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

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DWI Law - New Jersey Booking Video Loss Creates Negative Inference

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussing the issues on appeal, the appellate court wrote:

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

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

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

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

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

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

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

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

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

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

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


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DWI Law - NJ Sleeping Driver Guilty of Operation

The state of New Jersey, like some other states, requires that there be an 'intent to drive' proven before a defendant can be found guilty of 'Operating' while DWI when the vehicle is not in motion. “ ‘Operation may be proved by any direct or circumstantial evidence—as long as it is competent and meets the requisite standards of proof.’ “ Ibid. (quoting State v. George, 257 N.J.Super. 493, 497 (App.Div.1992)). The Court has explained that when an individual is sitting “in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation [.]”

In New Jersey v. Ghodbane, Not Reported in A.3d, 2011 WL 2682897 (2011 N.J.Super.A.D.) Officer Anthony O'Brien testified to the following facts: On December 18, 2008, at approximately 1:00 a.m. he was patrolling the parking lot behind the Grasshopper Bar, which closes by 2:00 a.m. He saw defendant in the driver's seat of his car, sitting still and “looking straight up with [his] mouth open.” The car's engine was running with the headlights on. Defendant was sleeping until Officer O'Brien tapped on the window to make sure defendant was all right.

After defendant woke up and opened the door, O'Brien “noticed that [defendant] had vomited on himself.” O'Brien then asked [defendant] what he was doing, where he was going, [and] what his intentions were for the evening.” After asking these questions, O'Brien “detected an odor of alcoholic beverage flavorings.” O'Brien then asked defendant if “he was okay.” Defendant replied that he was and that “[h]e was just going home.” O'Brien asked defendant “if he had been drinking or if he was waiting for someone or just warming up his car to remain sober, to try to get sobered up before he left.” Defendant said that he “was fine,” had only drank two beers and was going to drive home. Defendant told O'Brien that he lived “right over there.” O'Brien then asked defendant to step out of his car and to provide his documentation before taking him to an empty parking space to conduct field sobriety tests. The defendant failed these tests, as well as a breath alcohol test, and was convicted after trial.

On appeal, the defendant argued inter alia that the state failed to prove intent to drive. Defendant argued that if O'Brien had not awakened him, defendant would have slept until he regained his sobriety. In affirming the conviction and finding sufficient proof, the court wrote as follows:

"Defendant relies on State v. Daly, 64 N.J. 122 (1973) in arguing that the State's proofs were insufficient to prove his intent to drive while intoxicated. * * * However, as defendant acknowledges, the defendant in Daly was asleep in a car parked in a tavern lot more than an hour after closing time with the headlights off and the seat reclined. Daly told the officer that the engine was running to keep him warm and that he had no intention of driving until he sobered up. Here, defendant had his seat-back upright, the headlights were on, the bar was still open, and he denied that he had the engine running to keep warm while he sobered up. Rather, defendant said he was “fine,” had consumed only “two beers” and was going to drive home, a short distance away. The fact that defendant had apparently both vomited and fallen asleep unknowingly before being approached by O'Brien does not raise a reasonable doubt as to his intention to operate the car at the time of his arrest."

After rejecting several other issues on appeal, including whether there was Radio Frequency Interference present, the court affirmed the conviction in its entirety.


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OWI Law - Indiana Say 5 Person Jury Trial OK with Defense Consent

In Bex v. State of Indiana --- N.E.2d ----, 2011 WL 3667054 (Ind.App.), the defendant proceeded to trial on an OWI. A jury of six members was seated without an alternate juror being selected. During the trial, one juror suffered a medical emergency, and the case proceeded to a verdict with the five remaining jurors. Initially, defense counsel acknowledged the defense's agreement to continuing with only five jurors, but counsel later moved for a mistrial, which the trial court denied. The five-person jury found Bex guilty, and the trial court sentenced her to 360 days in jail with 350 days suspended to probation and eighty hours of public restitution work.

On appeal, the defendant claimed that a jury trial of less than 6 was unconstitutional. The Appeal Court held that under the Sixth Amendment, a defendant may waive the statutory right to a six-person jury in cases involving a Class D felony or a misdemeanor and consent to a trial by a five-person jury; based upon a defendant's right to waive the presence of an entire jury, it would be inconsistent that a defendant could not waive the presence of one juror.


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DWI Law - Minnesota hands Out Consecutive Sentences In Refusal and DAC Case

In Minnesota v. Parker, Not Reported in N.W.2d, 2011 WL 3654394 (Minn.App.), the defendant was sentenced to consecutive sentences for Driving After Cancellation and Test Refusal. On appeal, the defendant claimed that consecutive sentencing was barred, because the two offenses occurred at virtually the same time, involving the same essential acts. In Minnesota, ordinarily a district court may not impose more than one sentence for multiple offenses committed during a single behavioral incident.

“[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”

The test for determining if violations of two or more traffic statutes result from a single behavioral incident is whether they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.

Many states have the same basic law prohibiting consecutive sentences (unless specifically authorized) for the same basic acts in their sentencing statutes. Minnesota found that the two acts did not prevent multiple sentencing:

"In Reimer, we concluded that “driving with an expired driver's license is a continuing offense that recurs every time appellant drives.” Id. at 177 (affirming the district court's conclusion that prosecution for driving with an expired license and DWI did not violate prohibition on serial prosecutions). “Moreover, the offenses of DWI and driving with an expired license do not manifest an indivisible state of mind or coincident errors of judgment. Appellant's decision to drive with an expired license may be attributed to errors in judgment wholly independent of his decision to drink and drive.” Id. (quotation and citation omitted). We noted in Reimer that “Minnesota courts have reached similar results in a variety of factual situations involving one or more motor vehicle violations.” Id.; see also State v. Meland, 616 N.W.2d 757, 760 (Minn.App.2000) (holding that driving with expired tabs and DWI did not arise from a single behavioral incident); State v. Butcher, 563 N.W.2d 776, 784 (Minn.App.1997) (holding that illegally transporting a firearm and DAC did not arise from a single behavioral incident), review denied (Minn. Aug. 5, 1997); State v. Bishop, 545 N.W.2d 689, 692 (Minn.App.1996) (holding that DAC and aggravated DWI involved dissimilar errors in judgment and therefore involved two offenses). DAC is considered “continuous” in nature and therefore does not meet the test of requiring “an indivisible state of mind or coincident errors of judgment.” State v. Reiland, 274 Minn. 121, 124, 142 N.W.2d 635, 638 (1966). We therefore conclude that appellant's convictions of DAC and test refusal do not arise from a single behavioral incident—regardless of whether they occurred at substantially the same time and place.

Thus, the court found that multiple sentences were not unauthorized. However, due to errors at to other sentencing issues (i.e. the score for defendant's criminal history, and an error in which sentence is first served) the case was remanded for further resentencing.

