DUI Law - Indiana Driver Fights Forced Catheterization

In Lockard v. City of Lawrenceburg, Indiana, Slip Copy, 2011 WL 3902796 (S.D.Ind.) the defendant sued the City for alleging violating his civil rights when they forced a catheterization even after the defendant had submitted to a blood draw. At approximately 10:40 p.m. on March 13, 2009, Officer Miller pulled over Mr. Lockard after observing him driving at a high rate of speed and failing to stop at two stop signs. While speaking with Mr. Lockard, Officer Miller detected an odor of alcohol and observed physiological signs of intoxication, such as bloodshot eyes and slurred speech. Officer Miller began an OWI investigation, performing a series of field sobriety tests, which Mr. Lockard failed, and administering a portable breath test, which registered a reading of 0.07%. Officer Miller then asked Mr. Lockard to submit to a chemical test after advising him of Indiana's Implied Consent Law, but Mr. Lockard refused. Accordingly, Officer Miller arrested Mr. Lockard and applied for a search warrant. A search warrant was issued on March 14, 2009, at 12:10 a.m. by Magistrate Kimberly Schmaltz of the Dearborn Superior Court.

The warrant provided: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

At roughly 1:35 a.m., Officer Miller and Officer Lanning took Mr. Lockard to bed number nine in the Emergency Department; the curtains were pulled around the bed to protect Mr. Lockard's privacy; Officer Miller handcuffed Mr. Lockard to the bed; and Officer Miller and Officer Lanning grabbed Mr. Lockard's ankles in order to restrain him “so he wouldn't kick any of the nurses.” Officer Miller testified that during this time, Mr. Lockard was actively resisting the procedure. When asked if he complied with the catheterization, Mr. Lockard testified that he was “forced into complying.” Mr. Lockard told Nurse Walston that he did not want to be catheterized. Nonetheless, Nurse Walston pulled down Mr. Lockard's pants, exposing his genitalia, and prepared a sterile field by putting on sterile gloves and cleansing Mr. Lockard's penis with Betadine.


Nurse Walston subsequently prepared a straight size 16 Foley catheter for insertion by applying lubrication to the catheter. She then attempted to catheterize Mr. Lockard by beginning to insert the Foley catheter into his penis. Around this time, Mr. Lockard informed Nurse Walston that he had an enlarged prostrate. For this reason (and because she was perceiving a lack of cooperation on Mr. Lockard's part), Nurse Walston removed the Foley catheter and began preparing a Coude catheter, which is smaller and can pass through an enlarged prostrate. The procedure with the Coude catheter was completed and a urine specimen was obtained in roughly two minutes. Mr. Lockard claims that he suffered considerable pain during the procedure, describing it as “[j]ust as if somebody would take a burning hot coal and stick it up your penis” and “worse than a toochache.” Mr. Lockard was not examined following the catheterization, and he was discharged from the Dearborn County Hospital shortly after 2:00 a.m., into the custody of the Lawrenceburg police.


Mr. Lockard was taken to jail and charged with OWI, OWI Refusal, and Obstruction of Justice for refusing to consent or cooperate in the catheterization.FN5 While at jail, Mr. Lockard noticed that his urine was “cloudy.” Roughly one week after the incident, on March 20, 2009, Mr. Lockard visited Dr. Lynn Eiler for problems related to burning urination. Dr. Eiler prescribed Mr. Lockard antibiotics, which apparently cured the burning. However, Mr. Lockard's urinalysis was negative for infection. On June 15, 2009, Mr. Lockard again sought treatment for urination problems, this time with Dr. Samantha Wood. Dr. Wood referred Mr. Lockard to Mr. Michael Maggio, who, on July 6, 2009, noted that Mr. Lockard's prostate “was tender consistent with clinical prostatis.” That said, it is worth noting that Dr. Michael Koch, a physician hired by defense counsel, has reviewed the relevant evidence and opined that the catheterization at issue was “atraumatic and no urologic injury occurred to [Mr. Lockard].”


