DWI Law- Cheap DWI Lawyer's Client Allowed to Vacate Jail Sentence and Plea

What happens when a client comes to you after he has already hired another lawyer, and has already pleaded guilty and been sentenced? Most attorneys will turn that person away, and for good reasons. However, there may be another avenue available. In People v. Rivera, --- N.Y.S.2d ----, 2012 WL 17681 (N.Y.A.D. 1 Dept.), 2012 N.Y. Slip Op. 00043, the defendant hired a second attorney to vacate the plea, and the trial court agreed. On appeal, the court affirmed, writing:

"The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404 [1995] ).

"Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.


"The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case."

The appeals court unanimously affirmed the motion to vacate the plea. 

Editor's note: This case should serve as a warning to cheap-priced 'dumptruck' lawyers that fail to perform an adequate investigation prior to disposing of a case, that such conduct might fall below the standards of practice in their community.

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DWI Law - Woman Convicted of DWI Without Alcotest Loses 'High Heels' Defense

As reported in the New Jersey Law Journal:

With all the attention given to the debut of the high-tech Alcotest, it's easy to forget that drunken driving convictions can still be based on old-fashioned field sobriety tests.

That means a woman was justly convicted, without use of Alcotest results, based on unstable driving and deficient motor skills at a traffic stop that she blamed on a health disorder and on wearing high-heel shoes, the Appellate Division ruled Tuesday in State v. Salkewicz, A-0224-10.

"We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance in the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt," Judges Clarkson Fisher Jr. and Linda Baxter said in affirming the conviction.

Barbara Salkewicz was stopped on Oct. 3, 2008, in Manchester Township by Patrolman Adam Emmons, who had observed her repeatedly crossing the center line on Route 70 and driving erratically. She admitted to having had two glasses of wine.


Emmons had her perform sobriety tests, which she failed. She was unable to walk a straight line heel to toe or to stand with her feet together and raise one foot off the ground as directed. Taken to a police station, Salkewicz agreed to an Alcotest, the results of which showed a blood-alcohol content of 0.15 percent.

At her Manchester Township trial, Salkewicz's attorney, Evan Levow, objected to the admission of the Alcotest results because the administrator, Sgt. James Delane, failed to first observe her for a minimum of 20 minutes.

Municipal Court Judge Phillip Miller allowed the results to be admitted. Salkewicz entered a guilty plea conditioned on preserving her right to appeal. Miller agreed to stay the sentence.

Ocean County Superior Court Judge Ronald Hoffman remanded the case, saying Miller should have considered whether he could have convicted Salkewicz on Emmons' observations and Salkewicz's difficulties with the sobriety tests.

At the second trial, the municipal prosecutor, Valter Must, said he could no longer rely on the Alcotest results since he could not guarantee that Delane waited the required 20 minutes.

By then, Manchester had a new judge, Daniel Sahin, who based his decision to convict Salkewicz on a videotape of the traffic stop.

Levow had argued that Salkewicz was unsteady because she was wearing high heels and suffered from Graves disease, an autoimmune disorder, and that she momentarily drove erratically because she was reaching down to pick up something she had dropped.

Salkewicz again appealed and Hoffman upheld the conviction. Must had no authority to suppress the Alcotest results but the videotape showed ample evidence that Salkewicz was under the influence of alcohol, he said.

Hoffman said there was no way to tell whether high heels were to blame, since Salkewicz was wearing long slacks that went all the way to the ground. He noted that a state police expert's report did not state that said Graves disease could cause a person to be unsteady.

On appeal, Fisher and Baxter said that Must was within his rights not to introduce the Alcotest results at the second trial, and whether they were admitted or not made no difference.

"Here, the evidence presented before the municipal court was more than sufficient to establish that defendant was under the influence of alcohol while operating her vehicle."

Fisher and Baxter acknowledged that Salkewicz claimed that she had dropped something and that she couldn't do the tests well because of her high heels and her Graves disease, but they declined to use that to overturn the conviction.

"Although a defendant may proffer an innocent explanation for his or her conduct, that explanation will not exclude a finding of guilt when the evidence is sufficient to leave the fact-finder firmly convinced that the defendant is guilty of the offense charged," they said.

