DC Prosecutors Used Questionable Breath Test Scores To Secure Guilty Pleas in DWI Cases

DC Prosecutors Used Questionable Breath Test Scores To Secure Guilty Pleas in DWI Cases 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!

Out of Breath: Local attorney encourages students to be weary of breath tests for alcohol, suggests machine inaccuracy

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DWI Appeal - Objecting to Records using HIPPA and Preserving Error

In Maldonado v. State of Texas, --- S.W.3d ----, 2011 WL 924352 (Tex.App.-Dallas), the defendant filed a pretrial motion to suppress the dental records subpoenaed by the State, arguing the State failed to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) On the day he was arrested, according to his dentist Garay who testified at trial, Maldonado had three wisdom teeth extracted and had received twenty milligrams of diazepam and one half milligram of Halcion. He was charged with DWI drugs, involving the diazepam and Halcion. Garay then testified that diazepam is a muscle relaxant and can cause drowsiness and dizziness. Halcion can also cause drowsiness and dizziness. Garay stated the dangers of driving under the influence of diazepam and Halcyon included the driver having vertigo, disoriented vision, and “just not [being] sure what [he is] doing.” According to Garay, both Maldonado and his wife were instructed that Maldonado could not drive a car after taking the medications and was required to have someone available to drive him home. Garay testified Maldonado signed an informed consent indicating he understood these instructions. The informed consent was contained in Maldonado's dental records.

First, the court held that the defendant had waived his challenge on appeal:
When the State offered the dental records into evidence at trial, Maldonado affirmatively stated that he had no objection. When a motion to suppress evidence is denied, the defendant does not need to object at trial to the same evidence in order to preserve error on appeal. Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App.2004); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). However, when a defendant affirmatively states during trial that he has “no objection” to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App.2010), cert. denied, 131 S.Ct. 905 (2011); Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.2005); Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992); Moraguez, 701 S.W.2d at 904.
Second, the court found that even if the challenge was ripe for review, they held that even assuming the records were improperly subpoenaed, Maldonado was not harmed by the admission of the dental records:

"It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App.2004) (“An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003)). Garay testified, without objection, about the drugs Maldonado received at the dental office, the potential effects of those drugs on Maldonado, and that both Maldonado and his wife were instructed that Maldonado should not drive a motor vehicle. Because the dental records were cumulative of Garay's testimony, Maldonado was not harmed by the admission of the records. We overrule Maldonado's two points of error and affirm the trial court's judgment."

NOTE: Apparently, the defense did not seek to exclude the dentist's testimony as 'the fruit of the poisonous tree' involving the unlawful subpoena (but perhaps should have). Thus, the issue involving HIPPA was left to die on the vine. Texas courts seem to have a way of finding waiver, forfeiture, and harmless error in every case where a defendant has possibly been wronged.


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The value of hiring the Most Skilled Lawyer:

The value of hiring the Most Skilled Lawyer:

It is unwise to pay a lawyer too much, but it’s even more unwise to pay him too little.

When you pay a lawyer too much, at worst you lose a little money. That’s all.

When you pay a lawyer too little, you sometimes lose everything.

Because the services that you paid him for could not be competently performed for what little he charged and for what little you paid.

Your common sense tells you that paying a little and getting a lot can’t be done. This is especially true with lawyers.

Cheap lawyers aren’t good and good lawyers aren’t cheap.

If you choose to hire the lowest price lawyer, and ignore the most skilled lawyer, it is well to save some money on the side, for the risk you run and the consequences that will befall you.

And if you do that, you will have enough to pay for something better, for the most skilled lawyer…the lawyer you really need.


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DUI Appeal - Alaska DUI Hearing Officer Bars Evidence Attacking Illegal Stop

In Alvarez v. State of Alaska, --- P.3d ----, 2011 WL 923224 (Alaska) the Supreme Court was asked to decide a number of issues, including whether the exclusionary rule applied to suspension hearings, whether the hearing officer abused the process by refusing to authorize subpoenas, and whether a 2 1/2 year delay before a suspension hearing denied the defendant due process of law.

In answering the issue of the delay, the facts indicated that on September 28, 2003, Alvarez agreed to take a breath test after a DUI arrest, but did not produce a readout until the fifth try. Alvarez recorded a breath alcohol concentration of .091 percent. It appears that at least one other officer was in the room with Perez to help him use the breathalyzer. Officer Perez issued an order revoking her license and giving her notice that the revocation would be effective in seven days in the absence of a request for an administrative hearing. Alvarez was subsequently charged with driving under the influence. She timely requested a hearing, and as a result was issued a temporary license. The hearing was scheduled for six months later. Sometime after the cop arrested the defendant, he was deployed to Iraq. On February 26, 2004, Alvarez wrote to the hearing officer requesting subpoenas for the Ketchikan Public Safety Director and the Records Custodian at the Alaska State Highway Department in Ketchikan. In the same letter, Alvarez also asked her if Perez would be subpoenaed. The hearing officer denied Alvarez's requests for subpoenas, and informed her that she did not intend to subpoena Perez.

The first hearing took place on March 22, 2004. Alvarez was present, and she called a witness to testify that she was sober the night she was arrested. She also testified on her own behalf. The hearing officer decided to continue the hearing until Perez's return from Iraq. The hearing was ultimately rescheduled for March 10, 2006, almost two years later, once Perez had returned. On March 1, 2006, just nine days before the hearing, an attorney entered an appearance on behalf of Alvarez. He immediately requested a continuance to review the evidence. The next day the hearing officer denied the request. On March 9, one day before the hearing, counsel for Alvarez requested the hearing officer to subpoena the evidence custodian for the Ketchikan Police Department, and the hearing officer denied his request. The hearing went ahead telephonically on March 10, but Perez, who was supposed to call in, did not. The hearing officer rescheduled the hearing for April 27.

Perez appeared telephonically at the April 27 hearing. The hearing officer had only two questions for Perez. Alvarez then thoroughly cross-examined Perez, whose memory of events varied. During the hearing, the hearing officer prevented Alvarez from asking Perez questions concerning whether Perez had reasonable suspicion to stop Alvarez. The hearing officer reasoned that the exclusionary rule does not apply to license suspension proceedings, and therefore it was irrelevant whether or not Perez had reasonable suspicion to stop Alvarez. The hearing officer suspended Alvarez's license for 90 days.

On appeal, the defense raised the issue of whether the delay violated the defendant's due process rights. The due process clause entitles an individual to "a meaningful hearing at a meaningful time". Factors to consider in determining whether due process has been violated fall under the Mathews v. Eldridge framework for evaluating whether administrative proceedings satisfy due process. These include (1) the private interest that the official action affects, (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens, in implementing additional safeguards.
The appeals court found that the due process rights of the defendant were not violated, relying heavily on the fact that the defendant was granted a temporary license during the delay. Additionally, the fact that much of the evidence was audio and video recorded also militated against the prejudice of 'faded memories'.
Insofar as the exclusionary rule was concerned, the court found without any logical explanation, that a driver could not challenge the lawfulness of the initial stop (which they suggest involves the exclusionary rule) in a suspension hearing, except where police action “shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom.” In a footnote, the opinion also stated that there may also be an application of the exclusionary rule "where a Fourth Amendment violation stems from a lack of probable cause for a DWI arrest, exclusion may well be mandated because probable cause is an affirmative statutory element of the offense of refusal and is an affirmative element for proof in the license revocation proceeding. Second, ... a search for blood evidence in direct violation of ... statutory prohibitions would probably require exclusion of the test results in a subsequent administrative license revocation proceeding..."

Another interesting argument by the defense that also was rejected, was that the court should have considered the rehabilitation of the driver over the 2 1/2 year delay by the time the suspension was issued. She based the argument on an Alaska case that a driver's license suspension for drunk driving is “remedial” rather than “punitive” because of the direct relationship between the suspension and the State's goal of removing unsafe drivers from the road. The court stated:

"Suspending the driver's license, even after a long delay in which the driver drove unexceptionably, still furthers the administrative goal of protecting the public and removing unfit drivers from the road. The suspension serves to deter future unfit driving, and creates a record for the DMV of a driver's overall fitness. The DMV has wide latitude to carry out its mandate to protect the public from unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's goals that it is “remedial” rather than “punitive,” despite the delay."


