DUI Appeal - Double Jeopardy Bars Retrial, Says North Dakota

In Day v. Judge Bruce Haskell, --- N.W.2d ----, 2011 WL 2505052 (N.D.), 2011 ND 125, the defendant sought a writ from the Supreme Court of North Dakota to bar a judge from forcing the defendant to be retried. The facts of the case are unusual:
"In April 2010, Day was charged by complaint with driving under the influence of alcohol. A jury trial was held in February 2011. After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

"The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

"On March 10, 2011, Day moved to dismiss the complaint, arguing a second trial was prohibited under Fifth Amendment double jeopardy principles. In April 2011, the trial court, another judge presiding, denied Day's motion to dismiss, finding a mistrial was reasonably necessary."


As stated in the opinion:

"‘The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.’ “ Linghor, 2004 ND 224, ¶ 20, 690 N .W.2d 201 (quoting State v. Berger, 235 N.W.2d 254, 257 (N.D.1975)). Here, jeopardy attached when the jury was empaneled and sworn.

"However, the Double Jeopardy Clause does not prohibit retrial in every case where the first trial has terminated after jeopardy attached but before a verdict is rendered. Linghor, 2004 ND 224, ¶ 20, 690 N.W.2d 201. Whether a defendant may be retried depends on whether a mistrial was properly granted. State v. Voigt, 2007 ND 100, ¶ 12, 734 N.W.2d 787. The basic controlling principles in determining whether a mistrial was properly granted are manifest necessity and the ends of public justice. Id. In United States v. Perez, 22 U.S. 579, 580 (1824), a landmark case construing the Double Jeopardy Clause, the United States Supreme Court said:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office."

Concluding, the court stated:
"In this case, the attorneys were briefly afforded an opportunity to be heard on the issue. However, the trial court failed to consider other alternatives before granting the State's motion for a mistrial and the decision was not made after sufficient reflection. The trial court allowed the attorneys to question the bailiff at Day's attorney's request, but in response, the trial court said, “frankly, any conversation would be grounds for a mistrial. So I'm not—I'll allow you to make your record, I don't think that it's going to be particularly helpful.” The issue was raised shortly before 10:49 a.m., and the trial court granted a mistrial at approximately 10:56 a.m. The trial court did not make any findings about juror bias or prejudice. Day's attorney requested a curative instruction, but the trial court failed to consider the request and granted a mistrial. The record indicates the trial court believed a mistrial would be required if there was any conversation between the defendant and the jury. A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius, 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor, 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion” required before making its decision.

"Under the facts and circumstances of this case, we conclude granting a mistrial was not manifestly necessary and retrial is constitutionally barred."


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DUI Appeal - Source Code Win in Georgia

In Davenport v. State of Georgia, --- S.E.2d ----, 2011 WL 2436668 (Ga.) the trial court denied a request for defendant's request for a certificate requesting the attendance in Georgia of an out-of-state witness, namely the Person in control of the source code for the Intoxilyzer 5000. On appeal, the Supreme Court of Georgia found that the trial court's determination that such a witness was not 'material' employed the wrong standard. The standard announced in the opinion states:
“a material witness is ‘a witness who can testify about matters having some logical connection with the consequential facts, esp. if few others, if any, know about these matters.“
The court then remanded the matter for further proceedings. Of additional interest however, was the concurring opinion, which is reproduced in full herein:
I join fully in the majority opinion and note that it may have two salutary effects. First, in Lattarulo v. State, 261 Ga. 124, 401 S.E.2d 516 (1991), this Court held that the results of breathalyzer tests conducted in accordance with the statutory scheme “may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Id. at 127, 401 S.E.2d 516. But the Court also said that “[a]n accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction,” with such evidence going to the weight of the breathalyzer results. Id. at 126, 401 S.E.2d 516. Under today's decision, defendants seeking to obtain such evidence from another state must still show the Georgia court that the evidence is “material” to their case as required by OCGA § 24–10–94(a), but they need not make the more demanding showing required by the now-disapproved Court of Appeals' decisions.

Second, by applying the correct “material witness” standard, trial courts may alleviate the due process concerns that may otherwise exist (but are not well presented in this appeal) when the State enacts a statutory scheme in which: (1) evidence usually determinative of the defendant's guilt (e.g., blood alcohol content in a per se DUI prosecution) is tested and reported, not by forensic experts who testify and face cross-examination on the reliability of their methods and the accuracy of their results, but rather by a machine (e.g., the Intoxilyzer 5000) that takes in a specimen from the defendant and, through internal mechanisms and computer code, generates a test report; (2) the machine's computer code is unavailable to the defendant through discovery or compulsory process because the State avoids possessing it in Georgia; (3) the machine's test result is admissible at trial through a witness who can say that he was qualified to operate the machine and it operated as designed (see, e.g., OCGA § 40–6–392(a)), but who has no knowledge about whether the machine was in fact designed to produce reliable and accurate results under the circumstances presented; and (4) the machine uses up the specimen, with nothing maintained for later confirmation or independent testing.
Lastly, the dissenting opinion stated in part:
"[T]here is no merit to Davenport's assertion that the trial court's ruling denies her constitutional rights to compulsory process, confrontation, due process of law, and a fair trial. The contention is based upon the premise that the I–5000 is Davenport's accuser, invoking the constitutional right of confrontation. However, as noted by the State, the I–5000 is simply a tool used by law enforcement to determine the breath-alcohol content of a driver who is suspected of driving under the influence. Davenport was adjudged guilty by the trial court on the basis of evidence, to which Davenport stipulated, some of which was reported by the I–5000 after it was certified to be fully operational. In the context of a challenge to the admission into evidence of an inspection certificate for the Intoxilyzer, this Court has determined that there is no violation of the right of confrontation. Rackoff v. State, 281 Ga. 306, 309(2), 637 S.E.2d 706 (2006); Brown v. State, 268 Ga. 76, 80, 485 S.E.2d 486 (1997); see also Jacobson v. State, 306 Ga.App. 815, 818(4), 703 S.E.2d 376 (2010). This is so, in part, because an inspection certificate, like a computer source code, is not testimonial in nature; it is part of the regular course of business regarding operation of the I–5000, and it is not utilized in an investigatory or adversarial setting or generated in anticipation of the prosecution of a particular defendant. Rackoff v. State, supra at 309(2), 637 S.E.2d 706.