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DWI Law - Missouri Drug Recognition Protocol Opinion Challenged

Modern day courts, often stocked with pro-State judges and former prosecutors, are loath to take on challenges about police procedures. In Missouri v. Savick, --- S.W.3d ----, 2011 WL 3628889 (Mo.App. S.D.) the defendant was convicted of follwing a court ruling allowing an officer to testify that he believed Defendant was under the influence of a central nervous system stimulant, based upon a drug recognition evaluation. On appeal, the court reviewed the DRE protocol:

"A drug recognition evaluation is designed to allow an officer to detect what category of controlled substances may have rendered an individual impaired or intoxicated and is based upon observations of certain characteristics which are known to be exhibited by an individual who is under the influence of a specific category of controlled substances. The evaluation looks for indicators of seven drug categories—entral nervous system depressants, central nervous system stimulants, anesthetic dissociatives, narcotic analgesics, inhalants, cannabis, and hallucinogens—and consists of twelve standardized steps: (1) administer a breath alcohol test; (2) interview the arresting officer; (3) conduct a preliminary examination of the individual to rule out alcohol or medical impairments; (4) administer an HGN test; (5) administer the Romberg balance, walk-and-turn, one-leg stand, and finger-to-nose tests; (6) take the individual's vital signs, including pulse, blood pressure, and temperature; (7) examine the individual's eyes with a penlight in a dark room; (8) examine the inside of the individual's nose and mouth; (9) examine the individual's muscle tone; (10) interview the individual; (11) form an opinion regarding whether the individual is under the influence of a particular category of controlled substances; and (12) request a urine sample for toxicological analysis."

The appellate court avoided the ultimate issue in the case, namely the DRE protocol's validity and reliabiliuty, by finding that ruling on the issue was unnecessary. Here's how they did it:

• First. they re-stated the exact appellate issue written by the defendant:

"The trial court erred and abused its discretion when it permitted Detective Gooden to testify over [Defendant's] foundation objection that it was Gooden's opinion, based on a drug recognition evaluation, that [Defendant] was under the influence of a central nervous system stimulant at the time he was driving, in violation of [Defendant's] rights to due process of law and a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. The State failed to demonstrate that the ability to determine intoxication from a specific drug category from a drug recognition evaluation without a toxicology examination was generally accepted in the scientific community, a necessary foundation for expert testimony."

• Second. The appeals court interpreted the issue stated as having only preserved the propriety of the officer's opinion, rather than the entire DRE protocol itself:

"Defendant only challenges Gooden's opinion testimony that Defendant was under the influence of a central nervous system stimulant, or step 11 of the drug recognition evaluation. Our review is limited to those issues raised in an appellant's point relied on and subsequently expounded upon in an appellant's argument. See Rule 84.04(e) as made applicable by Rule 30.06(c); State v. Morrow, 541 S.W.2d 738, 740 (Mo.App.1976). Consequently, the remainder of Gooden's testimony, including his observations during all of the other steps of the drug recognition evaluation, may be considered by this Court as unchallenged and properly before the jury. On that basis, it is impossible to conceive that a reasonable probability exists that but for Gooden's statement that he believed Defendant to have been under the influence of a central nervous system stimulant, the jury would have acquitted Defendant of driving while intoxicated."

• Third. The court, then stating that all of the other steps in the DRE had gone unchallenged, found that:

"Assuming, without deciding, that the trial court abused its discretion in admitting Gooden's opinion testimony, Defendant cannot succeed in his argument because he has not and cannot show the requisite outcome-determinative prejudice resulting from such admission. In order for error to be prejudicial and thus require reversal, it must be shown that, but for the admission of the challenged evidence, there is a reasonable probability that the result would have been different."

Today's case is thus a perfect example as to how many appellate issues are avoided by the courts simply through artful dodging of the issues at hand. Counsel are cautioned to make appeals airtight to avoid such results.


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DWI Law - Texas Declares Stop of Car Illegal Under Caretaking Exception

Texas gets a second one right in less than one month! In Alford v. State of Texas, --- S.W.3d ----, 2011 WL 3505698 (Tex.App.-Dallas) Wylie police officer Jeff Callan was on bicycle patrol with another officer at approximately 12:45 a.m. when they pulled into a church parking lot to rest. About 100 yards away, Callan saw a vehicle pull up and stop at a dead end street through a very wide alleyway behind a Jack in the Box restaurant, which was open at the time. Callan saw the passenger door open, and the passenger “kind of turned sideways half of their body was out and was leaning over saying something to the driver.” Callan observed the vehicle for “between five to seven minutes.” Callan could hear the passenger and the driver talking but could not hear what they were saying, and “it appeared that they were talking very loudly for us to hear it that far away.” Callan said he was going to “ride over there and see what's going on.” As the officers approached, the passenger got out of the vehicle and changed places with the driver. When Callan reached the vehicle, he saw through the passenger window that the gear shift was in drive and made eye contact with the driver, appellant, who started to drive away. Callan asked appellant if she would “mind putting it in park” and said he wanted to talk to her for a second. Callan asked if everybody was okay and said he noticed they were sitting there for a while. Appellant said they “were just changing positions” and had come from a place where they had watched a friend play in a band. At that point, Callan noticed a strong odor of an alcoholic beverage coming from inside the vehicle and asked appellant how much she had to drink. Appellant said she had “four big beers.” Callan then began a DWI investigation and administered field sobriety tests, which indicated to Callan that appellant was intoxicated. Callan arrested appellant for DWI.

On appeal from the denial of a motion to suppress, the appellate court was asked to review the determination that the stop was proper under the community caretaking doctrine. Discussing Texas' version of the doctrine, the court stated as follows:

"As part of an officer's duty to “serve and protect,” an officer may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Here, the record reflects that Callen was concerned that “there was a disturbance going on or possibly a sick person in the vehicle.” The trial court, as the exclusive judge of credibility and finder of fact, could have concluded that Callan was primarily motivated by community caretaking concerns." (citations omitted)

The court then turned to whether, even if the officer was motivated primarily by caretaking concerns, whether such motivation was reasonable. Describing the factors to be employed and applying them to the facts, the court found in favor of the defendant:

"Here, the first factor, the nature and level of the distress exhibited, is almost non-existent. Appellant “kind of turned sideways half of their body was out and was leaning over saying something to the driver,” according to Callan. Callan “didn't know” if there was “a disturbance going on or possibly a sick person in the vehicle.” Callan heard appellant and her sister talking, but he did not testify he heard a dispute or a call for help or any other indication of distress. Appellant got out of the car, walked around it, and got in the driver's seat, but Callan did not testify appellant or her sister exhibited any distress as they changed positions in the car. This factor weighs against the stop. Concerning the second factor, the location of appellant was on a dead-end street where “you don't see a lot of traffic” outside an open Jack in the Box restaurant. In fact, the location was being patrolled by Callan and his fellow officer. This factor weighs against the stop. The third factor also weighs against the stop. Appellant was with her sister and had access to an open restaurant if she had needed assistance. The fourth factor, the extent to which appellant presented a danger to herself or others if not assisted, weighs against the stop. Appellant merely sat in a car talking and walked around the car and took the driver's seat. There is no evidence that appellant exhibited any behavior that would show her to be a danger to herself or others in getting out of her car and walking around it. Applying the Wright factors, we conclude Callan's exercise of his community caretaking function was not reasonable. Accordingly, appellant's interest in being free from arbitrary government interference outweighed Callan's exercise of his community caretaking function. Under these circumstances, the trial court erred in denying appellant's motion to suppress on the basis Callan was acting within his community caretaking function." (citations omitted)

Editor's note: The appellate court got it write (at least the second part about reasonableness of concern).

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OWI Law - Iowa Rejects Refusal Change of Mind Policy

In Welch v. Iowa Department of Transportation, --- N.W.2d ----, 2011 WL 3522804 (Iowa) the Iowa Supreme Court decided to re-visit the issue as to whether an initial refusal could be cured by a subsequent consent. Here, the defendant initially refused a breath test, but changed his mind eleven minutes later. Nothing had changed during those elven minutes. Iowa reviewed the law across the country, noting that a large minority of states allowed a person to have a 'change of heart' under certain conditions, namely: a previous refusal may generally be cured by a subsequent request for a chemical test so long as the request is made within a reasonable time and the delayed administration of the test will neither materially affect the test results nor substantially inconvenience the police.