Levow says he will ask the panel to reconsider its decision because it did not have the benefit of being able to review the videotape.

"It's bizarre," Levow, of Levow and Associates in Cherry Hill, says of the ruling. "I'm going to ask for reconsideration because they didn't have all the evidence. They gave no weight to the fact that she has a neurological condition and was wearing high heels."

Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling demonstrates that drunken drivers can still be convicted based on visual evidence. "It's part of the statute," he says. "People forget about that."

--- A.3d ----, 2012 WL 17834 (N.J.Super.A.D.)

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DWI Appeal - South Dakota Grants New Trial When Attorney Ineffective

In Engesser v. Dooley, --- F.Supp.2d ----, 2011 WL 4625986 (D.S.D.) the defendant was convicted of vehicular homicide. His appeal was denied. His first writ for habeas corpus was denied. His habeas relief in federal court was denied, and then the denial was affirmed on appeal. His second writ of habeas corpus was granted, but then reversed on appeal. His third state writ was denied. He then filed his second federal writ for habeas relief, and the district court in the instant case granted the petition.


The factual predicate of defendant's claim for a successive filing of a federal habeas petition (that he had newly discovered evidence that was not available during the previous filings), was made through the testimony of a new witness, who testified at the writ hearing that the defendant was not driving vehicle at time of crash. This witness, who testified he saw a woman driving vehicle just minutes before fatal crash, had not been contacted about the case until a few weeks prior to federal habeas evidentiary hearing, and his name was not listed as witness to crash or events preceding it.


The second predicate (i.e. a constitutional violation occurred during his case) was that. but for his attorney's ineffective assistance in failing to investigate and call two other eyewitnesses as witnesses to the fatal car accident at defendant's criminal trial for vehicular homicide and vehicular battery, no reasonable factfinder would have found defendant guilty; if the trial attorney had interviewed eyewitnesses and called them as witnesses, their testimony would have directly contradicted state trooper's assertion that defendant was driver of vehicle in accident, and only state court to have considered eyewitnesses' testimony and to weigh testimony against evidence presented at trial found their testimony would have changed the outcome of the trial.


Because of the above, the district court found that sufficient evidence established a violation and granted the petition.


Editor's note: this case represents a wonderful blueprint for how to prove up a successive petition for federal habeas relief. It is also a valuable lesson for attorneys as to their obligation to interview witnesses prior to trial and to call witnesses at trial when necessary.

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DWI Law - New York Says Falure To Cross on Field Tests Not Ineffective

In People of the State of New York v. Biro, --- N.Y.S.2d ----, 2011 WL 2279160 (N.Y.A.D. 4 Dept.), 2011 N.Y. Slip Op. 04856 the defendant was convicted of DWI and he claimed that his lawyer was ineffective. The lawyer did not challenge the legality of the stop, probable cause for the arrest, nor did he cross-examine the arresting officers on the field tests or chemical tests. The appellate court rejected that proposition:

"Although defense counsel did not cross-examine the officers concerning administration of the field and chemical sobriety tests, defendant fails to identify a single error in those tests with respect to which defense counsel should have inquired. Moreover, the record establishes that defense counsel's strategy was to challenge the People's allegation that defendant was operating the vehicle in question, an element of the charges against him. In accordance with that strategy, defense counsel elicited testimony during cross-examination of the officers that the vehicle was stopped and the engine was off when they approached it, that the vehicle appeared to be disabled and that the vehicle may have been operated by defendant's father, who was sitting in the passenger seat thereof."

Very little in regards to the facts was recited in the opinion, other than the fact that the vehicle was parked partially in the traffic lane of a roadway, thereby creating a traffic hazard. Additionally, the record also purportedly established that the police had probable cause to arrest defendant based on, inter alia, the odor of alcohol and the open container of alcohol in the vehicle, defendant's admission that he had been drinking and his failure to pass field sobriety tests.

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DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense." 

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.” 

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.” 

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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DWI Law - Texas Holds HGN Cannot Be Used to Prove Blood Alcohol Content

In Jones v. State of Texas, Not Reported in S.W.3d, 2011 WL 5607832 (Tex.App.-Dallas), the defendant on appeal complained that the trial court erred when it allowed the police to correlate the results of an HGN test to a BAC of 'over 0.08'. Specifically, the appeals court wrote:

"The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769; Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). It is error to allow such testimony at trial. See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ “ was impermissible correlation of defendant's performance on HGN test to blood alcohol content); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees. Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues. Odom continued:

ODOM: A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point. So there is a total of six clues on this HGN or eye test. There are six clues. A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE: There are statistics that go along that you talked about?