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DWI Appeal - Texas Jury Instruction on Refusals Flawed

In Galinas v. State of Texas, Not Reported in S.W.3d, 2011 WL 2420858 (Tex.App.-El Paso), the defendant was stopped because he allegedly had a red light illuminating his rear license plate (the law requires white) and because he failed to signal while exiting a private driveway onto a public road. With regard to the light above the plate, the videotape of the stop showed that the light above the plate was actually white, as required by law. Trooper Marquez stated that at the time of the traffic stop, he believed Appellant's failure to signal out of the private driveway constituted a traffic violation. It was ultimately determined that the officer incorrectly believed that Texas law required the use of a signal while turning from a private driveway. He also stopped the vehicle because of a red license plate light. After the traffic stop, Marquez noticed that there was also a white light illuminating the license plate. At the time of the stop, he saw only the red light. A white light illuminating a license plate must be visible from at least fifty feet. With regard to the license plate light, he could not tell whether the light was “white”; he could only tell that it was “faint.” The trial court denied the motion to suppress.

In Texas, apparently the jury is also instructed to decide whether a stop was illegal and whether evidence should therefore be suppressed. The defendant on appeal complained that the trial court abused its discretion in failing to give the requested suppression instruction to the jury (which admittedly correctly stated Texas law):



"If you the jury find that Trooper Diego Marquez illegally stopped the defendant on February 16, 2007, or have any reasonable doubt thereof, you are instructed to exclude all evidence obtained by the trooper from and after the illegal stop from—during your deliberations."



Instead, the jury was wrongfully instructed to the opposite:



"...if you find from the evidence that on the occasion in question the Defendant, JAMES HENRY GELINAS, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle's license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever."



The State argued on appeal that, even though the jury instruction was wrong, the arguments of counsel corrected the defect. In rejecting that argument, the court wrote:



"The Hutch majority quickly rejected the contention that legal arguments could cure charge error:



The United States Supreme Court, when faced with the assertion that a prosecutor's argument on a presumption of innocence cures a jury charge deficient in that instruction, wrote ‘arguments of counsel cannot substitute for instructions by the court.’ [Citation deleted]. And, we have similarly noted that ‘jury argument is not a substitute for a proper jury charge.’


Id. at 173–74. The majority then recognized that because the application paragraph was so flawed as to charge the jury on the opposite of what the law actually provides and because the legality of the stop was a hotly contested issue, the error could not be cured by jury arguments. Id. at 174. Because the error vitally affected Hutch's defensive theory, the court reversed and remanded.

The right to a trial by jury in criminal matters is among those fundamental rights guaranteed by our Constitutions. In order to effectuate this valuable right, there is a minimal requirement that the instructions to the jury not be exactly opposite of what the law actually is."



Due to the error, the appeals court reversed and remanded for a new trial.


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DWI Appeal - US Supremes Bar Blood Test Without Actual Analyst Testimony

In Bullcoming v. New Mexico, the government sought to introduce a blood test without having the analyst who performed the actual test appear and testify in court. The United States Supreme Court held that such a technique violates the Confrontation Clause, and reversed the conviction.

Here is the Summary from the court:

In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonialstatements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu-setts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, cre-ated specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipula-tion, the Court ruled, the prosecution may not introduce such a re-port without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certi-fying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed thetest on Bullcoming’s blood sample. Bullcoming’s counsel objected, asserting that introduction of Caylor’s report without his testimonywould violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under Melendez-Diaz, but held that the report’s admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test re-sults, and (2) SLD analyst Razatos, although he did not participate intesting Bullcoming’s blood, qualified as an expert witness with re-spect to the testing machine and SLD procedures. The court affirmed Bullcoming’s conviction.

147 N. M. 487, 226 P. 3d 1, reversed and remanded.

JUSTICE GINSBURG delivered the opinion of the Court with respect to all but Part IV and footnote 6. The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimonyof an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made thecertification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.

(a)If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made thestatement is unavailable and the accused has had a prior opportunity to confront that witness. Pp. 8–14.

(i)Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sampleintact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank,indicating that no circumstance or condition affected the sample’s in-tegrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. The potential ramifi-cations of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events.Where, for example, a police officer’s report recorded an objective fact such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he orshe was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does notdispense with the Clause. Crawford, 541 U. S., at 62. The analysts who write reports introduced as evidence must be made available forconfrontation even if they have “the scientific acumen of Mme. Curieand the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___,n. 6. Pp. 10–11.

