DUI Appeal - Indiana Says Can't Plead Guilty and Claim Innocence

In Wingham v. State of Indiana, 780 N.E.2d 1164, the defendant (who had previously pled guilty to OWI) filed a post-conviction petition alleging that his plea should not have been accepted, because he maintained his innocence during the plea. The appeals court herein agreed. The Court of Appeals held that trial court did not have adequate factual basis to accept guilty plea from defendant who denied being intoxicated at time of accident. The plea colloquy was as follows:

Court: Had you been drinking alcoholic beverages before that time?

Wingham: Yes.

Court: And were you intoxicated?

Wingham: No.

Court: Do you understand that one of the elements of this crime is that you were intoxicated at the time you were driving the vehicle and if you plead guilty today, you admit that you were intoxicated?

Wingham: Yes.

Court: Did the police officer offer you a breath test?

Wingham: Yes, sir.

Court: And was the result of the breath test .08?

Wingham: Yes, sir.

In holding the plea insufficient, the court stated:

"We hold, as a matter of law, that a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. To accept such a plea constitutes reversible error."


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DWI Appeal - Minnesota Says No to Wheelchair DWI

Many thanks to Doug Hazelton for locating this gem. In State Of Minnesota v. Brown, --- N.W.2d ----, 2011 WL 2302319 (Minn.App.), a physically disabled individual operating a motorized wheelchair was convicted of his 3rd DWI. The case involved the following stipulated facts:

(1) Brown is physically disabled and uses a battery-operated three-wheel Legend Pride Mobility Scooter (scooter) as a means of mobility to “experience life and complete his day to day necessities”; (2) the scooter has a maximum speed of 5.75 miles per hour; (3) Brown drove his scooter on Grand Rapids city sidewalks to a car dealership; (4) the car dealership contacted the city police department regarding a possibly intoxicated individual in their automobile display lot; (5) the city police arrived and arrested Brown for DWI; (6) Brown consented to a breath test and tested .17 for alcohol concentration; (7) Brown has a 2001 DWI conviction; (8) a driver's license is not required to operate the scooter, vehicle insurance is not required for the scooter, and the scooter cannot be registered at the Department of Public Safety in order to obtain vehicle license plates; (9) Minn.Stat. § 169.212, subd. 2(c) (2008) provides that

[a]n electric personal assistive mobility device may be operated on a roadway only:

(1) while making a direct crossing of a roadway in a marked or unmarked crosswalk;

(2) where no sidewalk is available;

(3) where a sidewalk is so obstructed as to prevent safe use;

(4) when so directed by a traffic control device or by a peace officer; or

(5) temporarily in order to gain access to a motor vehicle[;]

and (10) Grand Rapids does not have an ordinance prohibiting a person from public intoxicated in public or an ordinance prohibiting a person from consuming an alcoholic beverage in public.

Minnesota law defines a “Vehicle”, in relevant part, as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” However, Minnesota law also defines “motor vehicle,” in relevant part, as “every vehicle which is self-propelled,” excluding “an electric personal assistive mobility device.” Additionally, Minnesota law defines “pedestrian” as “any person afoot or in a wheelchair.” “Wheelchair” is defined as including “any manual or motorized wheelchair, scooter, tricycle, or similar device used by a disabled person as a substitute for walking.” In most states, one can be convicted of DUI?DWI on any vehicle, even if it is not a motor vehicle per se.

The appellate court found that a wheelchair used to assist a physically disabled person is simply a substitute device for walking, and as such did not constitute a vehicle, despite the definition to the contrary:
"It is plain that for purposes of traffic regulations contained in Chapter 169, Brown's scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian. See Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995) ( “[T]he mere circumstance, that [a person] ... propels himself or herself along by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.”


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DUII Appeal - Oregon Refuses to Suppress Test Refusal

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

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

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

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

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

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

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

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

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

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DWI Appeal - New York Court Says PBT Admissible

In People of New York v. Jones, --- N.Y.S.2d ----, 2011 WL 2764207 (N.Y.City Crim.Ct.), 2011 N.Y. Slip Op. 21250, the prosecution filed a motion in limine to introduce the PBT result of 0.09 Brac into evidence at trial to establish guilt. The trial court allowed the result, and the defendant was convicted. On appeal, the defendant claimed that the PBT was inadmissible because: 1) portable devices had previously been disapproved by New York courts @) the FST was not shown to be reliable and 3) portable breath tests are only considered valid as screening devices and not as full chemical tests.

Rejecting all of the above, the appeals court held that the Alco FST was admissible because 1) it was on the NHTSA Conforming Products List and therefore all such devices were deemed 'approved' under New York's breath testing regulations; 2) device was on Conforming Products List of Evidential Breath Alcohol Measurement Devices, and was approved for both "Mobile" and "Nonmobile" use; 3) inclusion of device on Conforming Products List of Evidential Breath Alcohol Measurement Devices in itself establishes general acceptance of reliability and accuracy of its results and therefore dispenses with need to present foundational evidence thereof through expert testimony; 4) NHTSA has approved the Alcosensor FST for not just screening, but as an evidential breath testing device.

Of additional significance was that the court held that the fact that the officer who administered blood alcohol test may not have maintained continuous observation of defendant for 15 minutes prior to test did not render its results inadmissible, but went only to weight to be afforded the results.

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DUI Appeal - Attempt DUI Does Not Exist in Kansas

In State of Kansas v. Perkins, --- P.3d ----, 2011 WL 2732597 (Kan.App.), the Supreme Court of Kansas was asked to determine whether the definition of attempt found in the criminal code should be applied to a charge of "operating or attempting to operate a vehicle while under the influence of alcohol to the degree he could not do so safely." At trial, Perkins testified that the passenger, his stepson, had been driving the entire time and that the two of them switched places after parking the truck. According to Perkins, they had pulled over to clean up vomit he had deposited in the truck cab. In the course of doing so, they had gotten out of the truck, and Perkins had then sat down in the driver's seat. Perkins told the jury he didn't have much recollection of Trooper Henrickson or their interaction. Perkins' stepson testified that he had driven the pickup and parked on the shoulder.