In deciding that precedent and simplicity was more important than the goal of determining who was guilty and who was not guilty through actually testing, Iowa claimed that upholding the initial refusal was more important than getting an actual blood or breath result:

"Additionally, a bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens. Law enforcement officials have to make many quick decisions as to what the law requires where the stakes are high, involving public safety on one side of the ledger and individual rights on the other. A clear, teachable rule is a high priority. Welch's flexible approach, by contrast, is likely to lead to uncertainty in particular cases. See, e.g., Stone v. McCullion, 27 Ohio App.3d 112, 500 N.E.2d 326, 328 (Ohio Ct.App.1985) (“No specific period of time ... can be laid down as reasonable or unreasonable in any and all events.”).FN9

Also, Iowa's existing, clearcut “one refusal” rule reduces the time and cost burdens on law enforcement. As we noted in Krueger, if a motorist can change his or her mind, this means the officer must remain with or near the arrested motorist, effectively removing him or her from other duties, until the “reasonable” time has expired. 169 N.W.2d at 879; see also, e.g ., Zidell, 71 Cal.Rptr. at 113 (“It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences.”). Welch may argue that the last two of the five Standish factors alleviate this burden, because the initial refusal may be withdrawn only if there will be no substantial inconvenience or expense to the police and the individual requesting the test has been in the custody of the arresting officer. But “inconvenience” is in the eye of the beholder, and debates could arise as to whether the motorist remained in the officer's custody and, if not, whether the officer deliberately placed the motorist in another person's custody in order to avoid a possible retraction."

Editor's note: Bright-line rules is what it's all about, isn't it? In a society where individualism is repressed, and conformism is rewarded, we should all applaud Iowa's decision not to be swayed by the thought of giving someone one more chance to prove they are innocent. Whew! That was a close one! One almost got away! It reminds me of the song from Music man entitled Iowa Stubborn, where the below lyric is found:

“We can be cold as our falling thermometers in December if you ask about our weather in July. And we're so by God stubborn we can stand touchin' noses for a week at a time, and never see Eye to Eye.”

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DWI Law - Texas Judge Videotape Trial Policy Violates Rights

This opinion comes to DAD thanks to NCDD Regent Troy McKinney, who tells DAD that the trial attorney in the case was NCDD Fellow Gary Trichter. Troy says that "this went on this county (north of Dallas) for over 20 years with no lawyer ever appealing it." This is a case where 26 lawyers filed affidavits regarding the policy in question. Before trial, appellant filed a motion styled “Motion To Play Video For Defense Cross–Examination, Defense Direct Examination, In Closing Arguments [,] In A Motion To Suppress Outside The Presence Of The Jury.” In his motion, appellant stated:

[The trial court] had a long standing policy of not allowing litigants to use a properly admitted DWI video/audio recording for a defendant for purposes of cross examination of the arresting officer in the State's case in chief, for direct examination of defense witnesses in defendant's case in chief, for use before the jury prior to closing argument or to play the same during closing argument. Rather, it is understood that the court will admit the recording and allow the jury to use it only during deliberation.

Appellant then filed a motion to recuse the trial court judge, contending the trial court's routine practice of not allowing defendants to play or use audiotapes and videotapes during the questioning of witnesses constituted bias and denied appellant his federal constitutional rights to due process of law, cross-examination, compulsory process, confrontation, a fair trial, effective assistance of counsel, and his right to present a defense. Appellant further alleged the trial court's policy denied him his rights under the state constitution to put on a defense, to due course of law, to cross-examination, to confrontation, to a fair trial, to compulsory process, and to effective assistance of counsel.

The appellate court ruled as follows:

"We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion. See Billodeau, 277 S.W.3d at 39; Mechler, 153 S.W.3d at 439; Montgomery, 810 S.W.2d at 380. We further conclude the trial court's order deprived appellant of a meaningful opportunity to defend himself, and violated appellant's rights under the Sixth and Fourteenth Amendments to present his defense and confront the witnesses against him. See Holmes, 323 S.W.3d at 173.

Editor's Note: As they say, everything in Texas is 'BIG'. And nothing is bigger than the guts it takes to call out a bad judge or a bad policy. Congrats to all attorneys involved.


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DUI Law - Kansas Finds Refusal Remarks of Prosecutor Improper

In State of Kansas v. Nye, --- P.3d ----, 2011 WL 3209855 (Kan.App.) the court was asked to decide whether a prosecutors comments about a refusal to submit crossed the threshold from fair comment on consciousness of guilt, into the improper area of shifting the burden to defendant to prove his innocence. The appeals court wrote:

"As a general rule, a prosecutor's comments in closing argument on the defendant's refusal to take a breath test, including the inference of intoxication that may be drawn from the evidence, are within the wide latitude that a prosecutor is allowed in discussing the evidence. Nevertheless, we perceive a distinction between the prosecutor's comments herein and those comments approved by this court in Wahweotten. We are particularly concerned with the following comments made by the prosecutor herein:

“We all know the result will be incriminating if he had taken it [the breath test]. Why is he now saying he's not guilty? He knew back then, 1st of February, 2009. Now he's saying he's not guilty. Does that make any sense to you?

....

“... The defendant is guilty. He knows it.”

We find that these comments go beyond a prosecutor's fair argument that intoxication may be inferred from the defendant's refusal to take a breath test. Nye's refusal to take the breath test does not justify the prosecutor's comment that Nye “knew back then” that he was guilty, and “[h]e knows it” now. We believe these particular comments crossed the line and placed a burden on Nye to take the breath test to prove his innocence. Moreover, the prosecutor's comments impugned Nye's right to contest the DUI charge and request a jury trial."

Nevertheless, the appeals court found this error, as well as several other improper comments, harmless. Save this case for your motion in limine.


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DUI Law - Arizona Court Explains Right to Free Breathalyzer Expert

In State of Arizona v. Manuel, Not Reported in P.3d, 2011 WL 3210664 (Ariz.App. Div. 2), the defendant appealed his conviction for Aggravated DUI Based upon the failure to be provided with indigent funds to hire an expert of his choosing, namely Chester Flaxmeyer. The Pima County Office of Court Appointed Counsel (OCAC) refused to provide public funds sufficient for him to retain a particular expert. Instead, he was provided with expert Chuck LaRoue. On appeal, after receiving an 8 year sentence, he complained that he should have been given the expert of his own choosing.

Describing the state (and the underlying federal law) law in this area, the Arizona court wrote:

“The denial of expert witness assistance to a criminal defendant can violate the Due Process Clause of the Fourteenth Amendment.” Jones v. Sterling, 210 Ariz. 308, ¶ 27, 110 P.3d 1271, 1277 (2005). But “the appointment of an expert witness [is required] only when ‘such assistance is reasonably necessary to present a defense adequately at trial or sentencing.’ “ Id. ¶ 29, quoting Ariz. R.Crim. P. 15.9(a); see also A.R.S. § 13–4013(B). “The unique facts of each case will determine what is ‘reasonably necessary’ for an indigent to adequately present a defense.” State v. Bocharski, 200 Ariz. 50, ¶ 61, 22 P.3d 43, 55 (2001). And, because the mere denial of a request for appointment of an expert witness, much less an expert of the defendant's choosing, does not necessarily render a criminal trial an unreliable vehicle for determining guilt or innocence, the structural error standard of review does not apply. Cf. State v. O'Dell, 202 Ariz. 453, ¶ 13, 46 P.3d 1074, 1079 (App.2002) (showing of prejudice required to establish due process violation).