(ii)Nor was Razatos an adequate substitute witness simply be-cause he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of thekind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed toreveal whether Caylor’s incompetence, evasiveness, or dishonesty ac-counted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fairtrial, it does not follow that such rights can be disregarded because,on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548 U.S. 140, 145. If a “particular guarantee” is violated, no substituteprocedure can cure the violation. Id., at 146. Pp. 11–14.

(b)Melendez-Diaz precluded the State’s argument that introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in Melendez-Diaz, the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz. Here, as there, an officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificateconcerning the result of his analysis. And like the Melendez-Diaz
certificates, Caylor’s report here is “formalized” in a signed document, Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report formcontains a legend referring to municipal and magistrate courts’ rulesthat provide for the admission of certified blood-alcohol analyses.Thus, although the SLD report was not notarized, the formalities at-tending the report were more than adequate to qualify Caylor’s assertions as testimonial. Pp. 14–16.

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DWI Appeal - Confrontation Clause Applies in Probation Revocation Hearing Too

In the fourth of a series of cases involving the right of confrontation, the next case discusses the right of confrontation under the Due Process Clause of the 14th amendment (as opposed to the 6th Amendment right of confrontation found in Melendez-Diaz). The case of Henderson v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 2447084 (Va.App.) involved the admissibility of evidence of other crimes committed while the defendant was on probation, allegedly in violation of the right of confrontation under the due process clause.
During the hearing, the only evidence offered in support of any of the alleged violations of the conditions of probation was the testimony of Detective Rosa Ortiz (“Ortiz”) who testified regarding two alleged robberies that she had investigated in October 2009. No charges were brought against Henderson in connection with one of these robberies, and the other robbery charge was nolle prosequied. During the Commonwealth's questioning of Ortiz, Henderson's counsel objected to her testimony regarding what the witnesses in both cases told her, as hearsay in violation of the Confrontation clause.
The Virginia court first explained the type of 'confrontation' one is entitled to under the 14th amendment. “The Sixth Amendment right is limited to ‘criminal prosecutions,’ and a revocation hearing is not a ‘criminal prosecution.’“ Dickens, 52 Va.App. at 417 n. 1, 663 S.E.2d at 550 n. 1 (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). “[B]oth the United States Supreme Court and this Court have ... held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution.” Dickens, 52 Va.App. at 417, 663 S.E.2d at 550 (citing Davis v. Commonwealth, 12 Va.App. 81, 84, 402 S.E.2d 684, 686 (1991)); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972).FN7 However, “[p]robation revocation, like parole revocation, ... does result in a loss of liberty. Accordingly ... a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer.” Scarpelli, 411 U.S. at 782; see Davis, 12 Va.App. at 84, 402 S.E.2d at 686. In Morrissey, the United States Supreme Court required that the following “minimum requirements of due process” for a revocation hearing be provided:

(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need to be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].
408 U.S. at 489 (emphasis added).


As stated by the Virginia court herein:

“Specifically, the United States Supreme Court has stated that in revocation hearings ‘formal procedures and rules of evidence are not employed,’ Scarpelli, 411 U.S. at 789, and that the process of revocation hearings ‘should be flexible enough to consider evidence ... that would not be admissible in an adversary criminal trial,’ Morrissey, 408 U.S. at 489.” Dickens, 52 Va.App. at 421, 663 S.E.2d at 552. “Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court's discretion,” id. (citing Morrissey, 408 U.S. at 489), if the circuit court “specifically finds good cause for not allowing confrontation,” Morrissey, 408 U.S. at 489 (emphasis added). Neither our Supreme Court nor this Court have squarely addressed what constitutes “good cause” for denial of the due process right of confrontation in the wake of the many changes wrought by Crawford v. Washington, 541 U.S. 36 (2004), and its progeny's construction of the Sixth Amendment Confrontation Clause.
The Virginia court found that:
“[i]t is entirely clear from the circumstances [in this case] that the interrogation[s were] part of an investigation into possibly criminal past conduct,” Davis, 547 U.S. at 829, and thus the primary purpose of the interrogations was “ ‘for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,’ “ Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 822). As stated, the challenged evidence in the present case is a detective's testimony that included, and was based on, information provided to her by witnesses during her investigation of two alleged robberies after they had occurred—“ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ “ Melendez–Diaz, 129 S.Ct. at 2531 (quoting Crawford, 541 U.S. at 52).

Having found that the witness' statements were testimonial, the Va. court then determined whether there was 'good cause' to suspend the right of confrontation. The Virginia court noted that, in determining whether to admit testimonial hearsay evidence under the “good cause” exception, other courts have adopted either of two methods in determining whether evidence admitted at a probation revocation hearing violated the limited due process right to confrontation and cross-examination. In Reyes v. State, 868 N.E.2d 438, 441 (Ind.2007), the Indiana Supreme Court explained both methods:

"In one, the trial court employs a balancing test that weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness. E.g., United States v. Martin, 382 F.3d 840, 844–45 (8th Cir.2004). In the balancing test, the State is required to show good cause for denying confrontation. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005). In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006). The requirement, found in Morrissey, 408 U.S. at 489, that the trial court find “good cause” before denying the right to confrontation plays an explicit role when a trial court performs a balancing test; however, this does not mean that Morrissey's good cause requirement is not addressed in the substantial trustworthiness test.... [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus.