Under K.S.A. 21–3301, an attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” Perkins reasons that the jury concluded he drove the pickup truck and then parked on the shoulder of the highway. In turn, he could not have been guilty of an “attempt” to drive because he neither “failed” in that effort nor was he “prevented or intercepted” before he could and actually did drive.

Perkins argued there was insufficient evidence to support a conviction for attempting to operate or drive the pickup truck. The lynchpin of Perkins' legal argument was how he defined an attempt under the DUI statute. There is no language in K.S.A.2008 Supp. 8–1567 that supplies a specific definition. Perkins submitted that the failure to define "attempt" within the DUI statute allowed him to import the definition of attempt from the provision of the Kansas Criminal Code used to establish attempts as a distinct type of crime, K.S.A. 21–3301.
In rejectiong the defendant's argument, the Supreme Court stated:

"Applying the requirements of K.S.A. 21–3301 to an attempted DUI would undercut the purposes of K.S.A.2008 Supp. 8–1567. Driving under the influence, like many traffic offenses, falls in the no-bad-intent category. State v. Martinez, 268 Kan. 21, Syl. ¶ 3, 988 P.2d 735 (1999). If K.S.A. 21–3301 were to control, however, an attempted DUI would require proof of a specific intent to drive while drunk. Nothing indicates the legislature had that in mind. It would be a peculiar thought: The completed offense of DUI would require no criminal or bad intent, but an attempted DUI would require a specific state of mind to perform the prohibited act of driving drunk.

In turn, voluntary intoxication would be a defense to an attempted DUI if it negated that specific intent. What that would mean is someone really drunk—too drunk to get a car in gear, for example—could beat a charge of attempting to drive under the influence precisely because of his or her intoxication. Such a result might be the stuff of law school debate, but attributing it to the legislature is kind of loopy. And the courts refrain from seeing loopiness in legislative handiwork unless they have no other choice. State v. Barnes, 275 Kan. 364, Syl. ¶ 2, 64 P.3d 405 (2003) (“The legislature is presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results.”).

There is another, independent reason the legislature did not intend to incorporate the criminal attempts statute into the DUI statute. The inclusion of the phrase “attempt to operate” in the definition of the DUI offense in K.S.A.2008 Supp. 8–1567 would have been unnecessary and, thus, superfluous had the legislature meant the criminal attempts statute to govern. The provisions of K.S.A. 21–3301 apply to “the [failed] perpetration of a crime.” In turn, a “crime” includes an offense “created by statute other than in this code.” K.S.A. 21–3102(2). And a crime “is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine ... is authorized.” K.S.A. 21–3105. Read in tandem, K.S.A. 21–3102(2) and K.S.A. 21–3105 establish the offense of DUI, as set forth in K.S.A.2008 Supp. 8–1567, as a “crime.”

Had K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI. Accordingly, the legislative decision to mention attempts specifically and to treat them identically to the completed crime must have been undertaken to change the default rule that would otherwise apply K.S.A. 21–3301 for that purpose. As we have said, the reference to attempts in K.S.A.2008 Supp. 8–1567 would be wholly unnecessary and entirely vestigial if the legislature wanted K.S.A. 21–3301 to control. The accepted rules of statutory construction run counter to that result. See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005); State v. Van Hoet, 277 Kan. 815, 826–27, 89 P.3d 606 (2004) (“The court should avoid interpreting a statute in such a way that part of it becomes surplusage.”).

We, therefore, believe the legislature both meant to act in a reasonable way when it referred to an attempt to operate a vehicle as being included in the offense of DUI outlined in K.S.A.2008 Supp. 8–1567 and wasn't simply littering the statute with extra words. Accordingly, we reject Perkins' argument that the nature and scope of an attempted DUI is controlled by K.S.A. 21–3301.

Thus, the conviction was affirmed.

Editor's Note: Unlike, Kansas, many other states do not include the word "attempt" in their specific DUI/DWI statute, although they do have such an offense in the criminal code.. According to Kansas' position, that would create a loophole - "[h]ad K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI" said the Supremes - keep this opinion available on your next felony. It could get dropped to a misdemeanor if the "attempt" defense applies.....


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OWI Appeal - Driving Too Slow or Stopping Is Grounds For Seizure Says Wisconsin

When it comes to the 4th amendment, it seems that merely driving a car is tantamount to reasonable suspicion to stop it in Wisconsin. Well not exactly, but close enough. In State of Wisconsin v. Slip Copy, 2011 WL 2899066 (Wis.App.), the officer observed a truck that drew his attention. The truck drew his attention because it was traveling “at an extremely low rate of speed, slowing to an almost near stop” at an intersection at which there were no signs to stop or yield. The truck then accelerated and reached a second intersection one block away, which also had no stop or yield signs, despite which the truck came “to a complete stop.” So far as the officer could observe, there was no other traffic or other reason for the driver of the truck to have slowed to a near stop at the first intersection or to have come to a complete stop at the second intersection.'

The officer testified that he became suspicious that the driver was impaired based on the following combined factors: the time of night (namely, “the early morning hours[,] right around bar time”), the extreme slowing at the first unmarked intersection, and the complete stop at the second unmarked intersection. On that basis, the officer decided to make a traffic stop to investigate further.

The appeals court herein found the stop legal. In rejecting the argument that the stop was unlawful since the driver had done nothing wrong, the court stated:

"These arguments ignore the rule that “police officers are not required to rule out the possibility of innocent behavior before initiating a brief stop.” (citation) “[S]uspicious conduct by its very nature is ambiguous, and the [principal] function of the investigative stop is to quickly resolve that ambiguity.” Id. “Therefore, if any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry.” Id. In other words, a Terry stop allows police to obtain more information, through temporary “seizure,” regarding potential alternative innocent explanations for suspicious behavior; the potential for discovery of innocent explanations does not foreclose the stop. It is often going to be the case that aberrant driving behavior could have resulted from one or more causes that do not represent a violation of any statute or ordinance. However, where a reasonable suspicion arises from a pattern of aberrant driving, such as that exhibited by Burch under these circumstances, police are permitted to infringe on the right of the driver to be free of stops and temporary detentions so that police can attempt to resolve the ambiguity by detaining the driver for that limited purpose in a limited manner."