On April 3, 2009, the Indiana State Department of Toxicology received Mr. Lockard's blood and urine specimens for testing purposes. Weeks later, on April 20, 2009, Mr. Lockard entered into a plea agreement, in which he pleaded guilty to reckless driving and received a 180 day suspended sentence, 180 days of probation, a $100 .00 fine, and was assessed $165.00 in court costs. On June 23, 2009, the Department of Toxicology reported that Mr. Lockard's blood ethanol level was 54 mg/dl (or 0.05%) and his urine ethanol level was 85 mg/dl (or 0.08%). On July 6, 2009, the Department of Toxicology reported that Mr. Lockard's blood tested positive for benzodiazepines, opiates, marijuana, oxycodone, opiods, and MDMA (i.e.ecstacy). Mr. Lockard's urine tested positive for benzodiazepines, opiates, marijuana, oxycodone, and hydromorphine/hydrocodone. At his deposition, Mr. Lockard described these results as “bogus,” “trumped up,” and “fantasy land.”

Importantly, the warrant provides: “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” (emphasis added). The warrant goes on to say that Officer Miller was “ordered to seize such sample, obtained on such search, and forward such samples for immediate analysis.” Officer Miller requested both blood and urine samples in the warrant application, in part, because he had been trained that both should be obtained.

Specifically, in November 2008, Officer Miller attended a recertification continuing education course at which Dr. Wagner, the head of the Department of Toxicology at Indiana University, told the officer that Indiana University Department of Toxicology needed samples of both urine and blood specimens when completing toxicology kits. On this point, Officer Miller testified that the Department of Toxicology does “preliminary testing on the urine to have an idea what to test for in the blood ... [t]hat way they don't use the blood sample just running queries to see what may test positive in it.” FN1 Moreover, the state kit from the Department of Toxicology contained vials for both blood and urine. Finally, Officer Miller testified that because the warrant required both blood and urine samples, he felt obligated to obtain both, stating that “[i]t's an order from the judge ... I'm complying with the judge's order.”



The District Court in considering the defendant's Motions to Dismiss discussed the law applicable:

"There are two leading Supreme Court cases addressing whether the state's intrusion into a criminal suspect's body constituted a Fourth Amendment violation. First, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the police did not violate the Fourth/Fourteenth Amendments when, with probable cause but without a warrant, they had a physician extract blood from a person suspected of drunk driving who had declined a breathalyzer test and objected to a blood test. Id. at 772.

"Of course, not all intrusions into a suspect's body are permissible under the Fourth Amendment. This point was driven home in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), where the Supreme Court ruled that the State of Virginia could not compel a criminal suspect to undergo a surgical procedure to remove a bullet lodged in his chest, even though the bullet would have been helpful to the state in prosecuting the suspect for attempted robbery. Id. at 767. To that end, Winston emphasized that “a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.” Id. at 761. Moreover, Winston applied the Schmerber balancing test, which weighs the following factors: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity; and (3) the community's interest in fairly and accurately determining guilt or innocence. Id. at 761–63.FN8 One upshot of Winston is that the “reasonableness of surgical intrusions beneath the skin depends on a case-bycase approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure.” Id. at 760.

"Clearly, in terms of intrusiveness, a case like Mr. Lockard's—involving forced catheterization—falls in between Schmerber and Winston. In fact, the Seventh Circuit has expressly recognized that removing urine through the placement of a catheter is not as intrusive as the removal of a bullet, but that it is worse than a blood draw. See Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir.1995) (“A catheter is more intrusive than a needle but less intrusive than a scalpel, making it hard to classify the procedure under an objective reasonableness inquiry.”). Further, at the time of the incident—March 13 and14, 2009—the Seventh Circuit had addressed forced catheterizations in the context of § 1983 on two occasions."

In granting the defendant's Motions to Dismiss, the District Court found several cases holding that forced catheterizations are not an unreasonable procedure for gathering evidence (see opinion below). As such, the court found that the defendants were entitled to qualified immunity and dismissed the case:

"Beginning with the first method of showing the existence of a “clearly established” right, the Court simply cannot find that, at the time of Mr. Lockard's catheterization, a closely analogous case established that any of the individual Defendants' conduct was unconstitutional. To the contrary, Seventh Circuit precedent is clear that an involuntary catheterization does not automatically violate the Fourth Amendment as a matter of law, even in the absence of a warrant. See Sparks, 71 F.3d 648. Significantly, here, the warrant required the removal of both blood and urine samples."