Under the reliability test, “the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness,” and “the substantial trustworthiness test implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184–85 (Okla.Crim.App.2009). “Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is ‘demonstrably reliable.’ “ Turner, 278 Va. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). In Curtis v. Chester, 626 F.3d 540, 548 (10th Cir.2010), the court noted the following “[e]xamples of evidence possess[ed] recognized indicia of reliability”:

(1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4) statements corroborated by the releasee's own statements. See [ Scarpelli], 411 U.S. at 782 n. 5; Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir.1978) (evidence falling under the “business record” hearsay exception is reliable); Jackson, 323 F.3d at 130–31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).
Applying the reliability test, the Virginia Court found that the testimony was not so reliable so as to excuse confrontation:
"In turning to the facts in this case, Ortiz's hearsay testimony regarding both alleged crimes based solely on her conversations with the witnesses does not rise to the level of demonstrable reliability required for admissibility. The hearsay statements used to establish that Henderson violated the conditions of probation meet no firmly rooted exception to the hearsay rule that implies their inherent reliability. In addition, the record does not convey whether Ortiz was speaking purely from her memory in conveying the statements of the witnesses, or whether she was utilizing a police report or her notes thus further diminishing the reliability of her testimony. See Comito, 177 F.3d at 1171 (concluding that “[u]nsworn verbal allegations are, in general, the least reliable type of hearsay ...”); United States v. Pratt, 52 F.3d 671, 677 (7th Cir.1995) (holding the officer's hearsay testimony was reliable because it was consistent with the written statements of the victim in addition to other corroborating information).

Concluding, the court stated: "Because the out-of-court statements made to Ortiz were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by other evidence presented at the revocation hearing, the hearsay evidence offered by Ortiz does not rise to the level of being so demonstrably reliable that Henderson's limited right to confrontation in a probation revocation hearing should have been denied."
"[U]nder the balancing test, the court “weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Continuing, the court stated:
"Henderson's interest in confronting the witnesses was high in that the nature of the statements was “ ‘detailing the specific criminal wrongdoing of the defendant’ “ in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S .E.2d 406, 410 (2008)); see also McCormick, 54 F.3d at 222 (“It follows, therefore, that a releasee's interest in cross-examining a laboratory technician regarding a scientific fact is less than would be his interest, for example, in confronting a hearsay declarant regarding what the declarant may have seen. The truth of the former can be verified through methods of science; the truth of the later can best be verified through the rigor of cross-examination, conducted under the circumspect eye of the district court.”).
The court found against the State under the balancing test as well:
"In short, the record reflects no reason advanced by the Commonwealth as to what governmental interest was served by not producing the witnesses against Henderson. Thus, Henderson's interest in confronting the witnesses who spoke with Ortiz necessarily outweighed the interest of the Commonwealth in not producing them. In this case, the Commonwealth neither satisfied Henderson's due process right to confront the adverse witnesses against him nor adequately justified its failure to do so. Curtis, 626 F.3d at 548 (“Instead of hindering Curtis's ability to test the victim's statements, the government did as much as it could to facilitate it.”). Thus, the circuit court could not, and therefore did not, balance Henderson's interest in confronting the witnesses against him against any interest the Commonwealth may have had in denying Henderson that right.
As a result, the sentence following the revocation hearing was reversed, and the matter was remanded for a new hearing.


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OUI Appeal - Mass. Court Says Registry Records Violate Confrontation Clause

In our 3rd installment of a 3-day series on government records - admissibility and confrontation - is a case provided by Lloyd Boyer and Thomas Workman. In Commonwealth v. Parenteau, the Supreme Court of Massachusetts held that certain RMV records were admitted in violation of the Confrontation Clause. The document in question was actually a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007:

"The thrust of the defendant's argument is that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contends that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the ten-year revocation of his driver's license. Because he challenged such notice, the defendant continues, any attested document that served as evidence to the contrary was a testimonial statement that was subject to cross-examination. We agree."

The court discussed the basic confrontation clause prohibition:

"[T]he United States Supreme Court held that the out-of-court "[t]estimonial" statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court stated that the confrontation clause applies to "witnesses" against the accused, "in other words, those who 'bear testimony.' " Id. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828). " 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Crawford v. Washington, supra, quoting Webster, supra. Although the Supreme Court declined to articulate a "comprehensive definition" of "testimonial" statements, Crawford, supra at 68, it did describe various formulations of the "core class" of such statements:

"[ (1) ] ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[; (2) ] 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; or (3) ] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Explaining why this particular document violated the confrontation clause (as opposed to other RMV records), the court explained:

"We conclude that the registry certificate, like a certificate of drug analysis, is testimonial in nature. It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license revocation was mailed to the defendant on May 2, 2007, and, by inference, was received by him. The registry certificate was dated July 24, 2009, nearly two months after the criminal complaint for operating a motor vehicle after license revocation had issued against the defendant. As such, it plainly was made for use at the defendant's trial as prima facie evidence that he was notified of his license revocation, an essential element of the charged crime that the Commonwealth was required to prove. The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed--notice had been mailed on a specified date. See, e.g., State v. Jasper, 158 Wash.App. 518, 531-532 (2010) (affidavit from legal custodian of driving records attesting that records showed that defendant's driver's license was suspended on particular day was testimonial for confrontation clause purposes). The mere existence of a copy of the notice of license revocation in the registrar's files did not, in and of itself, constitute proof that it was mailed to the defendant. Because the certificate is a testimonial statement, its admission at trial in the absence of testimony from a registry witness violated the defendant's Sixth Amendment right to confrontation."