NOTE: Overall, there was nothing more that the hearing officer could have done to thwart the defendant's attempt at a fair hearing - from denying subpoenas, to delaying the hearing, and then refusing to sanction the noncompliance of the State. This case is an example of jurisprudence run amok for the purpose of achieving one goal - the removal of accused (but not necessarily guilty) drunk drivers from the road.


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Suspended NM Appellate Judge Accused of Blowing Over Twice Legal Limit Takes Plea in DWI Case - News - ABA Journal

Suspended NM Appellate Judge Accused of Blowing Over Twice Legal Limit Takes Plea in DWI Case - 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!

Police in Fla. Town Use Email and Skype to Obtain Warrants While Still on the Scene - News - ABA Journal

Police in Fla. Town Use Email and Skype to Obtain Warrants While Still on the Scene - 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!

OWI Appeal - Wisconsin OWI Stop Based On Weaving OK

In State of Wisconsin v. Pence, No. 2010AP1944-CR.March 24, 2011, the defendant was stopped after weaving within his lane 5 times within 1 1/2 to 2 miles of driving. During the motion to suppress, Deputy Miller stated that in his experience, when he makes stops after midnight, there is a high probability that the driver is intoxicated. He also testified that it is not normal for a driver to weave within his or her lane and, based on his experience, someone weaving in his or her lane is possibly intoxicated or unable to safely operate a vehicle. After observing the vehicle weave at least five times, Deputy Miller conducted an investigative stop of the vehicle. Deputy Miller also testified that he has worked in law enforcement for five years. He is trained in OWI enforcement and field sobriety testing, and has made close to 100 stops for OWI.

On appeal, the court held that, while simple weaving within the lane (without more elaboration) would not justify a stop, Deputy Miller's explanation about the time of day, and his experience with drunk drivers, was enough to transform the facts into reasonable suspicion. Therefore, the denial of the motion by the trial court was affirmed.

AUTHORS COMMENTS: Essentially, the opinion allows the police to 'create' a basis to stop of vehicle for conduct which, if performed during daylight, would be completely legal. According to this case, Wisconsin has just created its own 'sunset' provision to the Fourth Amendment of the Constitution.


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DWI Appeal - New York DWI Defense of Justification approved

In People v. Rodriguez--- N.E.2d ----, 2011 WL 1044575 (N.Y.), 2011 N.Y. Slip Op. 02074 involved a highly unusual DWI and manslaughter case. the facts were as follows:

On August 1, 2005, one Francisco Rios double-parked his overloaded box truck, facing downhill, at 103-105 Mt. Eden Avenue in the Bronx. Rios placed the truck in reverse and turned the engine off, leaving the keys in the ignition before going into a store. Defendant, who was walking by, entered the truck. While defendant was inside, the truck descended Mt. Eden Avenue and struck several cars and three pedestrians, seriously injuring two and killing one. At trial, the People and defendant offered the jury markedly different stories as to how all of this occurred. Evidence established that defendant had a blood alcohol content of .09% nearly four hours after the incident which, according to an expert called by the People, meant that his blood alcohol content at the time of the incident was between .13% and .17%, substantially above the “legal limit” of .08%.

The State claimed that the defendant, knowing the driver from previous occasions, caused the truck to move as a joke (in order to move and hide the truck from the driver). Being drunk, they claim he lost control and had the accident. The State also claimed that the defendant exited the truck after the incident and asked, “How many people did I kill?” A witness, seeing three people laying in the road, responded, “You killed three people”, to which defendant replied, “Oh, I was joking around with the truck. I was making a joke and look what I've done.”

The defendant claimed that as he was walking past the truck, he “saw a movement of the truck.” He ran between parked cars to get to the truck which, by this time, was descending the hill and approaching an intersection. Defendant opened the passenger side door, jumped inside, slid over behind the steering wheel and pumped the brakes, to no avail. He tried steering, but the wheel was hard to move. Despite his best efforts, the truck struck several pedestrians crossing the street. He exited the truck on the passenger's side, and went to a nearby bodega. Defendant denied making any statement after the incident.

The trial court refused to give the defense a justification instruction, and the jury convicted the defendant of manslaughter. The justification defense, also known as the “choice-of-evils” defense, provides that conduct that would otherwise constitute an offense is justified when it:

“is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

The highest appellate court in New York found that the failure to give the justification defense was not error as to the manslaughter charge:

"To be entitled to such a charge there must be two “evils”. And here, even under defendant's scenario, there was no “evil” on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others. So, as to the most serious charges, a justification charge (i.e. manslaughter) was clearly unwarranted."

As to the DWI charge, the court found that the failure to give the instruction was error, but that the error was harmless:

If defendant elected to operate a motor vehicle, here the truck, while under the influence of alcohol, in an attempt to prevent injury, he faced the choice of two evils: drive while intoxicated or risk a runaway truck causing injury. Therefore, Supreme Court should have granted defendant's request for a justification charge with respect to the operating a motor vehicle while intoxicated counts. However, any error was harmless as evidenced by the jury's conviction of defendant of the second degree manslaughter and assault counts. To find defendant guilty of those charges, the jury was required to conclude, beyond a reasonable doubt, that defendant caused the truck's movement, i.e., that it was not moving before he entered it. Because the jury concluded that it was defendant who caused the truck to move, and not, as defendant contended, that the truck was already moving, the jury never would have considered his “choice of evils” defense on the charge of driving while intoxicated. As a result, the error of not giving the justification charge with respect to the vehicular manslaughter and vehicular assault counts, which include as an element the operation of a motor vehicle while intoxicated, was harmless, and defendant is not entitled to a new trial to correct the error.

NOTE: What is troublesome about the harmless error analysis, is the fact that the court agreed that the jury should have been informed of the defense, but then reasoned that the findings of guilty where not affected by this failure,. The court 'guessed' that a logical jury must have found that the defendant caused the truck to move in the first place. The first problem is that the court of appeals is only guessing as to why the defendant was convicted, and no verdict (including the high court's decision) should be upheld when to do so is based upon guess or conjecture. Second, the failure to adequately instruct a jury about a defense to a charge is a constitutional error of fundamental fairness (i.e. due process), and as such prejudice against the defendant should have been presumed.


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DWI Appeal - Texas Rules Burden on Defense to Suppress Blood

In State of Texas v. Robinson, --- S.W.3d ----, 2011 WL 891294 (Tex.Crim.App.), the appeals court was called upon to determine who had the burden in a motion to suppress a blood test. The Defendant was arrested without a warrant for DWI and transported to a hospital, where blood was drawn. He filed a motion to suppress the results, claiming that the arrest was without a warrant and without consent. The trial court found that once there was proof that the arrest was without a warrant, then the burden of proving that the blood was drawn in conformance with the statutory provisions shifted to the State.

At the hearing, the officer testified that he could not recall whether the person who drew the blood was a nurse, chemist, or otherwise qualified under law to draw the blood sample. The trial court then suppressed the blood evidence based on the fact that “the State has not met the burden to prove that it was [a qualified person] that took it.” The State appealed, arguing that the defendant should have the initial burden of proving an actual violation, before the burden shifted to them to prove full compliance.

On appeal, the court agreed with the State. It held that the defendant has the initial burden, which shifts to the State only when the defendant has produced evidence of a statutory violation. Thus, the failure to recall who drew the blood, rather than proof that the person who drew the blood was not qualified, was insufficient to grant the motion to suppress.

NOTE: Oddly, this ruling is inapposite to the proof necessary at trial. At trial the state would have to prove actual compliance, and the lack of recall would be insufficient to admit the result. It seems like this ruling in essence would discourage a defendant from filing a pre-trial motion, knowing that doing so would transpose the burdens. The Dissenting opinion also suggests that the ruling was incorrect for the same reasons.