However, the court found that the defendant had failed to bring OCAC's refusal to provide funding to the trial court, and so the error was waived, except to the extent that it could constitute "a fundamental error." The court stated:

"Manuel initially sought funding through OCAC to retain Chester Flaxmeyer as an expert to testify regarding the accuracy of the Intoxilyzer 8000, the device used to measure Manuel's blood alcohol levels. OCAC denied Manuel's request because Flaxmeyer's fee exceeded the amount OCAC could authorize, and Flaxmeyer would not agree to reduce his fee. Thus, it was OCAC that made the funding decision Manuel argues was error, not the trial court. And, as we noted above, Manuel never challenged that decision before the court. Instead, he retained another expert, Charles Laroue, through funding approved by OCAC."

Concluding that no fundamental error occurred, the court wrote:

"Although the state filed a motion arguing Laroue lacked the qualifications to testify as an expert and should be precluded from testifying at trial, the trial court denied the motion, finding it was untimely filed. On appeal, Manuel points out that, despite its ruling, the court stated that if the state objected on foundation grounds to Laroue's testimony at trial, the court might sustain the objection. Manuel acknowledges, however, that Laroue testified at trial and the state did not object. To the extent Manuel challenges the qualifications of his own expert, we reject that argument.

"A witness may be qualified as an expert by “knowledge, skill, experience, training, or education.” Ariz. R. Evid. 702. At trial, Laroue stated he had testified as an expert witness in more than two hundred cases in Arizona. Laroue was a second-year law student with a bachelor of science degree in paralegal studies. Additionally, he stated he has logged hundreds of hours of training and experience with the Intoxilyzer 8000, has become an instructor for that device through a program approved by the United States Department of Transportation, and teaches classes on “a national basis for both the Intoxilyzer 5000 and the Intoxilyzer 8000.” “Whether a witness possesses sufficient qualifications to testify as an expert is a matter within the trial court's discretion and that determination will not be upset on appeal in the absence of clear abuse.” State v. Saez, 173 Ariz. 624, 630, 845 P.2d 1119, 1125 (App.1992). On the record before us, we find no error, let alone fundamental error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607."

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DUI Law - Farting is Not a Defense to Breath Testing in Alaska

In Hallam v. City and Borough of Juneau, Not Reported in P.3d, 2011 WL 3241827 (Alaska App.), the defendant challenged the admission of the breath test, claiming a failure by the State to prove compliance with the state regulations. Hallam claimed he burped or regurgitated prior to submitting to the breath test and the police officer should have restarted the fifteen-minute observation period. He also argued that the police should have made an audio recording of the fifteen-minute observation period.
At the police station, before the administration of the breath test, Hallam used the bathroom and asked to call his attorney. To provide Hallam with some privacy during his conversation with his attorney, Officer James turned the audio recording off. She turned the recorder back on once Hallam was finished talking with his attorney. Shortly before the breath test, Hallam made a sound, and Officer James asked him, “Was that gas?” Hallam provided a breath sample, which showed his breath alcohol content was .201 percent. At trial, Hallam's attorney moved to suppress the breath test result. He argued that the sound Hallam made shortly before the breath test was a belch or regurgitation, and that the officer should have restarted the fifteen-minute observation period.
The trial court's ruling admitting the result was affirmed:
"The record supports Judge Levy's decision. The only evidence before Judge Levy at the time he ruled on whether the officer met the foundational requirements was the recording and Officer James's testimony that Hallam had passed gas during the observation period. Hallam has therefore not shown Judge Levy's ruling was clearly erroneous."
Additionally, the court commented on the requirement to audiotape the observation period as follows:
"Hallam argues Judge Levy erred in finding the prosecutor established the foundational requirements for admitting the breath test result because the police did not record the entire fifteen-minute observation period. Hallam relies on the Department of Public Safety manual as authority for his argument that the police are required to audio or video record the entire observation period. The Department of Public Safety manual does instruct officers to record the fifteen-minute observation period, but we do not view this provision of the manual as an administrative interpretation of the statutory foundation for the admissibility of breath test results. Our primary reason for reaching this conclusion is that recording the observation period appears to have no relationship to the accuracy of the test.

For the breath test result to be admissible, the police must conform with the foundational requirements mandated in AS 28.35.033(d) and the Alaska Administrative Code. The police may be required to meet additional standards, such as those in a manufacturer's manual, if the additional requirements are necessary to assure valid and reliable breath tests." (footnotes omitted)


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DUI Law - Alaska Jail Sentence for Importing Alcohol

In Egoak v. State of Alaska, Not Reported in P.3d, 2011 WL 3305424 (Alaska App.), the defendant was sentenced to a maximum term of one year to serve for importing alcohol into a dry village. He appeals his sentence, arguing that his due process rights were violated because he had no notice that he would be sentenced to the maximum term as a worst offender. At the sentencing hearing, the State recommended a flat-time sentence of sixty days for these offenses. The prosecutor noted that Egoak had thirty-six prior misdemeanor convictions, including three prior convictions for importation of alcohol in 2000, 2001, and 2004, and six prior driving under the influence convictions, two of them within the past fifteen years. The prosecutor also noted that Egoak had a history of assaultive behavior. Egoak's attorney agreed that a sixty-day sentence “does seem warranted in light of the criminal history.”

Magistrate Burley rejected the parties' recommendation of a sixty-day sentence and imposed a flat-time sentence of 365 days. After imposing this sentence, the magistrate invited Egoak's attorney to make additional argument, but he declined.

On appeal, the court affirmed:

"Egoak's claim that he had no notice that he faced a possible maximum sentence is without merit. At Egoak's change of plea hearing, the magistrate expressly advised Egoak that she could “go all the way up to the maximum” of one year to serve in sentencing him.FN2 Egoak said he understood. Moreover, it is well-settled in case law that a lengthy history of misdemeanor convictions will justify a worst offender finding and the imposition of a maximum term."

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DWI Law - Texas Blood Draw Method Constitutional Says Court

In Pacheco v State of Texas, --- S.W.3d ----, 2011 WL 3211265 (Tex.App.-Fort Worth) the Court of Appeals was asked to review the reasonableness of the defendant's blood draw under the Fourth Amendment. The Texas court summarized its view of the general law in this area as follows:
"A blood draw constitutes a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S.Ct. 1826, 1829 (1966). The “Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. The Supreme Court has set out a two-step test for determining the reasonableness of a blood draw. Id. A blood draw is reasonable under relevant Fourth Amendment standards if:

(1) the police had justification in requiring the suspect to submit to a blood test, and

(2) the police employed reasonable means and reasonable procedures in taking the suspect's blood."
In the instant case the defendant only challenged the means and procedures employed.

Christy Smith, a medical technologist certified by the American Society for Clinical Pathology, drew a sample of Pacheco's blood for testing. Smith testified that she has more than thirty years of experience as a medical technologist and that she has taken thousands of blood samples in that capacity. Smith wrote a reminder on a sticky note after drawing Pacheco's blood that said, “Pacheco, Ernest. 11/12/08. Hispanic male, short,” and “looked like Val,” one of Smith's coworkers. Smith testified that she drew blood only from Pacheco that day and that she followed the same procedure drawing his blood as she followed when drawing samples from all patients. According to Smith, the procedure follows Weatherford Regional Hospital's policies and protocols, and it does not require the technologist to ask for a patient's medical history before drawing blood.

Pacheco argued that Clark and Smith failed to obtain Pacheco's “general medical history” and that “no follow up was done.” Pacheco contended that this failure subjected him to “an unreasonable risk of medical harm that made the blood draw unreasonable under the 4th Amendment of the United States Constitution.” The State argues that the “highly trained, educated, experienced, and certified medical technologist who drew [Pacheco's] blood in a hospital testified that she does not conduct either procedure as part of her normal blood draw routine, but she did follow hospital policy and procedure.... Therefore, neither was medically necessary in this case.”