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DUI Appeal - North Dakota Ignores Mandatory Observation Period

In State of North Dakota v. Stroh, --- N.W.2d ----, 2011 WL 2698613 (N.D.), 2011 ND 139, the defendant was convicted of DUI after the trial court admitted the results of an Intoxilyzer test into evidence. On appeal, Stroh argued that the officer had failed to ascertain the 20–minute waiting period before administering the test, during which time the test subject may not have anything to eat, drink, or smoke.

North Dakota's breath testing law includes:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director's designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director's designee.(Emphasis added.)
* * *
Fair administration of an Intoxilyzer test may be established by proof the State Toxicologist's approved method for conducting the test has been “scrupulously followed.” Steinmeyer, at ¶ 10. “However, ‘scrupulous' compliance does not mean ‘hypertechnical’ compliance.” Id. (internal quotation omitted).

The officer admitted that he left the defendant alone twice during the 20 minute observation period. Stroh asserted the State did not establish “scrupulous compliance” with the Toxicologist's approved method for conducting the test because the evidence showed Stroh was handcuffed in front of his body and that Stroh was in possession of a can of chewing tobacco.

The State asserted, however, that the district court as fact-finder could reasonably infer that Stroh did not have anything to eat, drink, or smoke during the 20–minute waiting period. The State contends the court did not abuse its discretion because its decision was the product of a rational mental process and the court found that the 20–minute waiting period was complied with. The State contended that although there was testimony Stroh possessed a can of chewing tobacco when he was patted down, there was no evidence he consumed the tobacco, even though Stroh testified at trial.

The officer unequivocally testified on direct that he had ascertained the 20–minute waiting period before giving the first breath sample; that Stroh did not have anything in his mouth; that he did not observe Stroh eat, drink, or smoke anything; and further that Stroh did not belch, burp, or vomit, and gave a good sample. During trial, however, the video recording of the encounter with Stroh from the officer's squad car was also admitted into evidence. Although the officer testified he ascertained the 20–minute waiting period by observing Stroh, Stroh's counsel on cross-examination established the officer had actually left Stroh unattended in his car at least twice.

Concluding that despite this evidence the result was properly admitted, the court stated:

"Under these facts and circumstances, we conclude the district court did not abuse its discretion in deciding the State established the officer scrupulously complied with the 20–minute waiting period. Although Stroh testified at trial, Stroh did not testify that he had in fact put any chewing tobacco in his mouth before the test, or during the periods he was left unattended in the squad car. The officer, however, testified that he ascertained the 20–minute waiting period and that prior to the test, Stroh did not have anything in his mouth. This left the inference to be drawn by the district court, which in essence concluded that Stroh had failed to rebut the evidence that the officer ascertained the 20–minute waiting period.

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Glen Ellyn man sues Naperville, claims false DUI arrest - Chicago Sun-Times

Glen Ellyn man sues Naperville, claims false DUI arrest - Chicago Sun-Times Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Early Release Of Drunk Motorist Could Make City Liable

In Milanese v. City of Boca Raton, --- So.3d ----, 2011 WL 2848628 (Fla.App. 4 Dist.) the City was sued after they released an intoxicated motorist from jail and for releasing him into a "zone of danger". Here, he was released while still intoxicated, and he then passed out across a set of railroad tracks. The train did not stop on time. His BAC at death was allegedly .199.

The majority found that the allegations of the complaint raised a legitimate claim that the City violated the decedent's due process right to reasonable care. Citing to previous caselaw, the court stated:

“There may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; but it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability. But further, if the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility.”

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DUI Appeal - North Dakota Says Informant 911 Call Unreliable

In Gabel v. North Dakota, --- N.W.2d ----, 2011 WL 2652253 (N.D.) a dispatcher at the Stutsman County Sheriff's Office sent a radio message to Officer Elizabeth Kapp stating that Chad Steele had reported a vehicle traveling on Highway 281 south of Jamestown that would speed up and slow down, not allowing Steele to pass. Steele also reported the license plate of the vehicle was “JAYBIRD.” Steele continued to follow the driver relaying his location to the dispatcher on his cell phone. Steele's information was relayed from the dispatcher to Officer Kapp. The record does not reflect how many times Steele attempted to pass, what the road conditions were, how long Steele had been following Gabel, or at what speed Steele was attempting to pass Gabel's vehicle.

Officer Kapp passed Steele's vehicle and located Gabel's vehicle. Officer Kapp measured the speed of Gabel's vehicle at 47 miles per hour in a 65 mile per hour zone. There was no posted minimum speed limit in the area. After determining the vehicle's speed, Officer Kapp stopped Gabel's vehicle based on the information she received from the dispatcher. Officer Kapp did not report independently viewing a traffic violation. Her testimony indicates she did not observe erratic or suspicious driving. Officer Kapp testified she had not noticed Gabel cross the center line, drive on the shoulder, or commit any moving violation. Officer Kapp stated the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass.

Officer Kapp testified she knew the informant in her “professional capacity”; she believed he had a criminal record.