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DUI Appeal - Minnesota DWI Evidence Insufficient - Conviction Reversed

In State of Minnesota v. Riesgraf, Not Reported in N.W.2d, 2011 WL 891118 (Minn.App.), the defendant was convicted of DWI based upon the evidence that appellant drove his vehicle to the Walmart store located in Dilworth, that appellant admitted that he drank a one-ounce bottle of rum, that appellant exhibited indicia of intoxication when he was questioned by police at his vehicle in the Walmart parking lot and subsequently failed field sobriety tests, and that approximately 1-1/2 hours post-arrest he had a blood alcohol level of .20.

The appeals court held that the evidence was insufficient as a matter of law and reversed the conviction outright:

The evidence offered by respondent did not include a temporal link between appellant's driving and his being under the influence of alcohol, and the circumstantial evidence of appellant's inebriation was not inconsistent with any rational hypothesis other than guilt. The jury heard no evidence to establish at what time appellant drove to the Walmart store, how long he was in the store, or whether he consumed alcohol after driving to Walmart. Further, the vehicle's keys were not in appellant's possession when he was approached by police. Given that each element of an offense must be proven beyond a reasonable doubt, we agree that respondent failed to meet its burden of proof in this case.

The State also tried to argue that the breath alcohol concentration created circumstantial evidence in support of the guilty finding. The court retorted: appellant was not apprehended while driving his vehicle, and the evidence of the amount of alcohol consumed by appellant bears no relation in time to his driving conduct, other than that the alcohol was consumed on the same day that appellant drove his vehicle.

As finally stated by the court: "Given that each element of an offense must be proven beyond a reasonable doubt, we agree that respondent failed to meet its burden of proof in this case."

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Defendants put the drunken driving test on trial - St. Petersburg Times

Defendants put the drunken driving test on trial - St. Petersburg Times 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 -Oregon DUII Cracked Windshield Stop Challenged

In State of Oregon v. Elmore, --- P.3d ----, 2011 WL 891677 (Or.App.) the defendant entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress challenging the stop of his car. At the motion to suppress, the following facts and testimony was adduced:

On the morning of June 4, 2007, Deputy Cochran saw defendant driving his vehicle on a highway. Cochran testified that he noticed “a large crack in the windshield, which is a violation of statute, and so I pulled him over for that.” Defendant testified that the crack “starts * * * on the driver's side four inches up from the bottom of the windshield. And then it progressively goes to the passenger side heading down towards the bottom of the windshield.” According to defendant, the crack was “18 inches to two feet” long. When Cochran was asked how “a crack like that [would] obstruct the vision either into or out of the vehicle,” he testified:

“[I]t depends. Some people drive around with big spiderwebs, that wasn't what this case was, you know, that would be more apparent. But anything as simple as one line, it may be in your direction of vision, it may be on the side of the window where you're looking through as you're turning or something like that. Another problem is because I had a cracked windshield with just one line that was cracked from a baseball game, is that cracked windshield will act like, sometimes like a prism with that crack and you get cracked glass and when the sunlight shines through it it will, you know, glint and glare off of that crack which is distracting.”

The applicable Oregon statute prohibits driving a vehicle when the windshield is obstructed by “any material that prohibits or impairs the ability to see into or out of the vehicle * * *. This subsection applies to any sign, poster, one-way glass, adhesive film, glaze application or other material if the material prohibits or impairs the ability to see into or out of the vehicle.”

At the suppression hearing, defendant's attorney argued that, under that statute, a crack is not a “material that prohibits or impairs the ability to see into or out of the vehicle.” On appeal, the court agreed:

“Material,” in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be “ upon any vehicle window.” ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute “material”- viz., “any sign, poster, one-way glass, adhesive film, glaze application”-all of which are things of physical substance. Id.

Applying that construction to this case, we readily conclude that a crack is not a “material.” As defendant posits, “a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.” Here, the deputy stopped defendant because he saw a crack in defendant's windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.

On appeal, the State also tried to argue that, even if the officer's reliance on that statute was wrong, there were alternative statutes that justified the stop. Refusing to allow the alternative bases, the appeals court said:

"[W]e decline to address the state's alternative contention. The state's argument in the trial court focused exclusively on ORS 815.220-that is, the state did not point to any of the statutes that it now raises on appeal. Had the state attempted to rely on those statutes in the trial court, defendant might well have developed the record differently. See Tiffin, 202 Or.App. at 202 (declining to address the state's alternative “argument that the stop was lawful based on the officers' reasonable suspicion that defendant was driving under the influence because the state did not make that argument to the trial court”; reasoning that, “[h]ad the state done so, defendant might have developed a different record below”).

NOTE: this appeal is good for 2 reasons - the interpretation of the statute was not bent to support the stop itself, and the State was prohibited from its last-ditch attempt to argue alternative means for the stop that were not raised at a time when the defense could have argued against them. It is nice to see a court enforcing appropriate rules of procedure even-handedly.


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DUI Appeal - Kansas DUI Arrest and Preserving Error after Denial of Motion to Suppress

The case of Kansas v. Adam, Slip Copy, 2011 WL 867608 (Table) (Kan.App.) gives DAD an opportunity to reiterate the importance of preserving errors. in several past DAD columns, appeals are brought where the defense counsel failed to object, causing the grounds for appeals to be lost, waived, forfeited, or reviewed under more onerous standards, such as 'plain error' or 'harmless error'. The below case involves a defendant who lost a motion to suppress evidence where he refused field tests, and had the pbt suppressed. However, at trial the defendant did not re-raise the denial of his motion to suppress. Under Kansas law, when the district court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. This rule is not much different than many other states in that regard. Kansas does have an exception to the above, however. The exception states:

“When the same judge who heard the testimony at a suppression hearing presides over the bench trial and is aware of the circumstances under which the State obtained the evidence and the defendant's objections to it, when the trial consists of a submission to the court of stipulated facts and a transcript of the suppression hearing, and when no witnesses are called or additional evidence presented, the contemporaneous objection rule does not apply and the issue of the admissibility of the evidence is preserved for appeal.”

The majority found that even though all of the testimony was admitted by stipulation from the motion and into the trial, and even though it was the same judge at both, since there were 5 additional Intoxilyzer exhibits introduced during the trial, then the above exception did NOT apply, and the denial of the motion to suppress was insufficiently preserved for appeal.

In a matter of apparent gratuity, the appeals court nevertheless stated that even though the matter was not preserved, it would have found sufficient probable cause anyways. Always, always raise objections contemporaneous to admission of evidence, and during motions at the close of the State's case, and in any written post-trial motion in order to ensure that it is preserved for appeal.


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DUI Appeal - Kansas DUI Jury Wrongly Instructed - Hung Jury

In State of Kansas v. Torres, Slip Copy, 2011 WL 867602 (Table) (Kan.App.) the defendant proceeded to jury trial on his DUI and related charges. The challenged instruction to the jury was made after voir dire and before opening statements, where the judge gave the following Allen-type charge:

“Because this is an important case, if you should fail to reach a decision, the case is left open and undecided. Like ail cases, it must be decided. Another trial would be a heavy burden on both sides.

“There's no reason to believe that this case could be tried any better or more exhaustingly than it can at this time. There's no reason to believe any more evidence would be produced by either side, or also no reason to believe that, if the case were retried, it would be submitted to twelve people who are more intelligent, reasonable, or capable than you twelve, because any future jury is going to be selected in the same manner.”

Torres did not object to this statement. He was then convicted. On appeal, Torres contended that that it was improper and prejudicial to tell the jury: “Like all cases, it must be decided. Another trial would be a heavy burden on both sides.” The appeals court agreed that such a statement was improper:

Our courts have held that the statement “[l]ike all cases, it must be decided” is inaccurate because the case might not be retried and could be dismissed without prejudice and never decided. State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007); State v. Turner, 34 Kan.App.2d 131, 134-35, 115 P.3d 776 (2005). Further, our Supreme Court has found the statement “ ‘[a]nother trial would be a burden on both sides' “ to be both misleading and inaccurate. State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).