In rejecting the State's argument that the attestation was a business record, the court stated:

"[T]he Court pointed out in Melendez-Diaz, supra at 2538, that business records are not admissible at trial "if the regularly conducted business activity is the production of evidence for use at trial." See Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (holding that accident report provided by railroad company employee did not qualify as business record where essentially prepared for use "in litigating, not in railroading"). It followed, therefore, that a clerk "was permitted 'to certify to the correctness of a copy of a record kept in his office,' but had 'no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.' " Melendez-Diaz, supra at 2539, quoting State v. Wilson, 141 La. 404, 409 (1917). The Court in Melendez-Diaz further explained that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-- they are not testimonial." Melendez-Diaz, supra at 2539-2540. See Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5-7 (2010) (holding that admission in evidence of certified copies of docket sheets of defendant's prior convictions did not violate defendant's Sixth Amendment right to confrontation because such records are not testimonial). Thus, when determining the admissibility of a particular business record, a court must examine carefully the purpose for which it was created. See id. at 5.

"We agree with the Commonwealth that the actual notice of the defendant's license revocation, dated May 2, 2007, constitutes a business record of the registry, created and kept in the ordinary course of its affairs. [FN9] However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry. Here, however, the only evidence that the notice was mailed to the defendant is the registry certificate dated July 24, 2009, three months before trial, attesting to that fact. Such certificate was not created as part of the administration of the registry's regular business affairs, but for the purpose of establishing an essential fact at trial. Accordingly, the registry certificate did not constitute a nontestimonial business record."

Concluding that the admission of the certificate of service was improperly admitted, the court reversed the conviction and remanded for further proceedings.


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DUI Appeal - Ohio Says BMV Records Violate law

This is the second installment in a three-part DAD discussion of government records admissibility and/or confrontation clause issues. The case of State of Ohio v. Lee, 191 Ohio App.3d 219, 945 N.E.2d 595, 2010 -Ohio- 6276, was provided to DAD by NCDD member Jeff Meadows. Here, the defendant appealed his conviction based in part on the alleged erroneous admission of defendant's Bureau of Motor Vehicles (BMV) record (transcript) which was used to prove five prior OVI convictions. The appeals court agreed, and held that the records were not sufficiently 'certified' to allow them to be introduced under particular business records or public records exceptions. Since they were not so 'certified', the court held that their admission without live testimony to otherwise authenticate the documents violated the confrontation clause.
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:

"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."

In holding that the record was inadmissible, the court stated:

"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."

As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:

“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *

“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *

“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *

“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”

The appeals court explained why the document did not qualify as a self-authenticating document as follows:

"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."




Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.


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Illinois DUI Laws and Penalties - 2011 - Avvo.com

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Donald Ramsell Lawyer in Wheaton, Criminal Defense: DUI/DWI Attorney IL : Super Lawyers

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"The Change of Heart of Don Nichols" from IMinnesota Super Lawyers/I Wins SPJ's Page One Award : The Super Lawyers Blog

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OUI Appeal - Mass. Court Bars Probation Records Under Confrontation Clause

There appears to be a plethora of decisions recently involving the use and admission of certain records of prior convictions maintained by state agencies. Over the next 3 days, DAD will feature these decisions. Today's decision was provided by NCDD member Greg Oberhauser. In Commonwealth v. Ellis 10-P-419, the defendant was convicted of his fourth OUI offense.

The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.

On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:

"Certified court records of conviction are admissible under a hearsay exception for business records. Moreover, "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial" (citing to Melendez-Diaz, 129 S.Ct. at 2539-2540)

With regard to exhibit A-2, the probation record, the court held:

"[T]here was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832."

With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:

"The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles. * * * Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76")."

In affirming the conviction, the trial court concluded that:

"Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1."

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DUII Appeal - Oregon Allows Retrograde Extrapolation of Blood Alcohol to Prove Per Se

This case comes to DAD thanks to the watchful eyes of NCDD member Bruce Tarbox. In State of Oregon v. Eumana-Moranchel, the defendant filed a motion to exclude certain blood alcohol evidence, which was granted. The State then appealed. The defendant had blown 0.06 on the breath test. Shane Bessett, an expert in the field of alcohol absorption and dissipation, testified about the rate at which the human body absorbs and dissipates alcohol and the factors that influence absorption and dissipation. As part of that testimony, he explained Widmark's formula, a generally accepted method for calculating the rate of alcohol absorption and dissipation, and back extrapolation of BAC, a method to provide a range for a person's BAC prior to the time of the test. According to Bessett, Widmark's formula, the subject of many peer-reviewed studies and scholarly works, is used to determine the number of drinks consumed to reach a given BAC, and back extrapolation is used with Widmark's formula in instances of "any type of delay of time between time of test and time of driving." Back extrapolation of BAC relies on knowledge of a person's BAC at the time of a chemical test of the person's breath or blood.

The trial court entered an order excluding

"(1) Any testimony by state's expert witness referring to BAC content if that testimony would permit the jury to convict defendant based on his BAC.

"(2) Any testimony by state's expert witness that [defendant's] BAC at the time of the alleged stop was at least .08 percent."