ODOM: Yes, if they meet that decision point which in this case is four. If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE: Your Honor, I am going to object to that. That is improper. In Texas it is not recognized as being equivalent to any number. It would be on BAC. That is case law.

COURT: I think that is cross examination. Overruled."

The appeals court found that the admission was error. The appeals court then had to decide whether the error was harmless. The court reviewed the remaining testimony, noting that this remark was only made once out of 173 pages of testimony (who said length doesn't count?). The appeals court also concentrated in particular on the defendant's expert Dr. Lance Platt, summarizing his testimony as follows:

"After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test. Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing. His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas. According to Platt, there are three parts to an investigation for driving while intoxicated: vehicle in motion, personal contact, and sobriety testing. Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

"Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system. Platt also discussed the heel-to-toe walk and the one-legged stand tests overall. Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest. When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

"On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested. Platt testified without objection that, in his research, 91 .6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher. Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.” He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests. Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests."

The appeals court concluded that the error was harmless:

"Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury. The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages. The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment. The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening. The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station. Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night. After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial."

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DWI Law - Minnesota OKs Stop From Stale Computer records

In State of Minnesota v. Nelson, Not Reported in N.W.2d, 2011 WL 6015167 (Minn.App.) a police officer ran the plates of a vehicle and the computer reported the plates expired, even though the plates appeared to have valid and current tags. The cop stopped the car, and determined that the tags were valid, but that the records of the Department of Public safety were not current (by several days). During the stop Deputy Silgjord noticed indicia of intoxication and arrested appellant for driving while impaired. Appellant was charged with first-degree driving while impaired and first-degree driving while impaired (over .08). Appellant moved to suppress the evidence from the stop, arguing that the stop was unconstitutional. The district court upheld the stop and denied appellant's motion and this appeal followed.

In denying the appeal, the majority wrote:

"We recently held that a discrepancy between displayed license-plate tabs and information derived from an officer's onboard computer system constitutes an objectively reasonable basis to initiate an investigatory stop. State v. Cox, ––– N.W.2d ––––, ––––, 2011 WL 5903399, at *1(Minn.App. Nov. 28, 2011). Our holding in Cox compels a similar result here. Upon observing a discrepancy between the displayed license-plate tabs on appellant's vehicle and the information contained in the state's computer database, the officer had an objectively reasonable basis for the stop. The district court therefore did not err by denying appellant's suppression motion."

The dissent wrote:

"[T]he United States Supreme Court has held:

[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

 Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979). Investigatory stops to check a vehicle's registration are therefore unconstitutional, unless supported by reasonable, articulable suspicion. By allowing an officer to stop a vehicle that is displaying current, legally purchased, properly affixed registration tabs, the majority has upheld a stop based upon the state's failure to keep its records current. I am aware of no published caselaw—save for this court's recently released opinion in Cox—allowing the police to conduct a seizure based solely on a delayed updating of the state computer system.FN2 Yet that is precisely what the majority has done, first in Cox and again here. I wish to take no part in the upholding of this stop."

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DWI Law - Stop for Touching Fog Line Criticized

Metcalf v. Commissioner of Public Safety, Not Reported in N.W.2d, 2011 WL 6015361 (Minn.App.) upheld a stop of a vehicle for touching the centerline and fogline twice. Of course, other jurisdictions allow for such a stop, but the dissent brings out why this one is so ridiculous. I repeat the dissent in its majority:

"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.

In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.

The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.

Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.

At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."