The court responded to those claims as follows:

"For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual's blood alcohol level. Id.; see also Breithaupt v. Abram, 352 U.S. 432, 435–36, 77 S.Ct. 408, 410 (1957) (explaining that those entering the military, marrying, or going to college must take blood tests and millions voluntarily donate blood so the “blood test procedure has become routine in our everyday life”); Johnston, 336 S.W.3d at 659. Courts may deem blood testing to be unreasonable over another method of testing when “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. But failing to inquire into an individual's medical history before drawing blood and failing to conduct a follow-up examination do “not render blood draws per se unreasonable.” Johnston, 336 S.W.3d at 659. Therefore, the suspect has the burden to show that the type of test employed was “not a reasonable means to obtain a blood alcohol level assessment as to him or her individually.” Id. at 660. The record must contain evidence showing that the police chose a test that was not reasonable due to a “verifiable medical condition,” or we will presume that the choice to administer the test is reasonable. Id.

Here, the record contains no evidence that Pacheco suffers from a medical condition that would have made another means of testing preferable. See id. And Pacheco is not one of “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing,” as Pacheco had already refused to give a breath specimen. See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. Because Smith's failure to ask Pacheco about his medical history and conduct a follow-up examination did not render the draw unreasonable, we conclude that the police chose a reasonable means to obtain a blood alcohol assessment as to Pacheco, individually."

Pacheco then argued that Clark and Smith did not perform the procedure in a reasonable manner because the paperwork documenting the blood draw was incomplete. He contended that the “lack of identifiers places a patient at risk”; that medical procedures concerning the identity of the patient are “critical to preventing, diagnosing[,] and treating a person and can prevent unreasonable risks of medical harm”; and that it “creates unreasonable risks of medical harm.” The State argued that Pacheco failed to demonstrate how some clerical errors in the accompanying paperwork rendered the blood draw constitutionally unreasonable.

To that claim, the court wrote:

"Police officers act reasonably when drawing blood if they act in accordance with accepted medical practices, including the equipment and technique that they employ. Johnston, 336 S.W.3d at 663. The Supreme Court has explained that tolerating searches that were conducted by unqualified personnel or outside a medical environment may “invite an unjustified element of personal risk of infection and pain.” Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836. Searches justified by a valid warrant have a presumption of legality unless the opponent produces evidence rebutting the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). “[T]he reasonableness of the manner in which a DWI suspect's blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw.” Johnston, 336 S.W.3d at 661.

Pacheco's argument that identifiers can prevent unreasonable risks of harm is misplaced because the standard is whether the blood was drawn in accordance with accepted medical practices, and Smith testified that she followed both the hospital's policy for drawing blood and the directives of her certification on how to draw blood. Pacheco argues that the lack of “identifiers” put him at “risk of medical harm,” but he fails to explain how he was at risk. Without more, Pacheco has failed to satisfy his burden to rebut the presumption of reasonableness. The record contains evidence supporting the trial court's conclusion that “the manner in which [Pacheco's] blood was drawn was reasonable.”

In denying the appeal, the court concluded:

"Under the totality of the circumstances, we hold that the equipment and technique Smith employed to draw Pacheco's blood followed medically accepted practices and was therefore reasonable. See Johnston, 336 S.W.3d at 662–63 (holding “Johnston's blood was drawn in accordance with acceptable medical practices and was therefore reasonable.”). The circumstances here did not “invite an unjustified element of personal risk of infection or pain.” See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836."


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30 Lawyers Pick 30 Books Every Lawyer Should Read - Magazine - ABA Journal

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DUI Laws - Vermont Says Boom-Lift is a Vehicle Under Drunk-Driving Laws

In State of Vermont v. Smith, --- A.3d ----, 2011 WL 3198820 (Vt.), 2011 VT 83, the trial court dismissed the charges of DUI and driving while suspended based upon the fact that a boom-lift is not a "motor vehicle". A boom lift is a machine with four wheels and a gas or oil fueled motor. The operator stands in the bucket at the end of the lift arm to engage the motor to travel to the precise position required for work. The maximum speed of movement of the boom lift is approximately five miles per hour. Once the machine is in the correct location, the lift arm operates by battery or hydraulic power. While in the bucket, the operator maneuvers the arm and the machine base using levers, joysticks, toggle switches, and buttons. A boom lift contains several safety measures including one that automatically stops it when a foot pedal is released and another that locks the machine in place when it is imbalanced. The State appealed.

On appeal, the Supreme Court of Vermont found that a boom-lift is in fact a "motor vehicle" based upon the definition of the same under Vermont law. “Motor vehicle” is defined as “all vehicles propelled or drawn by power other than muscular power, except farm tractors, vehicles running only upon stationary rails or tracks, motorized highway building equipment, road making appliances, snowmobiles, or tracked vehicles or electric personal assistive mobility devices.”

Applying a doctrine commonly referred to as "expressio unius est exclusio alterius", the court found that the boom-lift was not excluded from the definition:

"If the Legislature had intended that exceptions comparable to those explicitly mentioned be recognized, it could have drafted the language to make the list of exceptions nonexclusive. Without such an authorization, we have held that “where express exceptions are made, the legal presumption is that the Legislature did not intend to save other cases from the operation of the statute.... [A]n exception in a statute amounts to an affirmation of the application of its provision to all other cases not excepted, and excludes all other exceptions.”

Concluding, the court stated:

"While defendant correctly states that statutes must be construed to avoid irrational results and effect legislative intent, these concerns are not implicated in this case. Nor do we have to analyze the statutory language in comparison with every kind of motorized equipment in order to resolve this case. Key features of a boom lift's design are its ability to transport itself and its operator to the proper location at the building site where the lift arm is needed, and its operation from the bucket. Without this transportation function, the lift would be extremely difficult to use because it could not be easily moved to different places at a work site. That the machine travels at a relatively slow speed and is generally driven only relatively short distances is immaterial. Just as the broken-down car in Tacey was assessed based upon its design rather than its temporary condition, so should the boom lift be assessed by its capability to be used for motorized transport rather than the frequency of such use in comparison to the lift function."

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OWI Laws - Maine Says Illegal Stop By Information-Seeking Cop

This gem comes to DAD via Maine NCDD Member Wayne Foote. In State of Maine v. LaPlante, --- A.3d ----, 2011 WL 3298509 (Me.), 2011 ME 85, The question presented was whether evidence obtained from an information-seeking stop of a single vehicle, made in the absence of any reasonable articulable suspicion, for the sole purpose of investigating a third party's civil speeding infraction, can be used in a criminal proceeding against the person who has been stopped.



On September 1, 2007, Elmer Farren, a trooper with the Maine State Police, was patrolling in his marked cruiser on Route 179 in Hancock County. While on patrol, the trooper clocked by radar a red Pontiac automobile traveling seventy-one miles per hour in a forty-five-mile-per-hour zone. As the trooper was making a turn to pursue the car, a motorcycle passed him.



The trooper lost sight of the car, and after traveling a brief distance, arrived at a fork where Route 179 intersects Route 180. He continued along Route 179 but did not see the Pontiac, so he drove back to the fork. On Route 180, the trooper still did not see the Pontiac, but he did come upon the motorcycle. The trooper stopped the motorcyclist “to take a chance that maybe the motorcycle operator had seen where this vehicle might have turned.” He activated his blue lights and stopped the motorcycle, which was being operated by LaPlante, for the sole purpose of asking about the direction of the Pontiac. LaPlante had not been speeding or noticeably breaking any laws, and his motorcycle did not demonstrate any vehicular defects that might justify a safety-related stop.