The North Dakota opinion commented on the informant's reliability as follows:

"We have allowed tips from known criminal informants to justify a stop provided the tip is otherwise reliable. State v. Anderson, 2006 ND 44, ¶¶ 13, 17, 710 N.W.2d 392. “As a general rule, the lesser the quality or reliability of the tip, the greater the quantity of information required to raise a reasonable suspicion.” Id. at ¶ 13 (quoting Miller, 510 N.W.2d at 640). “In evaluating the factual basis for an investigatory stop, we must consider the totality of the circumstances, including the quantity, or content, and quality, or degree of reliability, of the officer's information.” Id. Here, the content and quality of the officer's information when she made the stop was insufficient to justify a stop of Gabel's vehicle. The officer was only able to corroborate the location of the vehicle and its license plate but unable to corroborate any illegal activity or other suspicious activity that would confirm the reliability of Steele's tip. There is nothing from the record in this case that ensures the informant was reliable. Officer Kapp did not testify about the informant's reliability. Given her testimony, there is nothing in this record to suggest Officer Kapp regarded Steele as other than a member of the “criminal milieu.” Members of the “criminal milieu” must have their reliability established. Id. at ¶ 15. However, we need not determine the reliability of Steele, because, even assuming he was a reliable informant, his tip of a vehicle speeding up and slowing down, not allowing a car to pass is insufficient to support a traffic stop absent corroboration of otherwise illegal activity or suspicious conduct. Driving on a highway slightly below the speed limit is not sufficiently suspicious to support a traffic stop."

In concluding that the stop was illegal, the North Dakota Supreme Court stated:

"Officer Kapp testified she did not observe a traffic violation. The sole reason Officer Kapp gave for justifying the stop was based on Steele's report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass. Officer Kapp testified that this unverified report provided her with sufficient information that Gabel was an impediment to traffic. Officer Kapp did not independently observe or corroborate Gabel speeding up and slowing down nor did she view Gabel impede the ability of others to pass his vehicle. Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the “possible reckless driver or drunk driver” held to be insufficient to establish a reasonable and articulable suspicion in Anderson, 2005 ND 97, ¶ 21, 696 N.W.2d 918.

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DUI Appeal - defense of unconsciousness as a result of voluntary intoxication

In People of California v. Ferguson, --- Cal.Rptr.3d ----, 2011 WL 1589091 (Cal.App. 4 Dist.) the defendant appealed a DUI causing great bodily harm and a 2d degree murder conviction alleging inter alia that: (1) the trial court erred in denying his request for an instruction on the partial defense of unconsciousness as a result of voluntary intoxication (CALCRIM No. 626), which could have reduced the offense to involuntary manslaughter; (2) evidence of data obtained from his car's event data recorder was improperly admitted.

On February 22, 2008, Michael and Grace Sein were driving home around 11 p.m. They were stopped at a red light at the intersection of MacArthur and Jamboree in Newport Beach, when they were rear-ended by a car driven by Ferguson, a Marine stationed at Camp Pendelton. Michael Sein was killed; Grace Sein was severely injured. Ferguson suffered a broken ankle and some internal injuries. A witness to the accident testified that immediately after the collision, Ferguson looked “normal” but seemed disoriented and confused “like a person [who] was just in an accident.”
The prosecution's accident reconstruction expert opined Ferguson was driving at about 75 miles per hour at the time of impact based on the injuries and the condition and placement of the vehicles. The event data recorder recovered from Ferguson's vehicle showed his car, a Dodge Caliber, was traveling at 75 miles per hour and accelerating when he struck the Seins's car, an Aston–Martin, although acceleration had stopped one-tenth of a second before impact.

Ferguson claimed he drank only two beers that night. Ferguson told Zeeman he was driving to his home in Santa Ana from Camp Pendleton and at Zeeman's request gave a detailed description of the route he would normally drive to get there. Ferguson appeared confused when Zeeman told him he had been driving in the wrong direction from his home.

A blood sample was taken from Ferguson about three hours after the accident. His blood alcohol level measured .12 percent. By extrapolation, Ferguson would have had between a .16 and .17 percent blood alcohol concentration at the time of the accident, or if he was a “tolerant drinker,” it could have been as high as .21 percent.

The defense's evidence included the fact that the defendant suffered PTSD which caused him to self-medicate. He argued that he could use the partial defense of 'voluntary intoxication to the point of unconsciousness' as a basis to obtain a lesser-included instruction for involuntary manslaughter. Rejecting this argument the court stated:

"Here, there was insufficient evidence to support an instruction on unconsciousness as a partial defense. An unconscious act, as defined “within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional.” (citations omitted) Unconsciousness “need not mean that the actor lies still and unresponsive: section 26 describes as ‘[in]capable of committing crimes ...[p]ersons who committed the act ... without being conscious thereof.’ (Italics added.) Thus, unconsciousness ‘ “can exist ... where the subject physically acts in fact but is not, at the time, conscious of acting.” ‘ [Citations.]” ( Ochoa, supra, 19 Cal.4th at pp. 423–424.)

* * * *
"[T]he trial court did not err by refusing to instruct on unconsciousness due to voluntary intoxication. The uncontroverted facts were that Ferguson was aware he was intoxicated, was attempting to sober up, and was focused on getting himself home. He was capable of devising plans to dupe his fellow Marine into retrieving his car keys. He drove a substantial distance prior to the accident without apparent incident. There was insufficient evidence “deserving of consideration that [he] was unconscious due to voluntary intoxication” ( Halvorsen, supra, 42 Cal.4th at p. 418), when the accident occurred."

As far as the admissibility of the evidence from the EDR (event data recorder) was concerned, Ferguson argued that Vehicle Code section 9951, subdivision (d), precluded admission of the information obtained from an event data recorder in a judicial proceeding. Vehicle Code section 9951 requires the manufacturer of a vehicle equipped with recording devices commonly called “ ‘event data recorders (EDR)’ or ‘sensing and diagnostic modules (SDM),’ “ to disclose its existence in the owner's manual. (Veh.Code, § 9951, subd. (a).) Vehicle Code section 9951, subdivision (c), provides, “Data described in subdivision (b) [FN4] that is recorded on a recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except under one of the following circumstances: [¶] (1) The registered owner of the motor vehicle consents to the retrieval of the information. [¶] (2) In response to an order of a court having jurisdiction to issue the order. [¶] (3) For the purpose of improving motor vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, and the identity of the registered owner or driver is not disclosed in connection with that retrieved data.... [¶] (4) The data is retrieved by a licensed new motor vehicle dealer, or by an automotive technician ... for the purpose of diagnosing, servicing, or repairing the motor vehicle.” (Italics added.) Vehicle Code section 9951, subdivision (d), upon which Ferguson relies provides, “A person authorized to download or otherwise retrieve data from a recording device pursuant to paragraph (3) of subdivision (c), may not release that data, except to share the data among the motor vehicle safety and medical research communities to advance motor vehicle safety, and only if the identity of the registered owner or driver is not disclosed.” (Italics added.)