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DWI Law - Minnesota Says Pre-Arrest Silence Can Be Used at Trial

In Minnesota v. Seebeck, --- N.W.2d ----, 2011 WL 6306620 (Minn.App.) a sheriff's deputy found Shawn Seebeck at two o'clock in the morning, alone, drunk, and wandering away from an unoccupied pickup truck on Highway 23. Seebeck agreed with the deputy that he should not have been driving because of his license revocation, suggested that he was not too impaired to drive, performed field sobriety tests, was arrested for drunk driving, and then submitted to a blood test without ever suggesting that he actually had not been driving. At the impaired-driving trial, the state emphasized Seebeck's omission to the jury, which convicted him. The appellate court was asked to decide whether the federal and state constitutions prohibited the state from emphasizing Seebeck's silence to bolster its trial position that, by saying nothing, Seebeck tacitly verified the deputy's understanding that he had been driving. Additionally, the court was also asked to determine whether the prosecutor plainly erred by misstating the law of physical control of a vehicle under the impaired-driving law. 

With regards to pre-arrest silence, the court wrote:

"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.

Regarding the use of the post-arrest silence, the court stated:

"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.

"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."

Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:

"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.

The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.

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DUI Law - Connecticut Says Facebook OK to Revoke Probation

In Connecticut v. Altajir, --- A.3d ----, 2012 WL 3670 (Conn.) the defendant was originally sentenced to five years of jail, after killing her passenger in an alcohol related car accident. The defendant was 19 years old at the time of the incident. All but one of those years was stayed in favor of probation. After serving her year of jail, she was ordered to operate only cars with an interlock ignition device and that she not operate a motor vehicle without a valid license.

While on probation in 2009, she was involved in a minor motor vehicle accident. The accident did not involve alcohol use; police determined, however, that she was operating a vehicle without the requisite ignition interlock device and that she had not restored her driver's license following its temporary suspension. The defendant subsequently admitted to violating the special conditions of probation that prohibited her from engaging in that conduct.

At a subsequent dispositional hearing, the state proceeded to emphasize that the defendant's Facebook site showed numerous instances of defendant leaving the State (without permission) and "worshipping at the altar of alcohol and debauchery and lewd behavior." The State eventually admitted, over objection as to foundation, multiple pictures in support of the allegations.

The trial judge revoked probation and imposed 3 additional years of jail. On appeal, the Supreme Court of Connecticut decided that the use of the Facebook photos was properly admitted. 

“A revocation of probation hearing has two distinct components.... A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.... Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.”

"In the present case, the defendant has admitted to violations of the conditions of her probation and contests only the trial court's decision to revoke probation and reimpose three years of her original prison sentence. “The standard of review of the trial court's decision at the [dispositional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.”

"It is a fundamental sentencing principle that a sentencing “judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In keeping with this principle, we have recognized that “[a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.... Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information.” (Citations omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 20, 912 A.2d 992 (2007)."

We have cautioned, however, that “[t]he trial court's discretion ... is not completely unfettered. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability.” (Internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 650, 858 A.2d 767 (2004). As we have long recognized, in keeping with due process, a defendant “may not be sentenced on the basis of improper factors or erroneous information.” State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985). Further, “courts must be concerned not merely when a sentencing judge has relied on demonstrably false information, but [also] when the sentencing process created a significant possibility that misinformation infected the decision.” (Internal quotation marks omitted.) United States v. Lemon, 723 F.2d 922, 933 (D.C.Cir.1983). Nonetheless, “[a]s long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.”

"With respect to the threshold inquiry into reliability, we note that “[t]here is no simple formula for determining what information considered by a sentencing judge is sufficiently reliable to meet the requirements of due process. The question must be answered on a case by case basis.” (Internal quotation marks omitted.) State v.. Eric M., supra, 271 Conn. at 651. We have repeatedly affirmed, however, a general principle relevant to this case, namely, that “the absence of a denial itself provides an important [indicium] of reliability.” (Emphasis added.) United States v. Bass, 535 F.2d 110, 121 (D.C.Cir.1976) (“[T]his appellant did not dispute the truthfulness of the allegations at sentencing.... We see no reason to bar sentencing judges from considering relevant information whose accuracy is not disputed.”). "

Here, the court noted that both the defendant and her defense counsel never denied the truth of the allegatiosn, i.e. that the photos were genuine and that the time frame was correct. Rather, the defense counsel simply questioned the foundation for the photos. The Supreme Court used this 'absence of denial' against the defendant:

"This approach is in accord with a presumption applied under the general rules of evidence: “When a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part.... Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that silence gives consent the inference of assent may be made only when no other explanation is consistent with silence.” FN6 (Citations omitted; internal quotation marks omitted.) State v. Leecan, 198 Conn. 517, 522–23, 504 A.2d 480 (1986)."