However, since Torres failed to timely object, the court then had to determine whether the instruction was clearly erroneous, i.e., "whether we are firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred." the court found against the defendant, holding that "there is no real possibility that the jury would have returned a different verdict had the court's post-voir dire statement not been made to the jury."


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DUI Appeal - Texas DWI Law Bars Refusal Instruction

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

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

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

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

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

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


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


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DUI Appeal - Texas DWI Failure to Signal Lane Change

In Brown v. State of Texas, Not Reported in S.W.3d, 2011 WL 915087 (Tex.App.-Beaumont) the defendant was stopped after entering a right-hand turn only lane, and then changing his mind and re-entering a through lane without signaling. On appeal, the issue was whether the failure to signal the movement was illegal. The Texas vehicle code states that “[a]n operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.” Brown argued that no signal was required when he moved from the right-turn-only lane back to the left lane on his side of the road. Brown relied on Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010) and Trahan v. State, 16 S.W.3d 146 (Tex. App .-Beaumont 2000, no pet.). In Trahan, the driver failed to signal his exit from the freeway. The Court concluded there was no evidence that Trahan ‘ “turned” ‘ or changed lanes in order to exit the freeway, and there was no basis for the traffic stop. In Mahaffey, two lanes on Mahaffey's side of the road merged into a single lane. A sign on the road said ‘ “Lane Ends-Merge Left[.]” ‘The officer stopped Mahaffey for failing to signal when he merged into the single lane. Id. The Court found there was no “turn” and Mahaffey was “simply following the ‘direct course’ of the road and of the traffic on that winding road.”

The appeals court herein found that the stop was proper, and the failure to use a signal was illegal. "Without a signal, Brown then crossed the solid white line between the two lanes and made a lane change from the right-turn-only lane back into the left lane." Hence, the movement constituted a 'change of lanes' that in the court's opinion required use of a turn signal.

Although this defendant lost, the case itself contained helpful precedent for defense counsel.


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DUI Appeal - Massachusetts Drunk Driving, Refusing Field Tests, Admissibility

This case comes to DAD courtesy of Mass attorney and expert Tom Workman. In Commonwealth of Massachusetts v. Beaulieu, 09-P-1565 (2011), the defendant appealed his conviction claiming, amongst other things, that the introduction of evidence that he had refused field sobriety tests was error. It is well established that evidence of a defendant's refusal to perform field sobriety tests is inadmissible under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Curley, 78 Mass.App.Ct. 163, 167 n. 11 (2010), citing Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995).



Defense counsel, unfortunately, pursued a defense that suggested that the officer had failed to conduct a thorough investigation. Defense counsel in his opening statement described in considerable detail the field sobriety tests that police officers typically request an individual to perform after being stopped on suspicion of operating a motor vehicle while under the influence of alcohol. Defense counsel informed the jury that the purpose of the tests is to determine if the person is intoxicated, and if the performance is satisfactory, the person is not arrested. The jury then was informed by defense counsel, "Now, the police officer, notwithstanding the [weather] conditions, never asked my client to do any of these things, absolutely none of these things."

On cross-examination of the arresting officer, defense counsel asked the witness to describe the various field sobriety tests. After the witness complied, defense counsel asked the witness if he ever asked the defendant to perform the field sobriety tests. The witness responded that he indeed had asked the defendant to perform the tests.



Holding that the defense counsel had opened the door to otherwise inadmissible testimony, the appeals court upheld the introduction of evidence that the defendant refused.



Editors note: This case is a good example of what happens when an eager defense attorney goes 'one step too far.' Always avoid making a statement to the jury about a fact which, although legally suppressed, is untrue. Such conduct not only will destroy the defense counsel's credibility before that judge and that jury, but it likely also destroyed the defendant's chance at winning. Lastly, this is the type of conduct that could lead to licensing sanctions.



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DUI Appeal - Fog line 3 times, Stop Invalid

In State of Washington v. Archuleta, --- P.3d ----, 2011 WL 910023 (Wash.App. Div. 1) the defendant, a juvenile, unsuccessfully challenged the stop of his vehicle in the trial court. The police report stated:

On 091108, at about 0101 hours, I observed a blue Oldsmobile driving in the 400 Block of West Valley Highway S in Algona, King County, Washington. I closed distance with the vehicle and was observing its driving as it proceeded north on the roadway. I observed the right tires of the vehicle cross the white “fog line” in its lane of travel. From 1 st Ave N to the 800 block of West Valley Highway, the vehicle's right tires touched or crossed the fog line at least 3 times in a quarter mile. I stopped the vehicle.

The Washington lane usage statute provided:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The appeals court found the stop was illegal. Citing to other cases including Prado v. Washington 145 Wn.App. 646, 186 P.3d 1186 (2008) , the appeals court reasoned that the statute did not create a strict liability offense and that the defendant's act of “crossing over a lane once for one second by two tire widths [did] not, without more, constitute a traffic violation justifying a stop by a police officer.” In concluding, the opinion stated:

As Archuleta, argues, however, in holding that the lane travel statute does not establish a strict liability offense, Prado actually follows many other states to establish a totality of the circumstances test, including consideration of whether the driver's actions constituted a danger to others and requiring a more sophisticated analysis than just counting the number of times a driver might touch the lane line. Notably, the out-of-state cases that the Prado court found persuasive included factual scenarios that involved more than one instance of touching or crossing a lane divider line, which were nonetheless still insufficient to justify a stop under statutes similar to ours.FN12

In attempting to meet its burden of justifying a warrantless seizure here, the State established only that Archuleta drove once over the fog line by an unstated margin for an unstated length of time, and then twice more drove so that he touched the line, again for an unstated length of time. There was no evidence that this driving imperiled any other traffic or property on the road or off the road, or that the officer recognized this type of driving as suggesting impairment or inattention on the part of the driver. Nor does the record support such inferences. The very limited evidence presented here established no more than “brief incursions over the lane lines.” As the Prado court found, this does not constitute a violation of the lane travel law.

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DUI Appeal of the Day (DAD) - Hit-and-run, Disorderly, OWI, Blood Draw, In-Court ID

In State of Wisconsin v. Cain, Slip Copy, 2011 WL 904409 (Wis.App.), the defendant Cain's appeal involved several issues. The case itself had several interesting tidbits. Cain contended that: (1) the police lacked probable cause to arrest him for disorderly conduct in his residence, requiring suppression of the evidence obtained following his arrest; and (2) the victim's in-court identification of Cain was inadmissible because it was tainted by the victim's inadmissible prior out-of-court identification.

Essentially, the case involved a hit-and-run in a daylight parking lot, where the drivers got out of their cars and briefly stood 20 feet apart. Then one driver left the scene, and the plates and description of the vehicle led to police arriving at the defendant's house. There, the vehicle was observed with a warm engine, and tire tracks in the snow leading into the driveway where the car was parked. police were invited into the home of Cain, who denied driving. Cain became 'disorderly' and was arrested for disorderly conduct, hit-and-run, and his blood was drawn. The victim was shown a photo lineup, with 5 or 6 males, and id'd the defendant. the trial court found the out-of-court ID unreliable. the court, however, found that there was a valid in-court identification, and otherwise also found sufficient probable cause to arrest the defendant. he was eventually convicted of the pertinent charges.
On appeal, the defendant argued that he could not have committed disorderly conduct (i.e. disturbing the public) inside his own home. The appeals court, finding ample probable cause for hit-and-run, held that whether there was a disorderly conduct was irrelevant, so long as there was p.c. for anything else. insofar as the blood draw was concerned, the court found that there was a reasonable suspicion to conduct a warrantless blood draw, based upon a strong odor of alcohol, slurred speech, a and poor balance. (I am personally alarmed that the court in Wisconsin used a reasonable suspicion standard, given that the US Supreme Court in Schmerber v. California held that probable cause is required.)