The court stated that "the issue is not whether Vehicle Code section 9951 permits admission of EDR data into evidence—as already noted, all relevant evidence is admissible unless otherwise provided by statute ( Evid.Code, § 351)—the issue is whether the statute prohibits admission of EDR evidence. And in arguing Vehicle Code section 9951, subdivision (d), precludes use of EDR data in judicial proceedings, Ferguson has taken its language out of context."

Holding that the statute did not exclude the evidence, the court upheld its admissibility, noting that the information was obtained via a search warrant.

The defendant's other contentions were similarly rejected, and the conviction upheld.

Editor's note: The court did mention that there were 4th amendment protections regarding the EDR data:

"[I]n People v. Xinos (2011) 192 Cal.App.4th 637 ( Xinos ), is misplaced. Xinos was a Fourth Amendment case. It held “a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's [sensing and diagnostic module (SDM) ].” ( Id. at p. 659.) The court concluded the warrantless downloading of the SDM's digital data, a year after the accident and unsupported by probable cause, violated defendant's Fourth Amendment rights. ( Id. at pp. 659–660.) Accordingly, it held the trial court erred by denying defendant's motion to suppress. ( Id. at p. 664.) "

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DUI Appeal - Illinois Says All Cars That Stop On Shoulder (Even Temporarily) Are Legally Subject to Police Seizures

In People of Illinois v. Dittmar, Nos. 2–09–1112, 2–09–1304, June 15, 2011, Appeal from the Circuit Court of Stephenson County, the parties presnted the following evidence in the police report by stipulation:



[I]f called as a witness, Stephenson County sheriff's deputy Shan MacAdam, the arresting officer, would testify as follows:

“While on routine patrol[,] I was traveling north bound on Route 26 north of McConnell Road when I observed an oncoming south bound vehicle. The vehicle was traveling at a slow speed, [and] the right turn signal was activated a very short distance before the vehicles met. The vehicle, a white Chevrolet Cavalier convertible[,] had slowed greatly and was pulling to the shoulder of the roadway as I passed. The squad [car] was also traveling slowly[,] and I observed a white hat on the head of the driver.



After passing the vehicle[,] I turned the squad [car] around to check if the vehicle was having mechanical problems, or if there were problems with the occupants. As I approached the rear of the car[,] I observed the subject with the white hat walking from the driver door around the rear of the car and to the right passenger door. Another subject from the right side of the car was walking around the rear of the car to the driver door. Both doors were open as they changed sides of the car.



The subject wearing the white hat got into the passenger seat, while a female stood next to the open driver door as she watched the squad [car] stop behind her. She got into the driver seat as I stopped directly behind the white Chevrolet, bearing TX08/777CCJ.



I approached the driver door, which was still open, and immediately noted the strong odor of an alcoholic beverage flowing from the interior.”

The video displayed that, as he pulled onto the shoulder behind defendant's car, the officer activated his overhead emergency lights and gave the dispatcher the make, model, and license plate number of the car.



Reviewing Illinois law, the court stated as follows:



In People v. McDonough, 239 Ill.2d 260, 272 (2010), the supreme court identified a two-prong test for judging whether an encounter qualifies as a community-caretaking endeavor:

“First, law enforcement officers must be performing some function other than the investigation of a crime. [Citations.] In making this determination, a court views the officer's actions objectively. [Citation.] Second, the search or seizure must be reasonable because it was undertaken to protect the safety of the general public. [Citation.] ‘Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.’ [Citation.] The court must balance a citizen's interest in going about his or her business free from police interference against the public's interest in having police officers perform services in addition to strictly law enforcement.”

The appeals court further explained that a community caretaking function simply because there is a seizure:



As the supreme court in Luedemann clarified, the community-caretaking doctrine justifies not consensual encounters—which need no justification under the constitution—but seizures. See Luedemann, 222 Ill.2d at 548 (“It is clear, then, that the ‘community caretaking’ doctrine is analytically distinct from consensual encounters and is invoked to validate a search or seizure as reasonable under the fourth amendment.”). The error that Luedemann corrected was at one time prevalent in the appellate court, including this district. For instance, our decision in Lee, which defendant cited below and continues to cite on appeal, committed the error. See Lee, 291 Ill.App.3d at 54 (“Once a seizure has occurred, an officer is not acting in his community caretak[ing] function, even if his original intention had nothing to do with detection or investigation of a crime.).” Lee's conception of community-caretaking encounters was abandoned by this district even before Luedemann was decided in 2006. See People v. Mitchell, 355 Ill.App.3d 1030, 1033 (2nd Dist.2005) (noting that the community-caretaking doctrine “has nothing to do with consensual encounters; for, by their very nature, consensual encounters need no justification. Treating it as synonymous with consensual encounters deprives the doctrine of any analytical content.”).



The court stated the following test: The question * * * is not how regularly the police conduct in question occurs as part of crime detection, investigation, or prevention, but whether the conduct is, in the context at issue, so lacking an objectively grounded public-safety purpose that the officer could not be “performing some function other than the investigation of a crime” ( McDonough, 239 Ill.2d at 272).