Looking for a Top Indiana DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DuPage County no-refusal weekend nabs repeat offenders - Beacon News

DuPage County no-refusal weekend nabs repeat offenders - Beacon News Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DuPage County no-refusal weekend nabs repeat offenders - Beacon News

DuPage County no-refusal weekend nabs repeat offenders - Beacon News Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DuPage County no-refusal weekend nabs repeat offenders - Beacon News

DuPage County no-refusal weekend nabs repeat offenders - Beacon News Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Florida Rules Prosecutor Improperly Introduced Felony Conviction

"Have you ever been convicted of a Felony?" said the prosecutor, possessing a NCIC record (but no certified copy of a conviction). "I am not  sure" replied the defendant. In Barcomb v. State of Florida, the trial court held that since the prosecutor had a good faith basis to believe that the defendant had received 5 year's probation based on the NCIC report, there was no error in asking. Further, once the defendant indicated that he was unsure, the topic was dropped completely. Defendant was eventually convicted by the jury of driving while suspended from DUI.

On appeal, the Florida court reversed. It stated that "an attorney may ask a witness, “Have you ever been convicted of a felony?” If the witness answers affirmatively, he may then be asked “How many times?” He may also be asked if he has been convicted of a misdemeanor involving dishonesty, and if he answers “yes”, how many times. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), limited by Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994)."

The court continued:

“Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes.” Cummings, 412 So.2d at 439 (emphasis supplied). Accord, Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991), decision approved on other grounds, 612 So.2d 555 (Fla.1992). “The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true.” Alvarez v. State, 467 So.2d 455, 456 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985), disapproved of on other grounds, Riechmann v. State, 581 So.2d 133 (Fla.1991). Similarly, Charles Ehrhardt, Florida Evidence, section 610.6 (2007 Ed.), supports the need to have both the knowledge and a certified copy of a conviction before the questions may be asked:

Although section 90.610 speaks only to which convictions are admissible to impeach and not to the procedure that should be followed during the trial in examining a witness about prior convictions, Florida appellate decisions have established the method of using the convictions. Questions regarding past convictions should not be asked unless counsel has knowledge of a conviction and possesses a certified copy of the judgment of conviction.

The federal courts are in accord, explaining that “to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error....” See Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir.1967); cited with approval in U.S. v. Constant, 501 F.2d 1284, 1288 (5th Cir.1974). (bold in original)

Editors Note: The rule requiring a litigant to prove up any fact asserted in a question, in the face of a denial by the witness, is not new. There are many other instances where such a rule can be employed in a DUI case, and defense counel should immediately object and move for a mistrial whenever a pejorative fact is asserted in a question and is thereafter unproven.

Looking for a Top Florida DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Kansas Jury Improperly Instructed on DUI

In State of Kansas v. Stieben, --- P.3d ----, 2011 WL 3209875 (Kan.) the defendant went to jury trial for DUI. 28 minutes into deliberations, the jury sent a note to the judge:

‘Did Defendant cross the fog line before the officer turned around?’  

Contrary to the defendant's recollection and objection, the judge answered the question:

“THE COURT: That's my recollection. I have it written down. I'm going to write yes. And, with no more explanation than that." 

Trooper Hemel's actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her. 

The Supreme Court of Kansas found that the response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22–3420(3). K.S.A. 22–3420(3) explicitly allows the court to have the testimony read or exhibited to the jury, and where the parties were in disagreement about the testimony, such a direct showing to the jury would have excused the court from relying on its notes and memory. 

Second, it was held that the trial court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The Supreme Court distinguished the different functions a trial court must perform when there is a question of law and when there is a question of fact:

Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the jury additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22–3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion. 

"The second point of error relates to the respective functions of the trial court and the jury. The jury asked the trial court to resolve a question of fact, and the court complied with the jury's request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her. 

"The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] ). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). 

"An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772, 80 P.3d 1113. 

"It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government's proof possessed, the jury had the power to accept or reject it—or to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770–71, 80 P.3d 1113 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir.1988] ). 

"It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.

Concluding that the error was significant, the Supreme Court stated": "This usurpation of the jury's role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented."

A new trial was thereafter granted.

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Porn actor tests negative for HIV; filming can resume, group says

Porn actor tests negative for HIV; filming can resume, group says This is just another example of how a scientific test can be wrong - quite often due to imperceptible human error. How does this translate to DUI/DWI? Quite simply courts should reject out of hand any single breath test, reject out of hand any test not performed in compliance with Inernational Standards, and reject any test that is not reported with an accompanying uncertainty value, as recommended by the National Academy of Sciences. Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Florida Requires Mental State for Felony Drunk Driving

In Shelton v. Secretary, Dep't of Corrections, Slip Copy, 2011 WL 3236040 (M.D.Fla.) the United States District Court held that a Florida drug statute which expressly eliminated mens rea was unconstitutional. As noted by the court, Florida exempted itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.” DAD recommends that the entire opinion be reviewed by the reader with the question in mind being:

Is a Felony DUI based upon "any amount of drug" in the system also unconstitutional? Are other DUI statutes that carry severe penalties without mens rea also unconstitutional?