As far as the in-court identification was concerned, the appeals court acknowledged that, if there is a preceding improper out-of-court identification, then the State has the burden of disproving by a clear and convincing evidence that the in-court identification was also tainted and hence inadmissible. the appeals court employed the following test in determining whether the in-court id was sufficiently reliable, despite the taint:

"We consider the following seven factors, adopted from United States v.. Wade, 388 U.S. 218, 241 (1967): (1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused's actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed [to the reviewing court] concerning the conduct of the lineup."

The appeals court concluded that the victim's in-court identification of Cain was sufficiently purged of the taint of the inadmissible out-of-court identification:
In their totality, the seven Wade factors support admissibility: (1) Prior to the photograph lineup identification, the victim had a sufficient opportunity to observe the offender, viewing him clearly for thirty seconds at a distance of about twenty feet; (2) there were no discrepancies between the victim's pre-lineup identification and Cain's actual description; (3) the victim did not identify any other person prior to the lineup; (4) the photograph lineup was the victim's first picture identification of Cain; (5) the victim had not previously failed to identify Cain as the offender; (6) there were only four days between the incident and the photograph lineup; and (7) the facts of the photograph lineup indicated that the lineup was impermissibly suggestive because Cain was the only pictured individual with a white beard.

Hence, the appeal was denied, and all of the convictions were upheld.


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Pennsylvania's Many DUI Drivers Devastate Families (Part 3) - Pittsburgh News Story - WTAE Pittsburgh

Pennsylvania's Many DUI Drivers Devastate Families (Part 3) - Pittsburgh News Story - WTAE Pittsburgh 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!

Pennsylvania's Many DUI Drivers Devastate Families (Part 2) - Family News Story - WTAE Pittsburgh

Pennsylvania's Many DUI Drivers Devastate Families (Part 2) - Family News Story - WTAE Pittsburgh 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!

Pennsylvania's Many DUI Drivers Devastate Families - Family News Story - WTAE Pittsburgh

Pennsylvania's Many DUI Drivers Devastate Families - Family News Story - WTAE Pittsburgh 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 Appeal of the Day (DAD) - Sentence Increase in Law Postarrest is OK

In State of New Jersey v. Cordero, Not Reported in A.3d, 2011 WL 847029 (N.J.Super.A.D.), the defendant was arrested in 2005, when the maximum or his DWI was up to 90 days jail. However, due to a stay of proceedings in all NJ cases involving the Alcotest litigation, he was not convicted until 2009. By then, the law for his classification of offense had increased to a minimum of 180 days. The judge gave the defendant the increased sentence. On appeal, the defendant claimed that he should have been sentenced in accord with the less severe version of the law that was in effect when he committed the offense.

The appeals court disagreed:

A defendant has no vested right to be sentenced in the manner previously explained to him. Instead, the punishment imposed must accord with the law in effect at the time. “When the Legislature imposes minimum penalties for certain offenses, the judiciary must enforce that mandate.... No defendant can claim a legitimate expectation of finality in a sentence below the statutorily mandated minimum.” State v. Nicolai, 287 N.J.Super. 528, 531-32 (App.Div.1996); State v. Eigenmann, 280 N.J.Super. 331, 337 (App.Div.1995).

This ruling is certainly contrary to many other states, who offer the defendant the choice of the sentence at the time of offense or at the time of sentencing, under the 'rule of lenity'. Equally, the ruling might be at odds with the ex post facto clauses, IMHO.


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DUI Appeal of the Day (DAD) - Improper stop - alleged broken headlight

In State of Missouri v. Williams, --- S.W.3d ----, 2011 WL 864943 (Mo.App. W.D.), the defendant challenged the basis for his vehicle being stopped. The officer claimed that, as he was travelling in the opposite direction, he observed the defendant's vehicle being operated with one of its headlights not illuminating. He then stopped the car, which led to the DUI arrest. The officer also acknowledged that he had had previous contact with the driver 3 hours earlier, in response to a domestic call. The officer's vehicle was equipped with a videotape machine. On the video, however, the trial judge determined that the both lights were in fact illuminated, and found that the stop was illegal. the State appealed.
On appeal, the State claimed that the video did not clearly establish that a headlight (as opposed to a parking light) was illuminated. In refusing to overrule the trial court's findings, the Missouri appeals court adopted the legal principles enunciated in Ornelas v. United States, 517 U.S. 690, 699 (1996): ‘a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.’
Citing such cases as United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005), the State also argued that, even if both of Williams' headlights were functioning properly, the police officer's sincere - but mistaken - belief that the light was off could justify the stop. Rejecting that argument, the court stated:

"Even if this issue were preserved, however, it would not justify reversal. Here, Officer Dollens was travelling at medium speed, at night when headlights are most clearly visible, and on a road with no other oncoming traffic besides Williams' vehicle. The record does not reflect any environmental factors that could have contributed to Officer Dollens' mistaken belief, such as precipitation or the interference of other area lighting. Williams' vehicle passed relatively closely to Officer Dollens' patrol car, and from the dashboard video Officer Dollens had a clear and unobstructed view of both headlights of Williams' truck. In these circumstances, we would be hard pressed to conclude that Officer Dollens' mistaken belief as to whether Williams' passenger side headlight was operational was objectively reasonable."

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DUI Appeal of the Day (DAD)- The Defense of Coercion

In Hines v. State of Georgia, --- S.E.2d ----, 2011 WL 782248 (Ga.App.), the police officer Brooks was sent to Buffalo's restaurant in Dublin in response to a call about a fight in progress in the restaurant parking lot. The defendant was seen “[w]hen "backing out in a hurry and he was leaving the parking lot in a big hurry”; and that he was going “[m]uch faster” than normal for a parking lot. Brooks estimated the truck's speed to be at least 25 mph as it exited the lot. In light of the report Brooks had received about a fight in progress, Brooks concluded from his knowledge, training, and experience that the driver of the pick-up truck was involved in the fight and was trying to flee the scene. Brooks pulled his police car in front of the pick-up truck and stopped it in order to question the driver about whether he was involved in the fight. The defendant claimed coercion, because he was trying to avoid a fight in the parking lot. The jury found against the defendant.

First, the appeals court found that there was a reasonable suspicion to stop the defendant's car. The defendant argued that the evidence was insufficient to sustain his convictions because he presented evidence of coercion. Under Georgia law, a person cannot be guilty of any crime, except murder, “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” But “[t]he danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.” Coercion is an affirmative defense, but it is a defense “only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm.” The state has the burden to disprove coercion beyond a reasonable doubt.

The court found that the jury verdict against the defendant, in spite of the coercion defense, was not improper:

"On cross-examination, Hines admitted that he was not coerced into driving the car away from the restaurant. Hines testified that an employee of the restaurant asked him to leave; that he drove away to avoid a fight; that he had three or four beers before driving the truck; that he had a cell phone in his possession but he did not attempt to call 911, nor did he ask the Buffalo's employees to call a cab for him; and that the person who was trying to fight him was in the parking lot but was not armed."

NOTE: Although the defense here lost, the case supports the proposition that the defense of coercion IS applicable to a DUI case.

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DUI Appeal of the Day (DAD) - Estimation of Speed for Traffic Stop

In Deramus v. State of Texas --- S.W.3d ----, 2011 WL 582667 (Tex.App.-Waco), the defendant challenged his traffic stop, arguing that the officer's visual estimation of the speed of his vehicle was insufficient as a matter of law. Officer Clark testified that “the vehicle was traveling at a speed greater than the posted speed limit,” and that he was “familiar with what a car traveling in that block looks like at 40 miles an hour, and this vehicle was traveling at lot faster than that.” Officer Clark further testified that he estimated Deramus's speed to be fifty miles an hour.

The appeals court overruled the defendant's objection:

"There is no statutory requirement that an officer always use radar to confirm a vehicle's speed, nor is it always possible for an officer to do so. Further, it is not necessary to show that Deramus actually violated a traffic regulation. “It is sufficient to show that the officer reasonably believed that a violation was in progress.” Powell v. State, 5 S.W.3d 369, 376-77 (Tex.App.-Texarkana 1999, pet. ref'd). We therefore hold that Officer Clark had a reasonable suspicion that Deramus was committing a traffic offense based solely on his visual observation of Deramus's speed and his determination that Deramus's speed was not reasonable and prudent."