LaPlante was able to identify where the Pontiac had turned. While they spoke, the trooper noticed that LaPlante seemed “a little bit unstable on his feet” and “his speech seemed to be thick.” The trooper surmised that LaPlante might have been drinking. He requested LaPlante's license and redirected his efforts to investigating LaPlante for operating under the influence. LaPlante was eventually charged with criminal operating under the influence (Class C), 29–A M.R.S. § 2411(1–A)(C)(3). LaPlante moved to suppress the evidence obtained during his vehicle stop, but the court denied the motion.



The Supreme Court reversed the denial of the motion to suppress. They concluded that a law enforcement officer's investigation of a third party's civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist:

"The three Brown v. Texas factors lead us to conclude that the public interest in addressing a civil speeding infraction, and the degree to which that interest is furthered when a single motorist is stopped for questioning, is far outweighed by the substantial interference with the stopped motorist's constitutionally-protected liberty interest. The investigation of a civil speeding offense does not justify the discretionary seizure of a motorist in the absence of reasonable articulable suspicion. Accordingly, the evidence derived from the trooper's stop of LaPlante should have been suppressed."

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DUID Appeal - Idaho Bars Refusal Evidence at Trial

In the DUI-related drug arrest of State of Idaho v. Betancourt, --- P.3d ----, 2011 WL 3305382 (Idaho App.), a redacted videotape of the on-scene arrest of Betancourt for methamphetamine possession and DUI was played to a jury. The video showed the defendant refusing to consent to a search of his vehicle and that he wanted to protect his civil rights.. During closing arguments, the state made the following impermissible comments regarding this refusal during closing argument:

But there's more. Watch the video. You saw his demeanor on the video. He did not want those troopers to search that vehicle. His story is incredible. It doesn't make any sense. It changes. All that you can consider.

In addition, during rebuttal to Betancourt's closing argument, the prosecutor also stated:

But this case, the evidence you have heard is a lot more than mere proximity. Listen to the video, watch his demeanor. It speaks volumes about his concern about these troopers not getting into that car. He's trying to lead them astray and keep them out of that vehicle. That's clear.

There was no contemporaneous objection to either of these comments. Betancourt asserted on appeal that these comments urged the jury to infer his guilt from the invocation of his Fourth Amendment right to refuse to consent to the search of the vehicle, and the appellate court agreed:

The Idaho Supreme Court addressed an instance of prosecutorial misconduct similar to the comments made by the prosecutor in this case in State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007). There, the Court held that the prosecutor's questioning of an officer regarding Christiansen's refusal to consent to a search of his business constituted fundamental error. Id. at 470–71, 163 P.3d at 1182–83. The Court held that the same rationale for excluding evidence of an accused's invocation of his or her Fifth Amendment rights applied to the invocation of a defendant's Fourth Amendment rights. Id. at 470, 163 P.3d at 1182. Specifically, the Court relied on prior United States Supreme Court and Idaho Supreme Court cases for the proposition that reference to a defendant's invocation of a constitutional right deprives an accused of his or her constitutional right to due process and a fair trial. Id.; see also Griffin v. California, 380 U.S. 609, 615 (1965); State v. White, 97 Idaho 708, 715, 551 P.2d 1344, 1351 (1976).

* * * *

Other jurisdictions have addressed this issue and have also concluded that a prosecutor's reference to a defendant's refusal to consent to search constitutes a violation of the defendant's right to a fair trial. See United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978) (stating that, “if the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right”); Padgett v. State, 590 P.2d 432, 434–35 (Alaska 1979) (the constitutional right to refuse to consent to a search would effectively be destroyed if the exercise of such a right could be used as evidence of guilt); State v. Palenkas, 933 P.2d 1269, 1280 (Ariz.Ct.App.1996) (invocation of a constitutional right is probative of nothing other than the defendant's awareness of his or her constitutional rights). Based on the reasoning of the Idaho Supreme Court and the other above-listed authorities, we conclude that Betancourt has established the first prong of Perry because the prosecutor's comments during closing argument and rebuttal violated Betancourt's constitutional right to a fair trial.

Concluding, the court stated "the prosecutor's improper comment during closing argument regarding Betancourt's refusal to consent to a search of the vehicle constituted fundamental error. Accordingly, we vacate Betancourt's judgment of conviction and remand for a new trial."



Editor's Note: why doesn't the law stating that evidence of a refusal to consent to a search of a vehicle is inadmissible, also apply to refusal's to consent to a search of one's blood, breath and urine? When a defendant refuses, isn't he simply stating that he demands that an independent magistrate review the facts to determine whether compliance via the granting of a search warrant is required?



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OWI Appeal - Improper Remarks by Prosecutor Re Testing is Declared

In State of Wisconsin v. Numrich Slip Copy, 2011 WL 3300202 (Wis.App.) the defendant was convicted of OWI. On appeal, the court held that several of the prosecutor's comments or questions were improper. First, the prosecutor raised an objection, and blurted out in front of the jury:

[Prosecutor]: Your Honor, I'm going to object to this line of questioning at this point. Um, all this stuff about air in the bottle, the mixture, counsel had the sample available, he knows he had it tested, and the implication in front of the jury at this point is that there's potentially a problem here. Counsel knows there was no problem and is—

[Defense Counsel]: Judge, I object—

[Prosecutor]:—again, and therefore this line of questioning is both irrelevant and improper because Counsel knows there's no factual basis for the implication of those questions.

On appeal, the prosecutor admitted that this remark was wrong, but sought to excuse it as having been made in the heat of the litigation.
Second, the prosecutor called the State Chemist. During redirect, the prosecutor asked if the blood sample had been picked up for independent testing, and the chemist answered that it had been forwarded to another lab for testing. Numrich's objection was sustained and the trial court instructed the jury to “disregard that line of questioning.”

Third, the defense called an expert to criticize the State's blood test. On cross-examination the prosecutor asked the defense expert if he was involved with the independent testing of the blood sample. The trial court allowed the question over Numrich's objection. The expert answered that he was not involved in the testing, but he had had access to the results.

Fourth, Numrich took the stand. He testified in direct examination that he had consumed the equivalent of twenty-six twelve-ounce beers on Saturday, April 4, 2009, and that he consumed the equivalent of four twelve-ounce beers on the morning of Sunday, April 5, 2009, prior to driving. He further testified that he did not feel impaired by the alcohol, and that he had been drinking his entire adult life and he knew when he had had too much to drink. The State argued that this opened the door for evidence of Numrich's past OWI convictions to impeach his testimony that he knew when he had had too much to drink. The trial court agreed, and the State was allowed to ask Numrich on cross-examination whether he had, on previous occasions, been caught drunk driving, to which Numrich answered that he had.

Fifth, during closing arguments, the defense attorney reviewed the evidence and stated that, in his mind, the evidence created a doubt as to Numrich's guilt. During the State's closing argument the prosecutor said that “[j]ust because [the defense attorney] says something doesn't mean it's true, it means he wants you to think that because it's his job to create doubt.” Numrich made no objection to this comment at the time, but now claims that the prosecutor was improperly disparaging the defense attorney.
All of these issues were then reviewed on appeal. The appeals court found that the prosecutor's repeated references to the independent lab testing was improper, as they were comments 'on matters outside the record.' As to the introduction of defendant's priors, the court found that the defendant's testimony opened the door to the priors.

As far as the comment during closing that the defense attorney's job was "top create doubt" the court found the remark improper.