On appeal, the appellate court reversed. First, they found that the expert could properly apply the principles of retrograde extrapolation, as it was accepted in the scientific community. Additionally, the court rejected the defendant's argument that a per se violation (or a presumptive inference) could only be proven by a direct alcohol measurement. They argued that previous cases involvogin HGN and cases without blood or breath tests specifically held that per se violations could only be proven by chemical analysis. The court distinguished those cases and stated:

"Here, by contrast, a chemical analysis of defendant's breath was performed and provided the basis for Bessett's opinion. Bessett's testimony simply would have provided a range for defendant's BAC at 3:08 a.m. when defendant was stopped, based on the result of that chemical analysis, which was concluded at 4:42 a.m. Unlike the HGN test in O'Key or the observations of physical indicia of impairment in Ross and Johnson, Bessett's testimony was derived, using scientific principles, from a chemical analysis of defendant's breath. That testimony was admissible."

Editor's note: Interestingly, the opinion does not reflect what factors, other than a single-point breath test, supported an ability to perform the extrapolation of the BAC to any point in time. As most practitioners would agree, a single-point alcohol test, without evidence as to the time of consumption (or other factors such as amount and type of alcohol, weight of the individual, food consumption, etc.) is usually insufficinet to arrive at an opinion based upon a reasonable degree of certainty, which is the necessary strength an opinion must have to be admissible.



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DWI Appeal - NJ Court Bars Suspension as Untimely

In Galeano v. new Jersey, Not Reported in A.3d, 2011 WL 2301104 (N.J.Super.A.D.), the New Jersey licensed defendant was arrested and convicted of DUI in Fliorida in 2003. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated. In July 2010, the New Jersey Motor Vehicle Commission received a report of conviction from Florida pursuant to the Interstate Driver License Compact. The Compact provides, among other things, that “[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee.” The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003.

On appeal, the Court reversed the suspension, finding that it was untimely:

The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, “the law infers that the contract will be performed within a reasonable time.” In re Estate of Yates, 368 N.J.Super. 226, 236 (App.Div.2004). “What constitutes a ‘reasonable time’ is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention.” Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).

Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to “[p]romote compliance” with laws governing the operation of motor vehicles. N.J.S.A. 39:5D–1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D–1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.

We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.

Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings “affect drivers in a serious way” because they “often threaten [ ]” a driver's ability “to earn a livelihood[.]” In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings “must meet those incidents of fairness” that underlie the constitutional right to due process. Ibid.

Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.


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DUI case against ex-dentist focuses on blood-alcohol evidence

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DWI Appeal - Mass. Court Rules On Confrontation and Hospital Alcohol Testing

This case comes to DAD thanks to Tom Workman. In Commonwealth v. --- N.E.2d ----, Mass.App.Ct. , 2011 WL 2279076 (Mass.App.Ct.) the court decided issues relating to the confrontation clause and the use of hospital records to prove up a blood alcohol test taken for medical purposes, and also the admissibility of a 911 call from an anonymous source under the confrontation clause.

The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.

At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.

In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:

“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... so far as such records relate to the treatment and medical history of such cases ... but nothing therein contained shall be admissible as evidence which has reference to the question of liability ”
The trial court first found that the records were admissible under the statute, and did not constitute "illegal references to liability.

Discussing the law in this area, the court stated:

"Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden “reference to the question of liability.” See Commonwealth v. Dargon, 457 Mass. 387, 394–395, 930 N.E.2d 707 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260–262 (2011). By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between “a conclusory fact central to the jury's inquiry” and “physical observations from which inculpatory inferences flow.” Id. at 395, 930 N.E.2d 707, quoting from Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 202, 509 N.E.2d 4 (1987).

The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”

As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:

"The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez–Diaz v. Massachusetts, supra at 2538–2539, the United States Supreme Court made an explicit exception for “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence.” Id. at 2538. The Court acknowledged that this type of affidavit is “prepared for use at trial,” but held that the confrontation clause does not apply because such an affidavit merely “certif[ies] to the correctness of a copy of a record” and does not “furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect.” Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409, 75 So. 95 (1917). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904, 923 N.E.2d 1062 (2010) (rejecting the defendant's argument that he suffered a deprivation of his confrontation rights because he did not have the opportunity to cross-examine the creator of an affidavit certifying records from the Registry of Motor Vehicles).

Holding that there was no confrontation clause violation, the court held that:

"It is clear that the certification form in the present case belongs within this categorical exception. The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident."

With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:

"Did the introduction of reference to statements from unknown 911 telephone callers deprive the defendant of his right to confrontation under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights? FN8 Those provisions protect a defendant against the admission of out-of-court testimonial statements. Out-of-court statements “primarily aimed at enabling ‘police assistance to meet an ongoing emergency’ ” are not testimonial. Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), quoting from Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In our circumstances, the 911 telephone callers were alerting the police to an ongoing threat posed by a conspicuously dangerous driver. They were urgent, and not testimonial, communications. See State v. Torelli, 103 Conn.App. 646, 658–662, 931 A.2d 337 (2007) (911 telephone calls reporting erratic driving are not testimonial, citing Davis v. Washington, supra at 822). No constitutional error occurred."

Since the court found that the admission of the evidence was lawful (or in some respects not discussed herein was 'harmless'), the court also denied the ineffective assistance claim and the conviction was affirmed.