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DUI Appeal of the Day (DAD) - Failure to prove Impairment Despite .09 and Death

This case comes to DAD from expert and Mass attorney Tom Workman. In Commonwealth v. Filoma (2011) a Massachusetts jury convicted the defendant of, inter alia, operating under the influence and causing serious bodily injury. The facts established that the defendant consumed 4-6 beers at a Super Bowl party, and then (when the Patriots won) he attempted to drive to an ex-girlfriends house. The massive fans on the street made travailing the streets difficult. He drove backwards on a one-way street at about 20-35 mph until police attempted to stop him. He then drove forward at speeds up to 60mph while students/fans jumped out of the way. He eventually struck 5 pedestrians, killing one and seriously injuring 2 others. At the station, he passed the only filed sobriety test. Many hours post-arrest, he blew .09 Brac twice. The State chose to omit any instructions regarding a presumption of guilt at or above 0.08 (perhaps because of the time delay).

The State expert provided the opinion that the defendant's readings of .09 at 4:27 A.M. and 4:30 A.M. enabled projections of higher amounts of .10 percent to .14 percent as of 2:15 A.M. and inferably higher amounts two and one-half hours earlier, at the time of the events on Symphony Road. However, the expert never explained the fundamental connection between the amounts of blood alcohol content and the punishable condition of impairment: the diminished capacity to operate a motor vehicle safely. The appeals court went on to state:

"The omission of that explanatory connection, in the words of the Colturi decision, left the jury "to guess at [the] meaning" of the breathalyzer measurements. (citation) Consequently, in the absence of the per se theory instruction and of an impairment theory expert opinion, proof of the elements of operating under the influence was deficient."

The appeals court therefore reversed the conviction for OUI outright.


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DUI Appeal of the Day (DAD) - State deliberately destroyed potentially exculpatory evidence

In State of Delaware v. Wright, Not Reported in A.3d, 2011 WL 826357 (2011 Del.Com.Pl.),upon entry of appearance, counsel for the Defendant filled a request under Court of Common Pleas Criminal Rule 16 for the production of “a copy of the videotape/recording device of the in-station security tape/recording, as well as the 20 minute observation period”.FN1 Defense counsel proffered that there “was not a 20-minute observation period and that the examining officer left the room during the observation period.” FN2 This observation period is required to properly lay the foundation for admissibility of the intoxilyzer test results at trial. Upon subpoena, the chief would constantly respond that:

Please be advised that The Rehoboth Beach Police Department does not have a video tape of your client walking into the building or of the twenty minute observation period. We have a surveillance camera that is used for security purposes monitored by our Dispatch Center. This device records for immediate playback only. There is no retention of these recordings.

His system was built to hold up to 2.6 days of video when set to record 24/7, and about 4.6 days when set for motion only. However, in reality the system worked much longer, and the police often retrieved video when accused of assaulting arrestees or for other beneficial purposes. Thus, the chief knew that his statements were false or misleading. His misleading statements were repeated for years, as evidence was allowed to be erased and destroyed.

When the trial court here found out, it suppressed the breath test as a sanction based upon a discovery violation:

The Court finds that the Rehoboth Beach Police Department's discovery policies constitute entrenched, flagrant misconduct. Between 2006 and 2009, Chief Banks repeatedly distributed incorrect discovery responses to defense attorneys despite his knowledge that these responses were misleading and incorrect.

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DUI Appeal of the Day - Report of 'Drunk' Insufficient for Stop

In State of Ohio v. Wagner, Slip Copy, 2011 WL 598433 (Ohio App. 11 Dist.), 2011 -Ohio- 772, the defendant appealed the denial of his motion to suppress. There, a Taco Bell employee named Michael Stumpf had reported that a driver at the drive-thru was "drunk." based upon this report, Lt. Altamore saw the car as it exited the drive thru and made a wide turn onto the street. Altomare stated that he informed Officer Schlosser of this wide turn at some point but that he could not remember if he informed Schlosser or dispatch of the turn before Schlosser committed the stop of the vehicle or if he told Schlosser later, while Schlosser was writing his report of the incident. Altomare also testified that he did not actually witness Wagner face to face and therefore did not observe any behavior that indicated to him whether Wagner was intoxicated.
The appeals court stated the applicable law as follows:

“Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.” Weisner, 87 Ohio St.3d 295, at paragraph one of the syllabus. “The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer ‘were themselves aware of the specific facts which led their colleagues to seek their assistance.’ It turns instead upon ‘whether the officers who issued the flyer’ or dispatch possessed reasonable suspicion to make the stop.” Id. at 297, citing United States v. Hensley (1985), 469 U.S. 221, 231 (emphasis sic). If the dispatch “has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment.” Hensley, 469 U.S. at 232

In finding the stop illegal, the court pointed out the following:

An officer typically has sufficient justification to effectuate a stop based on a violation such as travelling left of center, as occurred in this case. However, the failure of the state to prove that Schlosser either personally witnessed the traffic violation or that Altomare conveyed this information to Schlosser via dispatch prior to Wagner being stopped, prevents the stop from being valid.

The appeals court also considered whether the original complaint by the Taco Bell employee, standing alone, was sufficient to stop the vehicle. They concluded that it was not:

“A citizen-informant who is the victim of or witness to a crime is presumed reliable.” State v. Livengood, 11th Dist. No.2002-L-044, 2003-Ohio-1208, at ¶ 11 (citation omitted). When determining the validity of such an informant's tip, we should consider whether the “tip itself has sufficient indicia of reliability to justify the investigative stop” by considering the “informant's veracity, reliability, and basis of knowledge.” Weisner, 87 Ohio St.3d at 299.

Stumpf was a Taco Bell employee who relayed information that he believed Wagner was drunk to Lieutenant Altomare. Because Stumpf is a citizen-informant, we presume that he was generally reliable. However, we must also consider whether the information relayed by Stumpf to Altomare, and ultimately to Schlosser, had sufficient indicia of reliability and a basis of knowledge that would justify a stop of Wagner's vehicle.

Altomare, the only witness to testify at the suppression hearing, stated that Stumpf informed him that Wagner, who was at the drive-thru window, was “drunk.” Altomare did not testify as to any other statements made by Stumpf, or explain any additional details as to why Stumpf believed Wagner was drunk. Additionally, Altomare never observed Wagner face to face on that night and had no personal knowledge of whether Wagner was drunk. Upon receiving information only that Wagner was “drunk,” Altomare informed dispatch of a possible drunk driver.

A citizen informant's statement that the suspect was “drunk,” without more, does not provide reasonable suspicion. An informant must give some details providing reasonable suspicion of drunk driving. See State v. Brant, 10th Dist. No. 01AP-342, 2001-Ohio-3994, 2001 Ohio App. LEXIS 5263, at *8-9 (where a tip given by a citizen indicated that the suspect “was honking his horn for ten minutes, his shirt was on backwards and inside out and his speech was very slow,” and the citizen did not indicate that he “witnessed any traffic violations, unlawful behavior, or evidence of impaired driving,” there was not reasonable suspicion of OVI to stop the suspect); State v. Morgan, 11th Dist. No.2008-P-0098, 2009-Ohio-2795, at ¶ 22 (the odor of alcohol, strange behavior, and comments made about not being sober provided reasonable suspicion for a stop to be conducted).

Editors Note: This case is a good example of the legal principle, followed in many states, that a conclusory report of "drunk driving" standing alone, fails to contain specific and articulable facts to support the stop of a vehicle.


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DWI Appeal - Acquittal Reversed, But Failure to Provide Breath Test Data Causes Suppression

In State of New Jersey v. Tsoullis, Not Reported in A.3d, 2011 WL 767721 (N.J.Super.A.D.), the defendant sought a download of the data for the Alcotest breath alcohol machine from the prosecutor. After a failure to provide the download, the municipal judge, at the request of the defendant, suppressed the result. The defendant then entered a conditional plea of guilty, and sought review in the Law Division. The law division judge found that the failure to provide the download data not only violated Brady v. Maryland, but also raised a reasonable doubt as to the defendant's guilt. Hence, the judge entered a judgment of acquittal. The prosecution appealed.