The trial court found that the prosecutor's statements, when viewed in their proper perspective, were not “overly damaging to the point where the defendant's day in court is being unfairly compromised.” Rather than grant a mistrial, the trial court issued jury instructions informing the jury that any remarks by the attorneys that suggest facts not in the evidence should be disregarded and that no adverse inferences should be drawn from attorneys' objections. And on appeal, the appellate court found the errors to not be sufficient to cause a new trial:

"In the present case, although the prosecutor's trial conduct was somewhat imprudent at times, there is simply no substantial probability that a new trial would have a different result. See id., ¶ 65. Numrich showed all of the signs of intoxication in the one road-side test that he was able to complete. His blood test revealed a blood alcohol content of 0.25, well over the legal limit, and while Numrich raised the specter of sample contamination during cross-examination of the State's witness, when he completed his defense, he had not shown any evidence of actual contamination of his sample. Thus, during closing arguments, the prosecutor was finally on solid ground in commenting that there was no evidence of contamination of the sample. As well, the defense expert admitted that based on the number of drinks Numrich testified to consuming, Numrich's blood alcohol content should have been around 0.12, also well over the legal limit. Because the improper statements of the prosecutor are inconsequential when viewed against the weight of the evidence against Numrich, we decline to order a new trial."

Editors Note: it is troubling that these legal opinions normally fail to identify by name the prosecutor who commits the improper remarks, in my opinion. The opinion does state that the same person who wrote the State's brief was also the trial prosecutor. The author's name is Daniel Kaminsky.


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DUI Appeal - Florida Drug Dog Sniff Not Reliable For Search

This is a non-DUI case, but since many DUI cases also involve drugs, DAD thought it might be of some value to the readers. In Wiggs v. State of Florida, --- So.3d ----, 2011 WL 3300139 (Fla.App. 2 Dist.) the defendant appealed his conviction for cocaine possession, alleging that the drug dog's sniff and alert did not establish probable cause to allow for a warrantless search of his vehicle. The appeals court agreed that the drug dog (whose name is Zuul) alert was insufficent to establish probable cause to search the vehicle, and reversed. The facts at the motion to suppress were as follows:
Just before midnight on August 14, 2007, a Sarasota County deputy stopped Wiggs' vehicle for running a red light on U.S. 301. The deputy detained Wiggs in order to prepare a warning citation. During the detention, a drug-detection dog named Zuul alerted to Wiggs' vehicle. A search of the vehicle revealed the cocaine that forms the basis for the charge in this case.

Wiggs filed a motion to suppress the cocaine in which he argued that Zuul's alert did not provide probable cause to search his vehicle. Wiggs challenged Zuul's reliability and cited evidence of numerous “false alerts” by the dog in the field. At the hearing on Wiggs' motion to suppress, the State presented testimony and documents regarding Zuul's training and field record.

Deputy Indico and Zuul had been summoned to seventeen vehicle stops between May and August of 2007. Ten of these encounters resulted in Zuul alerting on the vehicle with no discovery of drugs. Four post-alert vehicle searches, including Wiggs', resulted in the discovery of drugs. And three encounters ended with no alert.

Deputy Indico and Zuul completed an eighty-hour narcotics training course offered by the Sarasota Sheriff's Office as well as a 400–hour patrol course. In addition, Deputy Indico and Zuul were certified by the Florida Department of Law Enforcement (FDLE) and National Police Canine Association (NPCA). Deputy Indico and Zuul's training and certification process was completed on April 27, 2007.

Zuul was trained as an aggressive alert dog, which means he scratches as his final response. When Zuul picks up a scent he snaps his head around and starts to work toward the scent. He begins sniffing harder, and his breathing then becomes louder, shallower, and quicker. Zuul's body becomes more rigid, and he leans forward. There is an overall change in his demeanor until the final scratch response.

Zuul was trained on blank vehicles and rooms in a controlled environment to ensure he was not falsely alerting. The sheriff's trainers varied the amount of narcotic from .1 grams to over 100 grams. These trainers also used distracters like food, tennis balls, clothing, or anything commonly used or found in a vehicle. The NPCA trainers varied the amount of narcotic from eight to twenty-eight grams. Zuul did not falsely alert to any blank vehicles or rooms during any of his training.

To obtain NPCA certification Deputy Indico and Zuul had to meet specific NPCA training standards, which were admitted in evidence, and achieve 75 percent accuracy. The pair had to find narcotics in two out of four vehicles and from two out of three rooms within a building. The FDLE certification was for apprehension, tracking, and building searches but did not include any narcotics detection training.

After graduation Zuul and Deputy Indico continued to train on a weekly basis. They have been certified every year by the requirements set forth from the NPCA training standards. Deputy Indico kept monthly training and scent detection logs which the State introduced in evidence. The logs covered Zuul's initial training in February 2007 as well as his weekly training up until Wiggs' stop on August 14, 2007.

Deputy Indico also kept a monthly report of Zuul's field activity from April 2007 until August 2007, which the State introduced in evidence. On the positive vehicle alerts that did not result in a drug find, or unverified alerts, Deputy Indico documented any history the vehicle or its passengers had with drugs. Deputy Indico acknowledged that Zuul had not been trained to refrain from alerting to residual odors. Thus, it was important for Deputy Indico to document the history of the driver and vehicle on unverified alerts. Deputy Indico explained that he obtained the histories by interviewing the driver or passengers. If, for example, the driver told the deputy that he had just picked up his brother and his brother was around people smoking marijuana, then Deputy Indico considered the unverified alert a positive alert. Deputy Indico did not document the details of the alleged drug histories.

Deputy Indico began using Zuul to search for narcotics during vehicle stops on May 14, 2007. During the first stop Zuul alerted and a marijuana pipe was discovered. The next day, May 15, Zuul alerted on another vehicle, but nothing was found. Deputy Indico documented that the passenger admitted using cocaine at some time before the stop. On May 17, 2007, Zuul alerted to a vehicle, but no narcotics were found. The deputy documented that the vehicle had a “narcotics history.” Similarly, Zuul alerted on May 18, 2007, and nothing was found, but the driver admitted to smoking marijuana. On June 2 and 9 Zuul sniffed vehicles for drugs but did not alert.

The appeals court discussed the state of drug dog alerts under Florida law and wrote:

"The [Florida Supreme] court explained that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” Id. at S166–67. The court reasoned that the certification and training of drug-detection dogs was not subject to a uniform statewide or nationwide standard. Id. at S167. Additionally, the fact of the dog's training and certification did not account for the possibility of false alerts, handler error, and alerts to residual odors. Finally, allowing the fact that a dog has been trained and certified to provide a prima facie case of probable cause would improperly place on the defendant the burden of production of evidence solely within the control of law enforcement. Id.

Thus, the supreme court adopted a “totality of the circumstances approach” that places the burden of producing evidence to establish the dog's reliability on the State. Id. at S168.

The State's presentation of evidence that the dog is properly trained and certified is the beginning of the analysis. Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures (“unverified” alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog's reliability."

In concluding that this particular dog did not establish sufficient p.c. to search, the court stated:

"Here, the State presented evidence of Deputy Indico and Zuul's national training and certification which included the NPCA training standards that were met. The State established that Zuul had to be at least 75 percent accurate in his certification training and never alerted on any blank vehicles during training. Through Deputy Indico, the State provided details regarding Zuul's police training, including discussion of the various environments and distractions.

The State also produced Zuul's field performance records. However, the dog's field performance records were problematic. Zuul had conducted seventeen vehicle sniffs in the field and alerted fourteen times. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul's alerts uncovered narcotics, Zuul's field accuracy rate is four out of fourteen, or approximately 29 percent. This accuracy rate is clearly insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert."