Concluding that this case was a proper community caretaking seizure, the court stated:



"We recognize that, unlike in the cases cited by the State, MacAdam did not come upon a vehicle already at rest, without knowledge of how long it had been there ( McDonough, Laake ), or have specific information that the driver might be impaired or in distress ( Robinson ). The vehicle came to a stop while MacAdam observed it, and he had no specific information about the travelers aside from what he saw. Nonetheless, MacAdam had reason to believe that the occupants might need assistance. Even if MacAdam could not be certain that there was an emergency, his lack of certainty had to be weighed against the likelihood that, if he did not stop to inquire, the travelers would not receive assistance for some time, given the rural location. MacAdam had also to consider the potential hazards to the travelers from passing traffic, given that no lights were activated on their car despite the dim ambient light.



"The public interest served by MacAdam's actions more than outweighed the intrusion. See McDonough, 239 Ill.2d at 272 (court must balance a citizen's interest in being free from police intrusion against the public interest in having police perform services in addition to crime detection and prevention); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (“[T]he court must balance the public need and interest against the degree and nature of the intrusion upon the citizen's privacy.”). The video of the stop shows that approximately 36 seconds elapsed between MacAdam's activating his emergency lights and reaching the driver's door of the car—at which point, defendant does not contest, MacAdam made observations that justified further detention of defendant, resulting ultimately in his arrest. There was an ample public-safety justification for those 36 seconds."


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DWI Appeal - Prosecutor's Document Alteration Nets 1 Year Suspension

In Matter of Danielle Muscatello, --- N.Y.S.2d ----, 2011 WL 2624002 (N.Y.A.D. 2 Dept.), 2011 N.Y. Slip Op. 05812, The respondent was employed as an Assistant District Attorney with the Office of the District Attorney for Kings County. On November 5, 2009, she was presenting evidence to a Kings County Grand Jury in relation to a defendant who had been arrested on October 18, 2009, for driving while intoxicated. As part of the presentation, she moved into evidence a New York City Police Department form known as the Chemical Test Analysis (hereinafter the Form). The Form is an official document that reports, inter alia, the defendant's blood alcohol content at the time the breathalyzer test is performed. The police officer who administered the test is required to certify on the Form that its contents are true, accurate, and complete. After moving the Form into evidence, the respondent realized that it was incomplete, in that the space where the number reflecting the defendant's blood alcohol content should have been, was blank. Nonetheless, the respondent told the Grand Jury that the form reflected a blood alcohol content of .08%, a fact she knew from other evidence previously introduced before the Grand Jury.

On or about November 12, 2009, the respondent subpoenaed the police officer who had prepared the Form. On that date, knowing that her supervisor was out of the office, the respondent entered and searched that office for the Form. The respondent found the Form in her supervisor's briefcase and removed it. She then directed the police officer to fill in the blank to reflect the defendant's blood alcohol content, and returned the altered Form to her supervisor's briefcase without her supervisor's knowledge.

On appeal in this disciplinary matter, the respondent asked the Court to take into consideration the fact that she was a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational. Further, she maintained that she has been punished enough as she was terminated from her position as an Assistant District Attorney, which she considered to be an ideal job. She is deeply remorseful and ashamed of her misconduct. Numerous character letters were submitted on the respondent's behalf, all of which attested to her reputation for honesty and integrity. The respondent's present employer, who hired her after full disclosure was made to him of the grand jury incident, indicated in a letter that the respondent “consistently has expressed remorse ... and displayed a high standard of ethical and moral character during her employment with me at my firm.”

The Court found that a 1 year suspension was appropriate. " Notwithstanding the respondent's candor, youth, remorse, and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for a period of one year."


Just as many prosecutors have said about our clients: people are always sorry when they get caught. But the law says they should think about their actions before they commit the act.


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DWI Appeal - Texas Says Cell Phone Use Can't Prove Negligent Homicide Case

In Montgomery v. State of texas, --- S.W.3d ----, 2011 WL 2150230 (Tex.App.-Hous. (14 Dist.)) the defendant was convicted of criminally negligent homicide after she made an unsafe lane change while using her cellphone. Her lane change occurred while another vehicle was sppeding behind her. By changing lanes, she was rear-ended and caused to hit another vehicle, which then resulted in the death of a passenger. in reversing the conviction, the court stated:

"In Texas, a person commits the offense of criminally negligent homicide if he or she (1) causes the death of an individual, (2) ought to have been aware that his or her conduct created a substantial and unjustifiable risk of death, and (3) failed to perceive the risk, which is of such a nature and degree that the failure constituted a gross deviation from the standard of care an ordinary person would have exercised under the circumstances. (citations omitted) Accordingly, in order to convict appellant of criminal negligence, the State was required to prove not merely that she did something a person of ordinary prudence would not have done, but that her failure to perceive that a substantial risk of death would result from her conduct grossly deviated from an ordinary standard of care."

In discussing the application of the law to the facts here, the court stated:

"As this court observed in Tello v. State, when courts in Texas have addressed the level of evidence necessary to convict a defendant of criminally negligent homicide resulting from vehicle-related accidents, “speeding, racing, and intoxication often are contributing factors.” (citation omitted) None of these factors is present in the present case."
* * *
At trial in the present case, the State presented evidence of appellant's use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas law: making an unsafe lane change.FN5 However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant's negligence: cell phone usage.FN6 The State analogized using a cell phone while driving to driving while intoxicated, a moving violation subject to substantial criminal penalties. See Tex. Penal Code §§ 49.04, 49.09. However, in doing so, the State could be seen as “legislating through prosecution,” and, by continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. FN7 Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas."

Concluding that the general public lacks knowledge about the dangers of cell phone driving, the court in reversing the convictions stated as follows:

"We do not minimize the fact that Chance Wilcox tragically died in this accident. But Texas law makes clear that the circumstances for assessing criminally negligent homicide are judged from the defendant's perspective at the time of his or her actions, not from hindsight. * * * Supported by additional scientific research and increased public awareness, Texans may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident."