Using the above (and more) the court found the Facebook images reliable and the revocation of probation appropriate:

"The evidence of reliability proffered by the state here is, at best, limited, and certainly would not be sufficient under the rules of evidence at a trial. The state contends that under the much less stringent standard for admissibility at probation proceedings its uncontested representation to the court that the defendant had darker colored hair after her incarceration, consistent with her appearance in some of the photographs, coupled with the presence of upload dates on the photographs, provided an adequate basis for the court to rely on the photographs as depictions of the defendant's behavior during probation.FN7 In refutation, however, the defendant has offered even less. At no point did the defendant deny the state's clear and repeated assertion that these photographs represented her behavior while on probation. Strikingly, in her allocution the defendant made no attempt to counter the state's accusation that she appeared in these photographs “again ... worshipping at the altar of alcohol and debauchery and lewd behavior” or to respond to the court's expressed bafflement that “she still has the audacity to go back on Facebook and show herself in a condition of being intoxicated.” Instead, the defendant admitted, partially through counsel, that she continued to drink alcohol and denied only the suggestion that she ever drove after drinking."

Therefore, the sentence and judgment of the trial court was affirmed.

Editors note: Counsel would be well advised to caution all clients that the posting of information on social networks might be used against them in any criminal (or civil proceeding).
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DUI Law - Juror Dating Fellow Prosecutor No Big Whoop Says Texas

In Hammett v. State of Texas, Not Reported in S.W.3d, 2011 WL 5189109 (Tex.App.-El Paso), the defendant was convicted of driving while intoxicated and was sentenced to 180 days in jail, probated for 18 months. On appeal, Hammett asserted that he was denied a fair trial because the foreperson on the jury failed to disclose that she was dating a prosecutor. On appeal, the court affirmed the conviction:

"The record does not establish that the foreperson withheld any information. She truthfully stated both on her questionnaire and during voir dire that she knew a particular prosecutor. The juror questionnaire is not in the record, but there is nothing to indicate that the questionnaire asked specific questions about the nature of a prospective juror's relationship with anyone, and even if it did, counsel still had an obligation to follow-up with oral questions. Hammett's trial counsel chose not to ask about the nature of the foreperson's relationship with the prosecutor. We also note that the venire was sworn in by the judge before voir dire, and we take judicial notice that the oath requires prospective jurors to answer truthfully any questions propounded to them. It does not impose a duty on the prospective jurors to volunteer information."

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DWI Law: Proximate Cause and Multiple Drunk Drivers

In a Vehicular Homicide case, or a Great Bodily Harm DUI, when the other driver has also been drinking is that evidence admissible? DAD has covered this issue with varying results. In State of Minnesota v. Nelson, --- N.W.2d ----, 2011 WL 5829025 (Minn.App.) the defendant was charged with vehicular homicide. Both the defendant's vehicle and the victim (Carlson) vehicle drove off the same curve in the road. The defendant struck and killed the victim there and then fled the scene. Four hours late the defendant/appellant's family reported the accident and took him to the hospital for examination. Becker County Sheriff Deputy Bruce Anderson met appellant at the hospital, noticed that appellant showed signs of intoxication, and read him the implied consent advisory. Appellant's blood alcohol concentration was tested at .056 and .058. The victim's BAC was measured as 0.15.


The district court granted the state's motion to exclude any evidence of Carlson's alcohol consumption; although Carlson's BAC was measured at .15 following the accident and witnesses had told police that Carlson was so inebriated earlier in the evening that friends had convinced him to leave his vehicle at the bar.


The appeals court held that in a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the district court abuses its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption. Discussing the concept of proximate cause, the court stated:


"For a party's negligence to be the proximate cause of an injury, the act must be one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. There must also be a showing that the defendant's conduct was a substantial factor in bringing about the injury."

