day of the sentencing hearing. Defendant objected and sought the opportunity to contest the amount, but the court did not afford him that opportunity. Hence, as in Sandoval, defendant was deprived of his statutory right to contest the amount of restitution. A remand for a restitution hearing is the appropriate disposition.

Editor's note: This case is helpful in those circumstances where a prosecutor or court feel the need to pressure a defense counsel. Additionally, during these hearings, it may turn out that some of the bills were reduced by medicare, medicaid, or duplicates, etc. It remains the obligation of the defense attorney to verify that all amounts are accurate, and that a defendant's rights are not violated in all aspects of a case.

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DUI Appeal of the Day (DAD) - Unwitnessed violations, Touching Lines, Turn Signal Issues make Bad Stop

In State of Missouri v. Loyd, --- S.W.3d ----, 2010 WL 5150173 (Mo.App. W.D.) the defendant driver exited a casino parking lot, turning right onto the roadway, allegedly without first using a turn signal. On appeal, the court found that a turn signal was not required when turning from private property onto a public highway. Finding that the 'rules of the road' only applied to vehicles on a public roadway, the court also construed the turn signal statute as only requiring signaling when the approach to the turn (where the duty to signal begins) is also on a public roadway. NOTE: most state statutes on turn signals are similar in this regard - does anyone use a turn signal when exiting their driveway?
The State also tried to argue that the defendant violated another law when he turned into the center lane instead of the nearest lane. A videotape confirmed the event. However, the appeals court rejected this incident as a basis for the stop, because:




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 .
The above appellate court position is certainly valuable, as many other state courts might uphold stops based on unwitnessed violations., so long as they are on videotape.
The State also tried to support the stop based upon the driver's touching of the center line:
At the suppression hearing, the officer testified that prior to pulling over the vehicle, he observed Loyd's car driving “with its right wheels on the center line as it went around the corner.” The dash cam video supports that Loyd's tires did touch, but not cross, the white stripes dividing the lanes. This Court has previously held that such a minor deviation does not provide the police probable cause to detain the driver in order to cite him for a traffic violation. “[T]here is extensive case law from numerous jurisdictions holding that slightly crossing over the fog line once or twice for a moment does not, in and of itself, justify a traffic stop.” State v. Abeln, 136 S.W.3d 803, 810, n. 7 (Mo.App.W.D.2004) (citations omitted); see also State v. Mendoza, 75 S.W.3d 842, 845-46 (Mo.App.S.D.2002) (holding that driving “onto but not over the left yellow line” did not “justify the issuance of a warning,” and therefore finding that the police “lacked probable cause or reasonable suspicion to stop Mendoza's vehicle”).


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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The Westerner: The Whiskey Speech

The Westerner: The Whiskey Speech: "The fools have adjourned and a friend sent this great speech given at the adjournment of another august body. Play it just like you do the S..." 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!