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DWI Appeal of the Day (DAD) - Anonymous Tip Insufficient for Stop of Driver

In Martinez v. State of Texas --- S.W.3d ----, 2011 WL 2555712 (Tex.Crim.App.) the state charged appellant with driving while intoxicated (DWI) and possession of marijuana. The facts were reported as follows:

"At 10:55 p.m., the police dispatcher radioed that an anonymous caller reported that a male driving a blue Ford pickup truck stopped at the intersection of 17th and Main Streets, put two bicycles into the back of the truck, and drove away westbound. Hurley was on patrol in the general area and spotted a green Ford F–250 truck that “looked like it was blue” FN2 approximately three quarters of a mile away from the site of the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver's side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, the truck's driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes."
The trial court denied the motion to suppress. On appeal, the appellate court stated that:

"At a suppression hearing involving an investigatory stop, the state need not establish that a crime occurred prior to the stop, but it must elicit testimony showing sufficient facts to prove that reasonable suspicion existed that a particular person has engaged in, or soon will be engaging in, criminal activity."

When it comes to anonymous tips, this court stated the law applicable as follows:

"When an officer's suspicion of criminal activity arises from an anonymous caller rather than from the officer's own observations, the tip seldom provides reasonable suspicion for an investigatory stop.FN12 The tip lacks “sufficient indicia of reliability,” such as a suitable level of police corroboration,FN13 to establish the “requisite quantum of suspicion.” FN14 An inverse relationship exists between the reliability of the informant and the amount of corroborated information required to justify the police intrusion; the less reliable the tip, the more information is needed .FN15 However, when the informant provides self-identifying information that makes himself accountable for the intervention, the degree of reliability significantly improves.FN16

The court found the details of the call insufficient to establish both the reasonable suspicion that a crime had occurred, and that the driver was the one involved in the complained-of activity:

"As the record indicates, there was neither a complainant nor a report of stolen bicycles. The anonymous caller did not report contextual factors that reasonably connected the unusual activity to a theft, such as witnessing the suspect use bolt cutters to cut a bike lock or stating that the bikes were taken from someone's garage. More than the officer's opinion that an activity is “suspicious” was needed to relate the activity to a criminal act.FN26

"Finally, Officer Hurley had very little information, corroborated or otherwise, to connect appellant to the unusual activity other than the fact that appellant was driving a Ford pickup truck, similar in color to the described truck, close to the time that the unusual activity occurred, and within three quarters of a mile west of the reported incident.FN27 Even though Officer Hurley was informed that the alleged suspect was male, he testified that he would have pulled over a Ford pickup truck driven by a woman. Before he approached the truck after the stop, Officer Hurley did not see any bicycles in the bed of appellant's truck, nor did he have any other reason to stop the truck. The specific, articulable, corroborated facts known by the officer at the time of the stop were minimal."

Concluding, the court held:

"Based on our review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, we find that Officer Hurley's investigatory detention of appellant was not supported by reasonable suspicion. The court of appeals erred in affirming the trial court's judgments. We reverse the judgments of the court of appeals and remand the causes to that court for further proceedings consistent with this opinion.

Happy Independence Day!



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The Drinking Bra Racks Up Business

The Wine Rack

Designed for only the classiest dames, the Wine Rack is a bra designed to hold the beverage of your choice and, as long as it’s full, adding a little enhancement until the beer goggles kick in. It’s a “drinking system,” so it actually comes complete with a drinking tube, making it easy to take a sip on the go. The drawback, of course, is that carrying 50 liquid ounces around on your chest can be a bit much in plus 90 degree heat. And while it can be inflated with air when the fun is done, people tend to find it strange when cup sizes fluctuate dramatically over the course of an evening.



Read more: http://www.foxnews.com/slideshow/leisure/2011/07/01/fun-and-functional-liquor-luggage/#ixzz1RA6ssmja

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OWI Appeal - Anonymous Tip OK for Traffic Stop Says Wisconsin Court

In

State of Wisconsin v. Coppens, Slip Copy, 2011 WL 2535535 (Wis.App.), an anonymous caller called into the police on a phone line that did not have caller ID. The caller reported that a male driver of a black car with license plate number 953 NRS had nearly hit him in the parking lot of a market. The caller reported that the man “could hardly walk into the store.”

On appeal, the defense claimed that the police did not have reasonable suspicion to stop his vehicle because the anonymous telephone tip that led to the stop lacked reliability and the officer only corroborated readily observable innocent details alleged by the caller.

The Wisconsin court described their test for these situations as follows:

"Information from an anonymous caller can create reasonable suspicion to justify an investigative stop when the caller provides reasonable indicia of reliability. There is no per se rule of reliability, but three factors inform our decision: (1) the caller's veracity; (2) the caller's basis of knowledge; and (3) whether, under the totality of the circumstances, the activity described by the caller describes an imminent threat to public safety. Drunk driving falls into the category of serious threats to public safety, and an officer is not required to wait to personally observe signs of erratic driving or intoxication." (citations omitted)OWI Appeal -

Most courts will find anonymous informers more reliable if they call into phone lines that are known to have Caller ID, or when the complaint is made face-to-face with a police officer, because these people risk being charged with making a false report if they were to lie. Wisconsin took this analysis one step further here:

"[W]e conclude that the caller presented sufficient indicia of reliability to justify the traffic stop. The record contains no reason to believe the caller would have known that the number he called was not equipped with caller identification. He had no basis for knowing how long it would take the police to respond and the officer could have arrived before the caller left the parking lot. Under the circumstances, a caller making a false report would run the risk of being identified and prosecuted if he deliberately lied. See § 946.41 (2009–10). There is also no reason to conclude that the caller purposefully withheld any identifying information or would not have provided his name if he had been asked. Under these circumstances, the record provides no reason to doubt the caller's veracity."