* * *
"But there can be more than one cause of a resulting harm, and the negligence of a second party may affect the determination of proximate cause as to a first party's negligence. “An intervening, superseding act breaks the chain of causation set in operation by a defendant's negligence, thereby insulating his negligence as a direct cause of the injury.” Hofer, 614 N.W.2d at 737 (quotation omitted). “A superseding, intervening cause of harm is generally the act of a third party occurring after a defendant's negligent act and operating as an independent force to produce the injury.” Id. (quotation omitted). Or, “[w]hen the acts or omissions of two or more persons combine to bring about a harmful result, those acts or omissions are concurring causes of the harm.” Id. In some cases, the negligence of the parties is so intertwined that they “combine to bring about a harmful result[.]” Id. Thus, when “the negligence of each participant is so related to the negligence of the other” and the result of their conduct was foreseeable, one of the participants may be charged with the causal negligence. C.P.W., 601 N.W.2d at 208 (rejecting claim that a juvenile driver who initiated a car chase was not culpable for the death of several others whose vehicles were struck by the vehicle being chased, after that vehicle entered an intersection on a red light, even though the juvenile driver was able to stop before the intersection); Hofer, 614 N.W.2d at 738 (ruling that the combined acts of a negligent driver entering an intersection on a red light and a pedestrian running in front of a bus while a “Don't walk” signal was displayed, followed a natural sequence that resulted in the pedestrian's death, which “was a foreseeable consequence of each act of negligence” that did not excuse the driver's negligence); see also State v. Munnell, 344 N.W.2d 883, 887 (Minn.App.1984) (ruling that contributory negligence of victim was not a defense to a charge of criminal vehicular operation in an accident involving a victim who was lying drunk on a county highway when struck by a vehicle that had crossed the center line); Ramirez v. Miska, 304 Minn. 4, 7, 228 N.W.2d 871, 873 (1975) (stating that if two parties are negligent in causing a collision, this “does not compel a finding that the negligence of each is a proximate cause”)."


It also held that, when the intertwined negligent conduct of two motor vehicle drivers results in charges of criminal vehicular homicide being brought against one driver, the district court's jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver. The appeals court wrote:


"With regard to the criminal vehicular homicide charges, the district court instructed the jury that an element of each charged offense was that “the defendant caused the death of Christopher Wade Carlson.” Appellant's attorney had proposed to further define “causation” by including the following statement: “A ‘direct cause’ is a cause that had a substantial part in bringing about the accident.” Appellant's attorney argued that a more complete definition or explanation of negligence was necessary in this case. We agree."

"The causation instruction given by the court was accurate, but it did not assist the jury in deciding whether appellant was criminally culpable for causing the accident. The jury necessarily had to decide the conduct of appellant and Carlson in relation to each other in order to determine whether appellant would be held criminally responsible for the death. As noted earlier, seconds before impact, appellant's vehicle approached Carlson's ATV from the rear at a high rate of speed, but Carlson's ATV also veered from its path and into appellant's path moments before impact. On these facts, the jury needed to be instructed on the parties' fault as it related to whose conduct played a substantial factor in causing the accident. Because the caselaw defines causation in criminal vehicular homicide or operation cases as “something that played a substantial part in bringing about the death or injury,” Jaworsky, 505 N.W.2d at 643, appellant was entitled to have this definition included in the jury instructions. Further, given the evidence on the victim's conduct of veering off the highway and into the path of appellant's vehicle just 50 feet before the collision, the victim's negligence could have been an intervening, superseding cause that necessitated a jury instruction on that aspect of causation. Without being properly instructed here, the causation instruction that the jury received did not fairly or adequately present the issue of causation to the jury. See Koppi, 798 N.W.2d at 364."

Based upon the above, the appellate court reversed the conviction and remanded for a trial consistent with its ruling.

EDITOR's Note: Other states do not use the 'substantial factor' phrase in their definitions of proximate cause, and such a phrase may have affected the appellate court's decision about 'intertwining causes'.

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DWI Laws - Texas Dismisses Case Based on Illegal Stop

In State of Texas v. Kerwick, --- S.W.3d ----, 2011 WL 5247890 (Tex.App.-Fort Worth) Officer Jeffrey J. Bradford was dispatched to a bar on North Main Street in Fort Worth in response to a call about several people fighting in front of the bar. When Officer Bradford arrived at the bar, several people were standing outside in front of the bar. Officer Bradford made contact with the person he believed to be the person who had called the police. The person was the owner of a damaged vehicle. That person pointed to a vehicle parked on the street across from the bar and said, “There they are right there. There they are, there they are.” Officer Bradford walked over to the vehicle as it started moving northbound on the street and stopped the vehicle by yelling at the driver, ordering her to stop. Officer Bradford testified that he “believed that they—at that point they were involved in an offense.”