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OWI Appeal - Out of State Reckless Counts as a Prior, Says Wisconsin

In State of Wisconsin v. Malsbury, Slip Copy, 2011 WL 2201190 (Wis.App.) the defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving. As stated by the Wisconsin court:
"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:

Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."

In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."

Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."


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

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

The high court found that the instruction contained three flaws:

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

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

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

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

Continuing, the court stated:

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

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

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

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DWI Appeal - Texas Felony Murder for DWI Does Not Require Mental State

In Adams v. Texas, --- S.W.3d ----, 2011 WL 2242607 (Tex.App.-Waco) the defendant was convicted of felony murder. Adams was driving on a farm-to-market road when he crossed over the center stripe and struck another vehicle, which resulted in the death of the driver of that vehicle. His blood alcohol content was .33 grams of alcohol per 100 milliliters of blood, which is more than four times the legal limit of .08 grams. Adams stipulated that he had been convicted of driving while intoxicated twice previously.

On appeal, Adams claimed, inter alia, that the felony murder statute violated federal due process because of the lack of a mens rea requirement, that it was improper to convict him of murder based on the lack of a mens rea, that the indictment should have been dismissed because he committed the offense of intoxication manslaughter which cannot be the basis of a felony murder conviction, and that a death resulting from intoxication is not murder but rather intoxication manslaughter.

Rejecting the above, the Texas court stated as follows:

"Adams does not cite any Texas authority showing that the Texas felony murder statute violates the federal constitutional provision regarding due process. Further, the cases he cites fail to show that his conviction for felony murder is unconstitutional on due process grounds because the charged offense lacked an element of culpable criminal intent or mens rea. The Supreme Court “has never articulated a general constitutional doctrine of mens rea ” and we have found no authority that the Supreme Court has ever held a state criminal statute unconstitutional for lack of scienter. Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (“The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.”); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (“We do not go with Blackstone in saying that a ‘vicious will’ is necessary to constitute a crime ... for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”); Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 54 L.Ed. 930 (1910) (“[P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.”); Lomax v. Thaler, No. H–09–0705, 2010 U.S. Dist. LEXIS 87683, 2010 WL 3362203, at 6 *4–5 (S.D.Tex. Aug. 25, 2010) (addressing the same issue).

The absence of scienter does not render a statute invalid if there is some indication of legislative intent, express or implied, to dispense with mens rea as an element of a crime. United States v. Staples, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (citations omitted). In Lomax, the Court of Criminal Appeals noted that, in enacting the Texas felony murder statute, there was “clear legislative intent to plainly dispense with a culpable mental state.” Lomax, 233 S.W.3d at 305 ( citing Aguirre v. State, 22 S.W.3d 463, 472–76 (Tex.Crim.App.1999)). The Court of Criminal Appeals observed that “the plain language of § 19.02(b)(3) also does not exclude felony DWI as an underlying felony for a felony-murder prosecution[.]” Id. at 309. Felony DWI, which does not require proof of a culpable mental state, may serve as the underlying felony in a felony murder prosecution. Id. at 309. The Court has since reaffirmed the ruling that a felony DWI may serve as the underlying offense in a felony murder conviction. See Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App.2008). None of the authority provided by Adams holds that felony murder cannot be charged in this manner or that his conviction is invalid for lack of the requisite mens rea as it relates to this offense. We overrule issues one, two, three, and four."


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DWI Appela - Does a Colorado DWAI Constitute a Prior for Felony Enhancement?

In State of Texas v. Christensen, Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas), the defendant appealed his felony conviction, claiming that a Colorado DWAI did not count as a 'prior' for enhancement purposes. In Colorado, there are 2 forms of drunk driving charges - DWAI and DUI.

Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).

DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).

DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."


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DUI Appeal - Alaska Decides Corpus Delicti Issues And Grants New Trial

In Langevin v. Alaska, --- P.3d ----, 2011 WL 2177299 (Alaska App.) the defendant was found guilty of DUI. The appeal presented three questions concerning the corpus delicti rule—the doctrine that a criminal conviction can not rest solely on the defendant's confession:

The first question is an issue of law: whether, under Alaska law, the trial judge or the jury is the one who decides whether the government's evidence satisfies the corpus delicti rule.
The second question is case-specific: whether, given the evidence presented at Langevin's trial, the State satisfied the corpus delicti requirement.
The third question is again a question of law: when the State fails to satisfy the corpus delicti rule, but when the State's evidence, taken as a whole ( i.e., including the defendant's confession), is sufficient to survive a motion for a judgment of acquittal, is the defendant's remedy outright dismissal of the criminal charge, or is it a retrial?

As to the first question, the court discussed the two basic approaches to a corpus delicti rule: the implicit element approach and the “evidentiary foundation” approach to corpus delicti.

Under the "evidentiary foundation" approach, the corpus delicti rule is a rule that defines the level of supporting evidence that the government must present if the government wishes to introduce the defendant's out-of-court confession for the truth of the matters asserted. Under this approach,

"[The] decision [regarding corpus delicti is] made by the trial judge before the case is submitted to the jury. The judge [assesses] the sufficiency of the State's evidence to prove the corpus delicti, and this decision [is] one of law—similar to the judge's assessment of the sufficiency of any other evidentiary foundation under Alaska Evidence Rule 104(a)-(b). Assuming the judge [rules] that the corpus delicti had been established, then, at the end of trial, the jury [considers] all of the evidence (including the defendant's confession) and [decides] whether the State [has] established each element of the charged crime beyond a reasonable doubt.
Dodds, 997 P.2d at 540."