A recent DUI drugs case in Illinois, People v. Martin, is illustrative of this issue. There, a person who had mere nanograms of methamphetamine in his system (so small that it was missed during both hospital and police lab tests) was held criminally responsible for an accident involving the death of another individual, simply because these nanograms from illegal drug use days or weeks earlier still remained in his system. the Illinois Supreme Court held that there was nop need to prove impairment, or proximate cause between the drug use and the injury/accident, in order to impose a jail sentence of 3-14 years.

Here are some of the good quotes from the below opinion of the U.S. District Court:

"The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory ‘But I didn't mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.... [T]o constitute any crime there must first be a ‘vicious will.’"

* * *

"To be sure, the law recognizes the authority of government to fashion laws that punish without proof of intent, but not without severe constraints and constitutional safeguards. As the Supreme Court explained:

"[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard."

* * * *

"It cannot reasonably be asserted that the penalty for violating Florida's drug statute is “relatively small.” A violation of § 893.13(1)(a)(1), for delivery of a controlled substance as defined in Schedule I, Fla. Stat. 893.03(1), is a second degree felony, ordinarily punishable by imprisonment for up to fifteen years. Fla. Stat. § 775.082(3)(c). For habitual violent felony offenders, such as Petitioner, a violation of § 893.13(1)(a)(1) is punishable by imprisonment for up to thirty years and includes a ten-year mandatory minimum sentence. See Fla. Stat. § 775.084(1)(b). Other provisions of Florida's drug statute subject offenders to even harsher penalties, including ordinary imprisonment for thirty years for first time offenders and life imprisonment for recidivists. See, e.g., Fla. Stat. §§ 893.13(1)(b)

(delivery of more than 10 grams of a schedule I substance); § 893.13(1)(c) (delivery of cocaine within 1,000 feet of a child care facility, school, park, community center, or public recreational facility).

                                                   

"No strict liability statute carrying penalties of the magnitude of Fla. Stat. § 893.13 has ever been upheld under federal law. In fact, the Supreme Court has considered a penalty of up to three years' imprisonment or a fine not exceeding $100,000.00 too harsh to impose on a strict liability offense. See Gypsum, 438 U.S. at 442. In Gypsum, the Supreme Court considered the penalties for an individual violation of the Sherman Antitrust Act and opined, “[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes.” Id. Similarly, in Staples, the Supreme Court declined to construe the National Firearms Act as a strict liability statute given its “harsh” penalty of up to ten years' imprisonment. Staples, 511 U.S. at 616. As the Supreme Court explained:

" The potentially harsh penalty attached to violation of § 5861(d)-up to 10 years' imprisonment-confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary."

* * * *

" [W]hile the Third and Sixth Circuits disagree over whether the outer bounds of due process lie at a one or two-year strict liability sentence, the State does not cite, and the Court has not located, any precedent applying federal law to sustain a penalty of fifteen years, thirty years, and/or life imprisonment for a strict liability offense. In fact, at least one Circuit Court of Appeals has expressly stated that a twenty-year strict liability provision would be unconstitutional. See United States v. Heller, 579 F.2d 990 (6th Cir.1978). In Heller, the Sixth Circuit considered an interstate extortion/kidnapping statute that was silent regarding mens rea and carried a maximum penalty of twenty years' imprisonment. Id. at 993. The Sixth Circuit held that a mens rea element must be inferred by judicial construction because the statute would otherwise violate due process. Id. at 994 (elucidating, “if Congress attempted to define a Malum prohibitum offense that placed an onerous stigma on an offender's reputation and that carried a severe penalty, the Constitution would be offended[.]”).

* * * 

“Tough Luck!” is no Answer to the Constitutional Infirmity of Fla. Stat. § 893.13

"The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence—that no individual should be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent—and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. See Staples, 511 U.S. at 619–20. Because Fla. Stat. § 893.13 imposes harsh penalties, gravely besmirches an individual's reputation, and regulates and punishes otherwise innocuous conduct without proof of knowledge or other criminal intent, the Court finds it violates the due process clause and that the statute is unconstitutional on its face. Accordingly, Petitioner's request for habeas relief on claim one is GRANTED.