In affirming the granting of a motion to suppress, the appeals court wrote:

"In short, the record before us simply contains no facts to enable either the trial court or this court to objectively evaluate either Officer Bradford's belief that the person who said, “There they are right there. There they are, there they are,” was the person who had called the police or his belief that Appellee was “involved in an offense ... [—a]n assault, criminal mischief, or both.” No facts exist in the record to enable the trial court or this court to assess whether either of these beliefs by Officer Bradford were objectively reasonable. See Ford, 158 S.W.3d at 493. Without specific, articulable facts, a court has no means of assessing whether an officer's opinion is objectively reasonable. Id. Without specific, articuable facts, a detention cannot be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular seizure in light of the particular circumstances. Id. And when such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. Id. Allowing a police officer's opinion to suffice in specific facts' stead eviscerates Terry's reasonable suspicion protection. Id."

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DWI Law - Texas Says "Tell the Officer Yes" is Not Coercive Breath testing

In Leal v. State of Texas, --- S.W.3d ----, 2011 WL 5223122 (Tex.App.-Dallas) the defendant, who spoke Spanish only, was arrested for DWI. Appellant Leal was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings. Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording. Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording. Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath. Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath. Tell the officer ‘Yes'—.” Officer Gabriel then immediately asked appellant herself, “yes or no.” Appellant nodded yes. Thereafter, the videotape shows appellant providing two breath samples.


On appeal, the court held that the playing of the tape in the manner described did not cause the breath test to become nonconsensual. They wrote:

"Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary. The statutory warnings were on an enlarged form posted on the wall just inches from appellant. Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish. Several times during the four-minute tape, appellant looked at the form as if he were reading it. Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously. Moreover, appellant could see the recording was interrupted. Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample. Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress."

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DUI Law - Lost Videotape Lets Driver Win in Missouri

In Zahner v. Director of Revenue, State of Missouri, --- S.W.3d ----, 2011 WL 4025275 (Mo.App. W.D.) the defendant was arrested for DUI by an Officer Pierce. He filed for review of his suspension and was given a hearing in the trial court. According to Officer Pierce, Zahner refused to take the test. Zahner maintained that he never refused to take the test, and Zahner claims that Officer Pierce never read him the implied consent warning required by law.

At the hearing, Officer Pierce testified that any confusion over whether he had read the implied consent warning to Zahner and whether Zahner refused the test could be cleared up by a video recording of Zahner's booking at the police station. Notably, the trial court instructed the Director to produce the videotape—strongly suggesting that the trial court was not convinced that Officer Pierce's testimony alone was sufficient to convince the trial court that Zahner had been read the implied consent warning or otherwise refused the breath alcohol test. The trial court continued the hearing so that the videotape could be produced to the trial court for review. A week later, however, counsel for the Director advised the trial court that the videotape had been “destroyed as part of the post arrest routine.”

In its judgment, the trial court noted, in pertinent part:

The Court is also troubled by the officer's assurance that the recordings were available only to be advised one week later that the recordings had been “... destroyed as part of the post arrest routine.” The Court chooses not to infer that the destruction occurred after the officer's assurance.

....

The “policy” here alleged causes the Court to ask, “If the recordings are not preserved for evidentiary purposes then why are they made in the first instance? Are they gleaned to preserve evidence favorable to the arresting agency in support of their cases and the rest purged so as to be unavailable to a party opponent?”

Left without production of the corroborating evidence promised by Officer Pierce, the trial court weighed the credibility of the conflicting evidence and ruled in favor of Zahner, entering judgment requiring that the Director reinstate Zahner's driving privileges.

On appeal, the court wrote as follows:

"Even though the spoliation doctrine may not be applicable to the Director for the conduct of law enforcement officers, this case illustrates the practical dilemma a law enforcement agency faces when it destroys relevant evidence—i.e., the risk that the arresting officer's testimony may not be accorded the credibility that the officer (and the Director) might like for such testimony to receive.^FN3

FN3. When faced with destroyed evidence—but not applying the spoliation doctrine—the trial court is free to “believe all, part or none of the officer's testimony” and is “free to consider the failure to produce the video and audio recordings in its decision.” Douglas v. Dir. of Revenue, 327 S.W.3d 555, 557 n. 3 (Mo.App.S.D .2010).