On appeal, the first issue raised was whether the appeal of a judgment of acquittal violated double jeopardy. Acknowledging that, as a general rule, an acquittal cannot be appealed, the appeals court found that the law division's order was more appropriately an order of dismissal for a discovery violation, and hence reviewable.

On review, the appeals court found that the failure to provide the download was a proper basis for suppressing the test result, but that outright dismissal was not proper. First, there was no evidence that the data, if produced, would have been favorable to defendant. Hence a Brady violation did not occur (there is good case law cited for the proposition that if a Brady violation occurs then total dismissal is appropriate). Equally, since there was no evidence that the data, if produced, would have proven that the defendant was NOT under the influence, a judgment of acquittal was also erroneous. The cause was reversed and remanded to reinstate the plea of guilty.


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DUI Appeal of the Day (DAD) - Warrant was “invalid”- 4th amendment testimony inadmissible

In State of Utah v. Dominguez, --- P.3d ----, 2011 WL 692811 (Utah), 2011 UT 11 a judge erroneously issued a telephonic search warrant authorizing a blood draw from defendant that was not issued in compliance with the rule requiring the magistrate to retain the search warrant and all supporting documents. The Supreme Court, however, found that the failure to do so did not require exclusion of the evidence. "[N]ot all constitutional errors trigger exclusion: “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” United States v. Leon, 468 U.S. 897, 916 (1984) (emphasis added)."

Of equal interest in the opinion was the courts resolution of whether the defendant was prejudiced at all. The court first noted that the defendant's 'silence' in not contesting the accuracy of the officer's averments in the application essentially conceded to their truth. The defendant countered that such an analysis would compel the defendant to choose between testifying at a Franks hearing and making admissions that could be used against him later, or tacitly accept the violation of his rights. The courts response to that argument was as follows:

In testifying at a Franks hearing, Dominguez would not have had to “forfeit his Fifth Amendment right to remain silent,” as the court of appeals concluded. State v. Dominguez, 2009 UT App 73, ¶ 17, 206 P.3d 640. In fact, the law is well settled that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “Without this rule, a defendant would have to surrender his Fifth Amendment privilege against self-incrimination in order to assert a valid Fourth Amendment claim.” State v. Hansen, 2002 UT 125, ¶ 49 n. 4, 63 P.3d 650.

Note: The case is yet another example that, even if a violation of law is proved in the area of search and seizure, courts are expecting that there be a policy justification before blindly ordering a suppression of evidence.

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DUI Appeal of the Day (DAD) - NHTSA Manual Barred

In State of Tennessee v. Blair, Slip Copy, 2011 WL 743396 (Tenn.Crim.App.) the Defendant contended that the trial court improperly limited his cross-examination of the arresting officer by preventing use of the National Highway Traffic Safety Administration (“NHTSA”) manual. The Defendant sought to introduce portions of the NHTSA manual, which educates officers on field sobriety tests and clues that a defendant may be intoxicated, for purposes of cross-examination of the arresting officer concerning the officer's compliance with the manual.

The officer gave the defendant five tests. At a pre-trial hearing, the cop stated that the first test was the Horizontal Gaze Nystagmus (“HGN”) test, which the State conceded was not admissible. The second test was an “alphabet” test where the officer asked the Defendant to recite part of the alphabet, specifically letters “H” through “U”. This, the officer conceded, was not a standardized field sobriety test. The third field sobriety test entailed asking the Defendant to count down from 63 to 47, which is also not a standardized field sobriety test. The fourth and fifth tests were both standardized field sobriety tests, the one-legged stand test and the walk and turn test. The officer testified that when he said “standardized” he meant that they were identified by NHTSA as the highly reliable and valid tests for detecting impairment due to an elevated blood alcohol level. According to the NHTSA manual, the one-legged stand test has a 65% rate of reliability and the walk and turn test has a 68% rate of reliability in indicating impairment.

The trial court barred use of the manual, stating:

[T]he field sobriety tests are not scientifically accurate, ... [and] this officer has not been qualified as an expert. And in as much as he has ... not been qualified as an expert, no such cross-examination can be made by the use of a learned [treatise]. And these manuals haven't been established as such anyway.

At trial, the officer described in great detail the defendant's performance on each test. Based upon the Defendant's driving, his statements, and his performance during the field sobriety tests, the officer concluded that the Defendant's blood-alcohol level was above the legal limit and that the Defendant should not be operating a motor vehicle.

On appeal, the Court sustained the barring of use of the NHTSA manual. Discussing the learned treatise doctrine, the court stated:

Rule 618 of the Tennessee Rules of Evidence allows a party to impeach an expert witness with a learned treatise.FN2 This rule allows a party to impeach the expert witness using a learned treatise to test the expert's knowledge and understanding of a topic at issue. Neil P. Cohen et al., Tennessee Law of Evidence, § 6.18[2][a] (5th ed.2005). When the requirements of Rule 618 are satisfied, the most common approach for using this impeachment technique is for counsel to read a portion of a treatise, ask the expert witness whether he or she agrees with the treatise, and compare the treatise with the expert's response. Id. at § 6.18[2][b]. A learned treatise may not be used to impeach a lay witness, since Rule 618 extends only to impeachment of expert witnesses. Id. at § 6.18[2][a].It too found that the tests themselves weren't scientific, and that the officer was not an 'expert'.

The appeals court agreed that the tests were not 'scientific', that the cop was not an expert, and therefore ruled that the learned treatise exception was inapplicable. "Defense counsel may only use a manual to formulate questions for cross-examination; counsel may not use it to impeach the officer. To subject a “lay” witness, whose testimony by definition is based only upon facts observed, not about opinions or inferences, to cross-examination based upon a “learned treatise” in the same fashion an expert is subjected to cross-examination would be improper."



EDITORS NOTE: The problem with the opinion originates with the failure of the court to deal with the fact that the officer was erroneously (since he is not an expert according to the court) allowed to 'opine' that the tests can be used to measure an alcohol limit (the cop used them for that purpose), and that the cop was allowed to render an opinion on the defendant's BAC (i.e. above the limit). If the cop is not an expert, frankly no mention of the training, testing, clues, sources of the tests or opinions should ever have been offered. Once these items were introduced, counsel should have been allowed to prove to the jury what the appellate court themselves admitted - the cop is no expert and the tests are not scientific. The next motion in limine should bar all of the officers statements about his training, the source of the tests, evidence regarding standardized clues and his opinions about BAC levels too.


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DUI Appeal of the Day (DAD) - License Plate Covering Makes Stop 'Unspirited'

This case comes to the attention of DAD through the watchful eyes of NCDD member Richard Mulhearn. In Commonwealth v. Miller, the trial court found that the stop of the defendant was unlawful, where the defendant had covered the portion of the plates of his car with black tape over the words 'Spirit of America.' The stripe did not cover the license plate number, the sticker that identified the month of registration or the word 'Massachusetts' in any way.

On appeal, the court found that the regulation was invalid to the extent that it prohibited a plate from being covered, even of the identifying information itself was clearly visible, such as the numbers and expiration tags. However, the court had to decide whether the trooper stop was based on mistake of law or mistake of fact. If it was the latter, then the stop itself would still be valid. The court stated:

The plain language of the regulation demonstrates that it is inapplicable to this case because it only relates to license plate frames, not "stripes."

* * * *
Because the trooper based his stop on the entirely erroneous belief that the stripe on the defendant's license plate violated 540 Code Mass. Regs. § 2.23(3), the stop was based on a mistake of law and not one of fact. The trooper believed that these facts gave him a reasonable basis to believe that the defendant was violating a regulation when, as matter of law, he was not. See Commonwealth v. Porter P., 456 Mass. 254, 267-268 (2010) (search invalid where officer misunderstood law and incorrectly determined that manager could consent to search of juvenile's room). The trooper did not have any basis to stop the defendant; therefore the stop was improper and the evidence obtained as a result of that stop must be suppressed.