Looking for a Top Florida DUI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Law - Texas Safe and Sober Program Nets Driver

I like reading Texas DWI appeals. When I see how badly the defendants in Texas and their Texas defense attorneys get screwed both on trial and on appeal, I somehow cannot help but feel that I have been housed in the nicest building in the concentration camp. The below case is an example of one of those cases that gives me that 'cold, nonfuzzy feeling' described above.

In Alcorta v. Not Reported in S.W.3d, 2011 WL 3672091 (Tex.App.-Hous. (14 Dist.)), the prosecutor failed to tell the defense attorney that the cop was working under a "DWI Safe and Sober" grant. Defense counsel did not learn of the same until the cop testified on direct during the trial. Rather than cross-examining the cop, the defense counsel upon learning that such was the case, immediately issued a subpoena for the records keeper (Mitchell) to appear the next day with the grant documents. It was counsel's intention to re-call the arresting officer once the documents were produced, but the prosecutor released the cop from trial.

The records keeper failed to appear under subpoena the next day. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, according to the appellate court the record did not reflect that appellant ever moved for a continuance. (The appeals court was apparently unwilling to accept the word of defense counsel absent extrinsic proof of the truth of his assertion). The defendant was found guilty thereafter.

Defense Counsel filed a motion for new trial. The trial court admitted into evidence the subpoena directing Mitchell to appear at trial. The subpoena does not reflect what time it was served on July 13, 2010. The trial judge also admitted into evidence documentation relating to the grant program. Trial counsel testified that had he received the documents, he would have laid the predicate for admissibility, recalled Officer Murray and questioned him about the grant program, and questioned Mitchell about how the police department benefits from the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

 The evidentiary hearing on appellant's motion for new trial centered primarily on documentary evidence of the grant program and the subpoena and service thereon in procuring those documents. Appellant's trial counsel testified that although a subpoena was served on Mitchell on the day of trial, the grant program documents were not received until a couple of days following the jury's verdict. According to trial counsel, had he received the documents in time, he would have recalled Officer Murray to question him about the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

*6 The prosecutor testified that Officer Murray had been excused at the end of his trial testimony. The prosecutor stated that Officer Murray would not have been subject to cross-examination of the grant program documents because he had been excused by the trial court with the agreement of both parties. The trial judge clarified that had the officer been subject to recall, she would have considered that as a “heads up” and that she may have allowed the officer to testify again. Neither trial counsel nor the trial judge could remember whether the officer was subject to recall, but they agreed that the record will speak for itself. The trial record reflects that, contrary to the prosecutor's testimony, at the conclusion of his testimony, Officer Murray was excused subject to recall and that the trial court ensured the State had a contact number by which to reach the officer at a later time.

In denying the motion for new trial, the trial judge noted that because appellant's trial counsel did not cross-examine Officer Murray about the grant program, she could not rule on whether the grant documents would have been relevant or admissible without knowing what arguments trial counsel would have made at that time. The trial judge could not remember the off-record discussions at trial relating to the grant program documents. The trial court denied the motion based on the testimony at the evidentiary hearing.

On appeal, the court wrote as follows:

"According to appellant, as raised in both his second and third issues on appeal, the State failed to disclose evidence that Officer Murray was working pursuant to the state-funded DWI grant program at the time of appellant's arrest. Appellant points to the grant program documents, as produced at the hearing on his motion for new trial, as being material and favorable evidence to his defense that was withheld in violation of his due process rights under Brady v. Maryland. See 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). We presume for the sake of argument that the grant program documents in question constitute Brady material. The opportunity to request a continuance once Brady material is disclosed at trial adequately protects due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex.Crim.App.1974). When, as in this case, the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pre-trial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App.1994). When an accused fails to request a continuance, he waives any error resulting from the State's failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 (Tex.Crim.App.1982). The record does not reflect that appellant sought a postponement or moved for continuance upon learning of the grant program,^FN1 which would have allowed him time to address the impact of the evidence and develop any necessary response to it. Appellant did not seek this relief and consequently waived any error. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd)."

FN1. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, the record does not reflect that appellant ever moved for a continuance. Appellant did not address this assertion at the hearing on his motion for new trial.