Under the “implicit element” approach, if the trial judge rules that corpus delicti is satisfied, the jury would hear the defendant's confession, only to later be asked to set the confession to one side and determine whether the government's remaining evidence is sufficient to establish the corpus delicti. As the appellate court stated:

"One might doubt whether jurors, having heard the defendant's confession to a heinous crime, could dispassionately discharge this duty."

The appellate court then decided that the trial judge should make the determination as to the corpus delicti rule:

"In sum, Alaska cases have historically employed the “evidentiary foundation” approach to corpus delicti, and there are good reasons to question the “implicit elements” approach. Accordingly, we now hold that Alaska law follows the “evidentiary foundation” approach to corpus delicti. Under the “evidentiary foundation” approach to corpus delicti, the decision as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, not the jury. Therefore, Langevin's trial judge correctly denied Langevin's request to have the jury decide this matter."
The appeals court then reviewed the facts to determine whether the trial court properly found that the corpus delicti had been proven. The facts and testimony were summarized as follows:
In the early morning hours of November 27, 2008, officers of the Fairbanks police went to an apartment building in response to a report of a domestic dispute. This report was made by Langevin's girlfriend, Shari Kelly. Based on what the police discovered when they arrived, Langevin was charged with driving under the influence. Here is the State's evidence, presented in the light most favorable to the jury's verdict:

When the police arrived, they found Langevin in the hallway outside his apartment. Langevin told the officers that he had been standing outside for over an hour—that Kelly had taken his keys and had locked him out of their residence. This statement was verified when the police entered the residence and interviewed Kelly; they found the keys in her possession.

Langevin was visibly intoxicated; in fact, he conceded to the officers that he was “three sheets to the wind”. However, Langevin also stated several times that he had not had anything to drink since he arrived home. Rather, Langevin said, he and Kelly had been drinking at the Manchu Bar earlier that night.

According to Langevin, he and Kelly stayed at the bar until closing time (which, under Fairbanks law, would have been 3:00 a.m.), and then he started driving them home. In his statements to the police, Langevin gave two accounts of how his driving ended. At one point in the interview, Langevin indicated that he drove all the way home, at which point he stopped and said, “I'm not driving no more, period. I'm throwing the keys away.” But at another point in the interview, Langevin said that Kelly grabbed the keys while he was driving ( i.e., while the keys were in the ignition) and turned the truck off.

*2 Langevin pointed out the truck that he had driven. However, the police did not check the truck to see if the engine was warm or to see if there was any other indication that the truck had been recently driven.

Langevin's statement that he had not been drinking since he came home was corroborated by the fact that the officers could not see any containers of alcoholic beverages in Langevin's vicinity.

At Langevin's trial, the State did not call Kelly as a witness, nor did the State present any other witnesses who had actually seen Langevin driving the truck, or who had seen Langevin and Kelly at the Manchu Bar earlier that morning.

The appellate court found that these facts failed to prove the corpus delicti of the offense:

"Apart from the inferences that might be drawn from Langevin's admissions to the police, there was no independent evidence to establish why Langevin and Kelly had quarreled, or when she had taken his keys. While the independent evidence was consistent with Langevin's claim that Kelly took his keys after he drove home under the influence, the independent evidence was just as consistent with the supposition that Kelly took the keys from Langevin as they were leaving the Manchu Bar, to prevent Langevin from assuming physical control of the vehicle while he was under the influence. Indeed, the independent evidence was also just as consistent with the supposition that Langevin and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and then Kelly quarreled with Langevin and threw him out of the apartment—but kept his keys so that he would not be able to drive."
The court then had to decide whether the appropriate remedy was an acquittal or a new trial. In finding that a new trial, rather than acquittal, was appropriate, the court wrote:
"[U]nder Alaska's “evidentiary foundation” approach to corpus delicti, the corroborating evidence is not an element of the State's proof; rather, it is the foundation that must be laid to make the defendant's confession admissible in evidence.

The defendant may raise a corpus delicti objection when the government first offers the confession in evidence, or the defendant may wait until the government concludes its case-in-chief. But either way, the objection is of the same nature. A corpus delicti objection is not the same as an assertion that the government's evidence is legally insufficient to support a verdict in the government's favor. Rather, a corpus delicti objection is an assertion that the government should not be allowed, or should not have been allowed, to introduce the defendant's confession as part of its case.

Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defendant's remedy is a new trial. As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 40–42; 109 S.Ct. 285, 290–92; 102 L.Ed.2d 265 (1988), and as this Court held in Houston–Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992), a defendant who successfully contends on appeal that the trial judge should have excluded a portion of the government's evidence can not then argue that the government's remaining evidence was insufficient to withstand a motion for judgement of acquittal. Rather, the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial—even the evidence that was wrongfully admitted. See LaFave, Israel, and King, Criminal Procedure, § 25.4(c), Vol. 6, pp. 651–52.
As we noted earlier, had the trial judge sustained Langevin's corpus delicti objection, the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. And we can not know what additional evidence the State might have presented to corroborate Langevin's confession if the trial judge had ruled that the State's existing evidence was not sufficient for this purpose. See Houston–Hult, 843 P.2d at 1265 n. 2"
Therefore, the judgment was vacated and the cause was remanded for a new trial.


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