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DWI Appeal - Texas Retrograde Extrapolation Used to Prove BAC Level Upheld

In Garner v. State of Texas, --- S.W.3d ----, 2011 WL 3278533 (Tex.App.-Dallas) the defendant's appeal dealt mainly with the admission of evidence regrding his alcohol level at the time of driving, using retrograde extrapolation. He complained that the State's expert was unqualified; that the evidence was insufficient to apply the theory; the reliability of retrograde extrapolation; and that the hypothetical evidence was inadmissible because it was not proven top apply specifically to him.
The court of appeals discarded the issue of the reliability of retrograde extrapolation, finding that the alleged error had not been sufficiently preserved for appeal:

"Garner has failed to preserve error for his complaint on appeal as to the reliability of retrograde extrapolation and application of the science by the State's expert. See Stewart v. State, 995 S.W.2d 251, 258 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (concluding appellant had not preserved reliability when only objected on grounds of expert's qualifications). His first statement was “if they're going to qualify him as an expert in blood alcohol, I'd like to take him on voir dire.” The next reference was to “repeat” his request to take the chemist on voir dire. He then requested “a running objection to taking [the expert] on voir dire,” which the trial court denied. At that point, Garner asked for “a 702 hearing then.” To the extent Garner was lodging an objection, his complaint was that the trial court was not permitting him to take the chemist on voir dire, not to the substance of what the voir dire would have revealed."

The court of appeals also found that the defendant failed to adequately preserve the issue of whether the expert was sufficiently qualified to apply retrograde extrapolation:

"When Garner's requests for “voir dire” were not granted, he asked for “a 702 hearing then.” Garner's requests merely referring to “rule 702” are insufficient to give the trial court notice of his objection. See, e.g., Gregory v. State, 56 S.W.3d 164, 182 (Tex.App.—Houston [14th Dist.] 2001, pet. dism'd) (objections based simply on “Rule 702 and Daubert alone” not adequate to inform trial court of specific complaint); Scherl v. State, 7 S.W.3d 650, 651–52 (Tex.App.—Texarkana 1999, pet. ref'd) (objection “under Rule 702, Daubert, Kelly, and Hartman ” insufficient to inform trial court of complaint). The context of Garner's requests does not reveal any additional specificity, nor does Garner's brief on appeal clarify his objection; although his point of error is phrased in terms of qualifications of the chemist, Garner's argument addresses the distinct requirement of reliability of the science of retrograde extrapolation as applied to Garner. To the extent Garner requested “a 702 hearing,” he did not preserve anything for appellate review."

Regarding the use of a hypothetical question, the defense had claimed that the hypothetical was improper because the evidence was never specifically tied to the defendant himself. In overruling this claim of error, the court wrote:

The question drawing Garner's objection occurred during the State's direct examination of the chemist. Specifically, the State asked a hypothetical question: “Let's say we have a male, 5 11, 200 pounds, they're drinking beer or shots, last drink 45 minutes prior, the time of the stop is 2:29, a test was done at 4:36 that showed they had a test result of .12, okay? Now, do you have an opinion to approximately how many drinks would have been in their system at 2:29?” The chemist answered the hypothetical individual would have had between five and eight drinks in his system; five if the man was still absorbing alcohol, and eight if he were already in the elimination phase at 2:29 a.m.

Hypothetical questions are sometimes employed to assist the trier of fact to understand the evidence or to determine a fact in issue. See Taylor v. State, 106 S.W.3d 827, 832–33 (Tex.App.—Dallas 2003, no pet.); see also TEX.R. EVID. 702. Additionally, assumptions on which a hypothetical is based need not be limited to those supported by the evidence; counsel may propound questions that assume facts in accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex.App.—Houston [14th Dist.] 1997, pet. ref'd).

All facts in the chemist's hypothetical here were tied to characteristics of Garner that were introduced into evidence during trial or known to the chemist: Garner's height, weight, the timing of his stop, the timing and results of his blood test, the timing of his last drink, and the type of alcohol consumed. Further, any assumptions in the hypothetical regarding whether all alcohol had been absorbed were appropriate, as the State's theory was that Garner was in the elimination phase. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify regarding this hypothetical situation based on the evidence already before the jury. See Morales v. State, 32 S.W.3d 862, 866 (Tex.Crim.App.2000) (“The reviewing court should, under Rule 702, examine the expert's testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified.”); see also Jordan v. State, 928 S.W.2d 550, 556 (Tex.Crim.App.1996) (standard in applying rule 702 is not whether expert addressed every pertinent issue that could be raised by facts but “whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue”) (emphasis removed).

The conviction was thereafter affirmed.


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OWI Appeal - Wisconsin Says Refusals Can Challenge Stop Too

Thanks to Wisconsin NCDD members Michele Tjader and Karyn Missimer for catching this one. In Re Anagnos, Slip Copy, 2011 WL 3111960 (Wis.App.), deals with whether a driver in a refusal hearing can challenge the lack of reasonable suspicion for stopping the car, and if so, whether there was reasonable suspicion therein.

In Wisconsin, the issues to be decided at a refusal hearing limited to considering: (1) “Whether the officer had probable cause to believe the [defendant] was driving or operating a motor vehicle while under the influence of alcohol ... and whether the [defendant] was lawfully placed under arrest for [OWI];” (2) whether the officer read the proper information to the defendant; and (3) whether the defendant refused to take the test. WIS. STAT. § 343.305(9)(a)5. The State therefore argued that it was improper at the refusal hearing for the circuit court to consider whether the deputy had reasonable suspicion to stop Anagnos.

However, the Wisconsin Court of Appeals held that the lawfulness of the arrest included the lawfulness of the stop itself:

"The refusal hearing statute states that a circuit court may consider “whether the [defendant] was lawfully placed under arrest.” WIS. STAT. § 343.305(9)(a)5.a. It was therefore proper for the circuit court to inquire into whether the deputy had reasonable suspicion to stop Anagnos. Without reasonable suspicion or probable cause to pull over Anagnos, the deputy had no authority to require Anagnos to submit to a chemical test. See Longcore, 226 Wis.2d at 6 (evidence obtained as the result of an illegal traffic stop is inadmissible)."

Having found that the lawfulness of the stop of the vehicle was necessarily included by implication in the 'lawfulness of the arrest', the court then found the stop itself was illegal here. The facts were summarized as follows:

"In the early morning of January 31, 2010, Walworth County Deputy Sheriff Garth Frami was stopped at a red light in the right-hand turn lane of a highway intersection when he noticed Anagnos's vehicle pull out of a Taco Bell and accelerate at “rapid speed” before stopping in the left-hand turn lane of the same intersection. The Taco Bell that Anagnos pulled out of was behind the deputy and to his left. The deputy thought that Anagnos had made an illegal left-hand turn over the median when he pulled out of the Taco Bell. After Anagnos pulled up to the left-hand turn lane of the intersection, the deputy observed Anagnos make a left turn “at a high rate of speed” and without using a turn signal. Based on this observation, the deputy pulled over Anagnos. Anagnos was subsequently arrested for OWI."

The Court of Appeals affirmed the finding of no reasonable suspicion to stop the vehicle. The median itself was only one to two inches high, and had no signs prohibiting a turn. The lack of a turn signal was not illegal, because Wisconsin only requires a signal “[i]n the event that any other traffic may be affected.” Lastly, there was insufficient evidence of the speed ogf the vehicle to establish speeding.

The appeals court affirmed the trial court, concluding that Anagnos's refusal to take the chemical test was lawful as the deputy did not have reasonable suspicion to stop Anagnos.


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