After the appeals court refused to believe defense counsel's assertion that he requested a continuance (and that it was denied), the court found waiver of the issue on appeal. What is distressing about this part of the appeal is that apparently the neither the prosecutor nor the trial court disagreed with the defense counsel's assertion that he sought a continuance. In fact, there were several off-the-record discussions, as noted by the appellate court. So why was defense counsel's statement that he asked for a continuance completely ignored by the appellate court?

A second ground raised involved playing the video portion of the HGN test.  During the trial the court privately viewed the video and suppressed the results of the HGN, as having been improperly administered. Nevertheless it still allowed the video portion of the tape showing the HGN test to be played in front of the jury to show the defendant was swaying. On this issue the appeals court wrote:

"The trial court excluded the audio portion of the HGN test from evidence because Officer Murray failed to follow proper procedures in administering the test; that ruling is not contested on appeal. See Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). But, appellant's physical behavior during the test is relevant for the purpose of evaluating his physical faculties, and the portion of the video shown during trial without audio was admissible for that purpose. See Miffleton, 777 S.W.2d at 80. Therefore, the trial court did not err in admitting the video-only portion of the HGN test in which appellant allegedly swayed. See id. We overrule appellant's fourth issue."

Concluding, the appellate court affirmed the conviction in this matter.

Editor's note: It is dismaying that an appellate court would not accept as fact that a continuance was requested and denied, when an officer of the court swore as such in his post-trial motions filed with the trial court and in his appellate brief, when such an averrance was not contested by the trial court nor the prosecutor.

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DWI Law - Texas Stop For Improper License Plate OK

In Dudley v. State of Texas, --- S.W.3d ----, 2011 WL 3720899 (Tex.App.-Dallas) the defendant was stopped because he did not have his fron license plate affixed to the front bumper. Rather, it was sitting on the dashboard behind the windshield. He was stopped and arrested for DWI. In Texas, it is illegal to fail to display a license plate on the front and rear of a motor vehicle. On appeal, the defendant cited to a previous case holding that the statute requiring the plate to be affixed to the 'front' of the vehicle was ambiguous as to the specific location. State v. Losoya, 128 S.W.3d 413 (Tex.App.—Austin 2004, pet. ref'd) Here, the appeals court cited to a different case, which had held that the plain language of the statute requires that a license plate be displayed at the foremost part or front of a vehicle, most commonly the front bumper. Spence, 325 S.W.3d at 651. The court of criminal appeals disavowed the reasoning of the Austin court in Losoya, and found that such an interpretation conflicted with the plain meaning of the statute. The court of criminal appeals opined that allowing a license plate to be located in a number of different places would make it difficult to quickly determine whether a given [vehicle] has a license plate or what its numbers are. Choosing to accept the latter appellate decision as the most persuasive, this appeal was ultimately denied.



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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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DUI cases could be in jeopardy after claims of security breach - St. Petersburg Times

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DWI Law - New Jersey Booking Video Loss Creates Negative Inference

What happens if the police department has a booking room video of a defendant, and prior to retrieval the system (allegedly) corrupts, rendering the video irretrievable? In New Jersey v. Ayala, Not Reported in A.3d, 2011 WL 3476806 (N.J.Super.A.D.), the defendant sought suppression, arguing that the failure to have a system in place to download the video before it is subject to loss, was a suppressible scenario. Additionally, the defendant sought to have the jury instructed that they should draw a negative inference against the government for the incident.

On appeal, the court reviewed the constitutional law on the subject of destruction of evidence. Reviewing Trombetta and Youngblood, the court held that in the absence a showing of bad faith (which wasn't proven according to the trial judge) there was no basis for suppression.

Nevertheless, the court did authorize the use of a jury instruction, as well as introduction of the circumstances of how the tape was (neglectfully) not preserved, as an appropriate tactic to be employed by the defense:

"In its brief on this appeal, the State acknowledges that evidence relevant to the production and loss of the recording would be admissible. We agree.

"In addressing whether a state's loss of evidence that did not meet the Trombetta standard amounted to a denial of due process, the Supreme Court relied, in part, on the fact that the jury was instructed that it could draw an adverse inference if it determined that the state acted in bad faith. See Youngblood, supra, 488 U.S. at 54, 109 S.Ct. at 335, 102 L. Ed.2d at 287; cf. Marshall, 123 N.J. at 109 (quoting Youngblood on this point and finding no due process violation where the State diminished the prejudice by opting not to introduce the test results it obtained through testing of a tire that limited defendant's ability to conduct tests that may have produced exculpatory evidence). If the evidence presented at trial permits an inference of bad faith such an instruction should be given.