NOTE: The case also contains a helpful analysis of how to attack the validity of a regulation, when it exceeds the scope of the enabling clause that was granted to the agency that promulgated the reg. This legal analysis can often be employed when attacking police regulations that deal with blood and breath testing...


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DUI Appeal of the Day (DAD) - When is a bad judge bad enough?

In Gaal v. State --- S.W.3d ----, 2011 WL 709698 (Tex.Crim.App.) the defendant was eventually convicted by jury of a Felony DWI. The defendant waffled back and forth about whether to have a plea or not. At the second plea setting, he again changed his mind. The judge said:

"We're supposed to have a plea here today. It appears that Mr. Gaal does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it's for the maximum term of ten years.”

The thereafter filed a motion to recuse the judge, based on his statement at the aborted plea hearing three days earlier. He argued that the trial judge's statement about refusing to accept any plea bargain for less than the maximum showed that the trial judge had entered into the plea-bargain process, could not be fair and impartial, and had demonstrated an arbitrary refusal to consider the entire range of punishment. The recusal judge denied appellant's motion to recuse. He first noted that “the trial judge doesn't have to take a plea bargain.” Second, he said that the record did not support a finding that the trial judge's ruling was arbitrary because the case file showed that appellant had had four or five violations registered on his interlock device while he was on bond. He had not stopped drinking and attempting to drive afterwards. The recusal judge stated that the record before him “doesn't support a position that [the trial judge] had some preconceived notion other than what was going on in this case, dealing with this defendant and the defendant's history while the case was going on.” Appellant's jury trial began later in August. He pled guilty to the jury and, after hearing the evidence, the jury sentenced him to ten years confinement.

On appeal, appellant argued, in part, that the recusal judge abused his discretion in denying his motion to recuse. The court of appeals agreed. It relied on Norton v. StateFN6 and Jefferson v. State for the proposition that the trial judge had “forecasted his inability to consider the full punishment range” and denied appellant due process when he stated that he would consider a plea bargain only for the maximum punishment. The court concluded that the recusal judge had abused his discretion in denying appellant's motion to recuse.
Additional appeal was then granted from the appeals court decision. The law on recusal was discussed as follows:

• A judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

• The Texas Civil Rules of Procedure, which were determined to apply here as well, state that “A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; [or] (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]”

• Federal due process may also require recusal. Three situations have been held to rise to this level under the federal Due Process Clause: 1) when the judge has a financial interest in the case; 2) when the judge had acted as a one-man grand jury to bring charges in the case he is trying; and 3) “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” Caperton v. A.T. Massey Coal Co., Inc., ---U.S. ----, ---- - ----, 129 S.Ct. 2252, 2259-64, 173 L.Ed.2d 1208 (2009). As Justice Kennedy has stated, a judge's impartiality might reasonably be questioned “only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.” Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring).

• Generally, though, recusal is not required when based solely on judicial rulings, remarks, or actions. These acts almost never constitute a valid basis for a bias or partiality motion. In and of themselves ..., they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

• Thus, a judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.” FN22 On the other hand, “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women” may display, do not establish bias or partiality. FN23 Thus, a trial judge's ordinary efforts at courtroom administration do not render him subject to recusal.FN24 Although intemperate remarks may well violate a rule of judicial conduct, such a violation does not necessarily mean that the judge should be recused.

• Recusal has been required, however, when a trial judge revoked a defendant's bond and put him in jail solely because he decided to invoke his right to a jury trial,FN26 or when a trial judge arbitrarily, without any evidence before him, refused to consider a portion of the range of punishment. Recusal of the trial judge in a criminal trial was also proper under the reasonable-person standard where the trial judge's remarks evidenced “a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record,” or a personal prejudice against the defendant for successfully appealing his conviction on the basis of the judge's actions during a prior trial.
Finding that the trial court did not display the requisite lack of impartiality, the higher court upheld the denial of recusal. It stated:

"The trial judge's comments could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he had twice rejected favorable plea bargains-one the minimum possible jail time-and was continuing to drink in violation of his bond conditions. Thus, the trial judge would not encourage further delay for more plea bargaining (after all, who is going to accept a plea bargain for the “maximum”?); it was time to try this case as soon as possible. The trial judge never intimated, nor is there anything in the record that would logically support a finding, that he would not fairly consider the entire range of punishment at trial. His comment, taken in light of the totality of the circumstances, is more logically construed as an expression of impatience with a defendant who reneges on his agreements to plead and to abide by the DWI bond conditions. A reasonable person, based on the totality of the circumstances, would translate the judge's statement as, “I'm not going to reset this case for any more plea negotiations; we're going to trial.” That statement does not suggest that the trial judge's impartiality might reasonably be questioned, and it is not a basis for recusal."

Thus, the DWI conviction was upheld and the 10 year sentence was reinstated.


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DUI Appeal of the Day (DAD) - "You Are Under Arrest" is not an 'arrest' at Common Law

In Young v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 690655 (Va.App.) the defendant was arrested in Virginia. Virginia has a statute that requires, inter alia, that the defendant must be 'arrested' prior to submitting to a blood or breath test. Further, the arrest must occur within 3 hours of the offense for the implied-consent provisions to be applicable. On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.FN1 Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2-73. At the time of the offense, Code § 19.2-73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2-266.”

The defendant claims that he was not 'arrested' within the terms of the law because he was not taken into physical custody. he cites to valid caselaw that holds that the mere words of an officer, telling a defendant "You are under arrest" is not sufficient to constitute an arrest:

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).FN3 Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626-27 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2-478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

Ultimately, the Virginia court held that the issuance of the summons, coupled with the words of the arrest, were sufficient earmarks to constitute an arrest. Additionally, the court used the intent of the statute, and under the doctrine of pari materia, looked at other statues dealing with similar actions and found that the intent was to allow catch-and-release summonses as 'arrests' for purposes of the Virginia laws.

The dissent also made valid points:

It is important to note that Trooper Finch issued the summons after the blood sample was taken, and not prior to it.

Because the Virginia Court found that an arrest had occurred prior to the defendant's submission to a blood draw, the Court affirmed the conviction and the admission of the result.

EDITORS NOTE: Although the Virginia Court disagreed with the defense, this argument has some validity. Further, the issue of an arrest also triggers the appropriate probable cause issue at the time of arrest - not afterwards.

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DUI Appeal of the Day (DAD) - Roadblock approved by Field Captain

In Jacobs v. State, --- S.E.2d ----, 2011 WL 677949 (Ga.App.) the defendant challenged his arrest for DUI by claiming that a highway roadblock that was implemented by a field officer, rather than by a supervisor at the programmatic level, and, therefore, that the trial court erred in denying his motion to suppress evidence obtained as a result of that roadblock. The person who implemented and approved the roadblock was Captain Crawshaw. As a captain, Crawshaw was the senior officer in the field, charged with supervising a shift that consisted of herself, a lieutenant, and at least five officers. Above Crawshaw in the chain of command were one of four majors and the chief of police, who decide the policies within the departments. The Fayetteville Police Chief established departmental uniform goals, pursuant to which each shift would conduct a certain number of road safety checks per quarter. Before July 25, 2009, Crawshaw discussed the uniform goals generally, along with the prescribed procedure for conducting a roadblock, with the chief and the majors. As a shift supervisor, Crawshaw was authorized by her superiors to plan and implement roadblocks. Although she obtained some input from her subordinates, Crawshaw did not obtain prior approval, either written or verbal, from her superiors of her plan to have a roadblock on July 25, 2009.

The State must prove that a highway roadblock program “was implemented at the programmatic level for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.”

The Georgia court found that the captain was a 'supervisor at the programmatic level' as contemplated under the law:

Applying controlling precedents, we conclude that Crawshaw was a supervisor by virtue of the fact that her rank and job duties required her to supervise the work of a number of officers of subordinate rank, even though she supervised those subordinates in the field, rather than from behind a desk, and even though she initially screened Jacobs at the roadblock.


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