Applying the other factors, the court concluded that the stop was lawful, explaining:

"The caller also demonstrated sufficient basis of knowledge. He reported that he personally observed the driving and the degree of impairment. He reported specific details that showed how he came to know of the illegal activity. Olson was able to confirm that a black car driven by a male with a specific license plate number was present at the location the caller identified within a few minutes of the call. Even if some of these details were “innocent,” they provided Olson with a basis to test the reliability of the anonymous caller. See State v. Williams, 2001 WI 21, ¶ 37, 241 Wis.2d 631, 623 N.W.2d 101. If “an informant is right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.” Alabama v. White, 496 U.S. 325, 331 (1990).


Finally, the anonymous caller reported an imminent threat to public safety. Olson stopped Coppens on a busy roadway with both vehicle and pedestrian traffic. He was not required to endanger public safety by delaying the traffic stop until he could independently confirm Coppens' intoxication."

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DUI Appeal - Design Flaws IN EC-IR Breath Sampling Must Be Allowed at Trial

In People v. Vangelder, --- Cal.Rptr.3d ----, 2011 WL 2583854 (Cal.App. 4 Dist.) the appellate court found in error the trial court's ruling disallowing any expert testimony from defendant that would have presented a physiologist's scientific criticisms of the reliability of the data produced by breath test machines, which are based on the assumption that such devices only measure alveolar (deep lung breath) air.

Defendant's offer of proof from his expert would have provided testimony that this assumption is not always justified, and that a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

As the appeals court recognized, "[i]t must be emphasized that defendant is not arguing that the EC/IR breath test device was malfunctioning, out of order, or incorrectly operated, but instead, he challenges the validity of its design, operation, and sampling method."

Due to the excellent summarization of Dr. Hlastala's testimony, and the scientific basis for it, DAD recommends that the reader review the entire opinion for its value to the profession.

The appellate court explained why the expert testimony was admissible as follows:

"Although breath test results are admissible if a reliable foundation for them is laid, we think that such competent evidence of their potential inaccuracy, because of physical variabilities leading to poor data in sampling, should have been allowed to be considered, as going to the weight to be accorded the testing results. (See 90 A.L.R.4th 155, § 2, p. 164.) In light of the authorities described above, we conclude that the trial court was mistaken in stating that this expert testimony was completely irrelevant as an attempt to rebut the breath test result, for either the per se or generic DUI counts. Under section 23610, subdivision (c), this expert provided enough of a foundation to explain why he believes that the breath test samples were not representative, based upon the problems in obtaining the samples that were inherent within the identified variables of an individual's physiology. The expert was proposing that even a correctly operating breath test device would take in samples that were essentially inaccurate and nonrepresentative of breath-alcohol content, which was ultimately to be converted into a blood-alcohol reading through the use of the partition ratio. He did not have to indicate which way the potential inaccuracy would point, as a foundational matter, in order to cast doubt on this part of the testing method. Even a small error could possibly turn a marginally legal reading into an illegal reading. (See 90 A.L.R.4th 155, § 2, p. 161.)"

Concluding that the exclusion was error, the court stated:

"When the court excluded this expert evidence, the error was not harmless because it was “reasonably probable that a result more favorable to [defendant] would have been reached” had such evidence been admitted. ( Watson, supra, 46 Cal.2d 818, 836.) First, defendant performed well on the physical field sobriety tests. He was driving skillfully and pulled over as soon as the red lights went on. There were identifiable problems with the other two chemical tests given, the PAS test and the blood test, with reference to the timing of administration and the time of driving. Defendant gave a revised drinking history. The jury questioned whether it could convict on a per se count but not a generic count, showing they had some confusion. All of those factors point to probable prejudice in the exclusion of this expert testimony, since it could have shed light upon the accuracy of the EC/IR breath test results or the PAS tests, as they affected the proof of each DUI count charged."

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DUI Appeal - Passenger Busted for Public Intoxication When Car Stops

Posted by Bruce Carton on June 29, 2011 at 04:30 PM from LegalBlogWatch
Responsible Motorist Declines to Drive Drunk, Gets Charged With a Crime Anyway
Stop me when you think you've identified the crime committed by the woman in the facts below:
1. Woman drives to her sister's house.
2. Woman consumes two "tall" beers.
3. Woman's sober friend asks woman to drive him to another person's house.
4. Woman says she is too drunk to drive, but sober friend can drive them both there.
5. Woman and sober friend get in car and head off to other person's house, with woman in passenger seat.
Anybody yell out "Stop" yet? No, not yet? OK, let's add:
6. Police pull over the car driven by sober friend because the license plate light is not working, and see that the woman (who is in the passenger seat) is intoxicated.
How about now? Anyone yelling out "Stop?" Because it is at this point that the Indiana police claim that the woman, Brenda Moore, committed the crime of "public intoxication." Indiana code provides that
It is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance.
The trial court and, as of Tuesday the Indiana Supreme Court, held that under Indiana law, "a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute." Thus, when the police stopped the car in which Moore was a passenger, she became in violation of the statute.
Moore argued that her conviction violated the spirit of the public intoxication statute, and the policy behind it, because she caused no harm or annoyance and "adhered to the popular public service motto 'Don't drink and drive.'" She argued that public policy should "encourage persons who find themselves intoxicated to ride in a vehicle to a private place without fear of being prosecuted for a crime." She further argued that she was essentially being convicted for exercising her freedom to consume alcohol.
But the Indiana Supreme Court rejected these arguments, stating that it was up to the Legislature to determine public policy and that she was convicted not for consuming alcohol but for her "conduct after consumption" (riding as a passenger in a car stopped for a license plate infraction??)
Justice Robert Rucker, my new favorite member of the Indiana Supreme Court, dissented. Rucker wrote that as the purpose of the public intoxication statute is to protect the public from the annoyance caused by intoxicated people, "it is difficult to perceive how this purpose is advanced by declaring that the inside of a closed vehicle traveling along a highway is a public place." He added that "Moore should not suffer a criminal penalty for taking the responsible action of allowing a sober friend to drive her car while she was too intoxicated to do so. I would reverse Moore’s conviction."
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