"We stress that this court's acceptance of the judge's finding that the officers' loss of the recording was not intentional or the result of bad faith is a product of our standard of review. On the evidence presented at the suppression hearing, a reasonable person crediting defendant's testimony and discrediting the officers' testimony could come to a different conclusion. We refer to the inconsistencies in the officers' testimony about activation of the recording device; the fact that Purcell claims he was unable to retrieve the recording in June but Butler testified that the power surge that affected the computer occurred in August; defendant's testimony that a tape recorder was used; and the fact that the State had no information as to recordings that were stored on the computer's server or hard drive.

"For all of the foregoing reasons, we conclude that the judge did not err in denying defendant's motion to suppress for failure to preserve the recording. Our holding assumes that the trial judge will admit the State's evidence subject to conditions that give defendant a reasonable means of presenting the exculpatory evidence through his own testimony and the inference available therefrom, including an instruction on any negative inference based on bad faith that is available from the evidence adduced at trial."

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DWI Law - South Carolina Throws Out Arrest Based on Lack of Video Camera

The late Reese Joye, beloved member and Fellow of NCDD, was instrumental in passing a law in South Carolina mandating in-squad videotaping in DWI cases. His spirit still lives on as exemplified in Town of Mt. Pleasant v. Roberts, --- S.E.2d ----, 2011 WL 2682407 (S.C.). There, Officer Bruce Burbage of the Town of Mount Pleasant's Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts “performed pretty poorly.”

Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage's vehicle nor the backup officer's was equipped with a video camera.

In response to Roberts's discovery motions, which included a request for production of the incident site videotape, the Town's prosecutor forwarded an “Affidavit for Failure to Produce Videotape” executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a “checked” box that stated:

At the time of the Defendant's arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998, the videotaping requirement regarding vehicles is not applicable.

On October 30, 2009, a municipal court judge conducted a jury trial on Roberts's DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage's failure to videotape the entire arrest pursuant to section 56–5–2953. Roberts asserted that section 56–5–2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.

The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only “once the law enforcement vehicle is equipped with a videotaping device.” FN6 Because Officer Burbage's vehicle was not equipped with a video camera, the Town argued that the videotaping provisions of section 56–5–2953 were inapplicable and, thus, the failure to videotape Roberts's arrest did not warrant the dismissal of the DUI charge.

In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town's significantly higher number of DUI arrests. Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.

The Town countered Roberts's arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or purchase additional cameras in order to comply with the statute.

Discussing the issues on appeal, the appellate court wrote:

"Taking into consideration the purpose of section 56–5–2953, which is to create direct evidence of a DUI arrest, we find the Town's protracted failure to equip its patrol vehicles with video cameras, despite its “priority” ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56–5–2953. Thus, we hold that the Town's failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).

"Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts's DUI arrest.

"Thus, the only feasible exception is that there was a “valid reason” for the Town's failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage's patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.

"As we interpret the circuit court judge's order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town's “high ranking” for DUI arrests as compared to other municipalities.

"Consequently, the question becomes whether the Town's failure to request additional video cameras constituted a “valid reason for the failure to produce the videotape based upon the totality of the circumstances.” Id. § 56–5–2953(B). We find the Town's explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities. Moreover, the Town's interpretation of subsection (G) is nonsensical as the requirements of section 56–5–2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.

"Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town's interpretation would defeat the legislative intent of section 56–5–2953 and the overall DUI reform enacted in 1998.

"Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town's noncompliance with section 56–5–2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.

"As evidenced by this Court's decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56–5–2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56–5–2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56–5–2930 ... if [certain exceptions are met].”). The term “dismissal” is significant as it explicitly designates a sanction for an agency's failure to adhere to the requirements of section 56–5–2953.

"Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56–5–2953 and, in turn, promulgated a severe sanction for noncompliance.

"Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski."

Editor's Note: No other State yet has a law mandating videotaping in DUI cases such as South Carolina. However, many states (including Illinois) impose technology surcharges against defendants convicted in DUI/DWI cases, where funds are given to municipalities specifically for the purchase of such equipment. Can this case be used in those instances?


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