DUI Appeal of the Day (DAD) - Prior Refusals Do Not Qualify as a 'Prior' for DWIs

This case comes to DAD's attention thanks to New Jersey member Steven Hernandez. In State of New Jersey v. Ciancaglini, --- A.3d ----, 2011 WL 148910 (N.J.), the defendant was sentenced as a third-timer, based upon a prior conviction for refusing a breath test. The Supreme Court of New Jersey unanimously held that a prior refusal was not a prior conviction for sentencing purposes. The case itself was based upon a statutory interpretation of the language in the DWI statute referring to prior 'violations'. In New Jersey, the DWI statute and the Refusal statute are separate and distinct from each other. Employing the "well-established principle that penal statutes must be strictly construed", the court found that the term 'violations' was too vague to include prior refusals, as opposed to prior DWIs only. Said the Court:

"Moreover, while the record was not fully developed as to whether defendant's 2006 refusal conviction was incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have had to do so in clearer language."

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Sleeping While Intoxicated-Not a Crime in Pennsylvania

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Last month, we learned that sleeping at the wheel while intoxicated isn't a crime in New Mexico. The issue in cases like this is whether the person asleep behind the wheel exercised sufficient control over the vehicle and elicited an intent to operate the vehicle. This very same issue was recently addressed by a court in Pennsylvania. As explained in this Times Leader article, the accused was found asleep behind the wheel of a vehicle with the engine running. When discovered by the police, he smelled strongly of alcohol and a subsequent blood-alcohol test later revealed he had a level of 0.197, nearly 2 times the legal limit. The Pennsylvania court reached the same decision as the New Mexico court, concluding that there was insufficient evidence to establish that that the accused actually operated the vehicle while intoxicated. The rationale for the judge's decision is explained in the article:

The vehicle was parked at the time Verdekal, 27, of West St. Mary’s Road, was discovered, and police could not prove that he had actually operated the car in an intoxicated state...

The key issue in the Verdekal and other cases revolves around a provision within the drunken driving statute that permits police to charge a driver - even if the vehicle is not moving - as long as the officer can show the operator was in “actual physical control” of the vehicle. The problem for police has been in how appellate courts have interpreted what constitutes “actual physical control,” McMonagle said...

(T)he courts have held that police must look at the “totality of the circumstances” in making that call. There must be some other evidence – such as the car being stopped in the middle of the road, or its tire up on a curb – that would indicate the driver had driven the vehicle while intoxicated prior to the arrival of police at the scene.

Once again, the court's decision focused on evidence of control over the vehicle, rather than simply the fact that he was found behind the wheel of a stationary vehicle while in an intoxicated condition. This makes sense. After all, the intent behind DUI laws is to prevent people from driving while intoxicated, since that's when the risks inherent in driving while intoxicated kick in. If you drive a car while under the influence of alcohol, you put others on the road at risk. However, that danger is not present when a person sleeps in a vehicle while intoxicated. For that reason, many states have adopted the rationale behind the New Mexico and Pennsylvania courts' decisions. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Colorado Springs Crime Lab-Another Case of Sloppy Testing

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Another day, another crime lab making sloppy errors that deprive innocent people of their liberty. This time it's the Colorado Springs crime lab. In April, the Colorado Springs crime lab errors were disclosed to the public. It was revealed that the results of an internal investigation revealed that 167 tests were flawed in 2009 and discovered 39 more flawed tests from 2007. All of the errors were the work of a chemist who had since left the department. District Attorney Dan May explained that "only" 9 of the 206 faulty tests actually affected the rights of those accused of committing a crime. In other words, only 9 people that we know of--people who were potentially innocent of any crime--had their lives ruined because of the egregious errors of Colorado Springs lab technician. Questions still remain following the announcement of the massive string of errors, as explained in this article from the Colorado Springs Independent:

Senior chemist Bobby Striebel frankly says he can't explain how a colleague of seven years made mistakes that boosted the alcohol content of some blood samples by more than 40 percent.

"The error was very difficult to identify," he says, with no apparent pattern or equipment failure to explain.

The lingering uncertainty is uncomfortable. Tim Bussey, a Colorado Springs defense attorney who specializes in DUI cases, puts it bluntly: "If they never really identified the problem, how do they fix it?"

These tests were caused by human error or malfeasance. Who knows how many errors are caused by faulty equipment or materials. The bottom line: blood and breath testing for DUIs is a horribly inaccurate "science" for any number of reasons. The continuing pattern of errors in labs across the country is simply further evidence of that fact. Perfection isn't possible and it's not required, but predictable accuracy is. Until that standard is met, innocent people will be convicted of drinking and driving offenses and injustice will continue to reign supreme. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Chicago Tribune Castigates Lawyers and Judges for Allowing "Dangerous Drivers" to Drive

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A few weeks ago the Chicago Tribune suggested in this article, "Judges don't slow 100 mph speeders" that Illinois judges, and to an extent, defense attorneys, were responsible for excessive leniency toward chronic and dangerous drivers. It is suggested in the article that in some counties, judges tend to give breaks to "dangerous drivers" who appear with attorneys:

Prosecutors in DuPage, Kane, Lake, McHenry and Will counties insist they rarely accept plea deals calling for supervision for people driving 100 mph or faster. Most blame judges for agreeing to it.

In DuPage County, where 62 percent of triple-digit speeders get the deal, State's Attorney Joe Birkett said those speeders usually impress judges by getting attorneys.

"Unfortunately, the mere fact they step up with a lawyer, the judge will take into consideration that this person is taking this seriously," Birkett said.

Judges in those counties, for their part, say they look at every case individually. They don't want to be overly harsh. Convictions can cost a driver his or her license, which could mean losing a job. And, judges often face a heavy volume of cases, with pressure to move through them quickly and assign fines.

Unfortunately, the the article is based upon incorrect facts and assumptions that call into question the conclusions reached therein. For example:

• Contrary to the claim in the article, sentences of court supervision do not keep the tickets ‘off’ the drivers’ records--in fact, the Tribune was easily able to locate the records of drivers who received this sentence
• The article refers to people convicted of speeding as "dangerous drivers," but in the article, the Tribune was unable to locate any evidence that drivers who received a sentence of court supervision had been in an accident after receiving that sentence

Another important omission--the article fails to mention that in 2000, Jesse White and the named prosecutors successfully lobbied to make speeding 40 mph above the limit a crime – a Class A misdemeanor punishable by up to 1 year in jail. Thus, anyone convicted of this ticket is now a convicted criminal in the eyes of the law, and that conviction follows a person for their lifetime. Such a conviction is a strong barrier toward future employment. At that time, the Illinois State Bar Association opposed making speeding a crime, predicting that it would cause judges to offer court supervision more frequently, due to the harsh consequences of a criminal conviction. And, lo and behold, that's exactly what appears to be happening. Finally, Jesse White’s suggestion that we should be treating speeders as convicted criminals is wrong. The suggestion that a speeding driver with no accidents on his record should be treated more harshly than a person caught stealing, or criminally damaging property, or assaulting or battering another (all also Class A misdemeanors) is simply wrong. We do not punish people for what might or could happen. Speeding should be discouraged--not demonized. **Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now**