Ruling in favor of the driver, the court concluded as follows:

"The evidence in this case was hotly contested on numerous disputed facts. But, the trial court did not limit either party's opportunity to present evidence in support of their respective positions. Unlike the Prins and Baldridge cases,^FN5 the trial court permitted the Director to present all evidence in her possession supporting the administrative revocation of Zahner's driving privileges and likewise permitted Zahner to present his rebuttal evidence before the trial court issued its judgment. Further, the trial court included language in its judgment that it was not inferring bad faith in the destruction of the relevant videotape. In fact, the trial court does not even mention the spoliation doctrine in its judgment.^FN6 However, in the trial court's judgment, the trial court notes that it found the destruction of the videotape as “troubling” and “odd” enough such that “under the circumstances of this case,” the trial court refused to believe the Director's evidence supporting administrative revocation of Zahner's driving privileges and instead chose to believe Zahner's rebuttal evidence.^FN7 This is not to say that a different trier of fact could not have concluded differently. The Director made a prima facie evidentiary showing in support of administrative license revocation, and the trial court could have chosen to accept the Director's evidence in support of the revocation of Zahner's license—with or without corroborating video evidence. But, the trial court heard conflicting evidence on the claim that Zahner refused the breath alcohol test and whether Zahner had been properly warned of the Implied Consent Law, and after weighing all of the conflicting evidence, this trier of fact chose to believe Zahner's version of events that he did not refuse the breath alcohol test and that he had not been properly advised of the Implied Consent Law. There is substantial evidence in the record to support the trial court's judgment.

EDITORS NOTE: This case explains a different tactic that can be employed in lieu of seeking sanctions. Rather than forcing a judge to make a politically difficult decision (and one that might not be upheld on appeal) convince the court to simply apply an evidentiary ruling that favors the driver.

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DWI Law - Texas Safe and Sober Program Nets Driver

I like reading Texas DWI appeals. When I see how badly the defendants in Texas and their Texas defense attorneys get screwed both on trial and on appeal, I somehow cannot help but feel that I have been housed in the nicest building in the concentration camp. The below case is an example of one of those cases that gives me that 'cold, nonfuzzy feeling' described above.

In Alcorta v. Not Reported in S.W.3d, 2011 WL 3672091 (Tex.App.-Hous. (14 Dist.)), the prosecutor failed to tell the defense attorney that the cop was working under a "DWI Safe and Sober" grant. Defense counsel did not learn of the same until the cop testified on direct during the trial. Rather than cross-examining the cop, the defense counsel upon learning that such was the case, immediately issued a subpoena for the records keeper (Mitchell) to appear the next day with the grant documents. It was counsel's intention to re-call the arresting officer once the documents were produced, but the prosecutor released the cop from trial.

The records keeper failed to appear under subpoena the next day. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, according to the appellate court the record did not reflect that appellant ever moved for a continuance. (The appeals court was apparently unwilling to accept the word of defense counsel absent extrinsic proof of the truth of his assertion). The defendant was found guilty thereafter.

Defense Counsel filed a motion for new trial. The trial court admitted into evidence the subpoena directing Mitchell to appear at trial. The subpoena does not reflect what time it was served on July 13, 2010. The trial judge also admitted into evidence documentation relating to the grant program. Trial counsel testified that had he received the documents, he would have laid the predicate for admissibility, recalled Officer Murray and questioned him about the grant program, and questioned Mitchell about how the police department benefits from the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

 The evidentiary hearing on appellant's motion for new trial centered primarily on documentary evidence of the grant program and the subpoena and service thereon in procuring those documents. Appellant's trial counsel testified that although a subpoena was served on Mitchell on the day of trial, the grant program documents were not received until a couple of days following the jury's verdict. According to trial counsel, had he received the documents in time, he would have recalled Officer Murray to question him about the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

*6 The prosecutor testified that Officer Murray had been excused at the end of his trial testimony. The prosecutor stated that Officer Murray would not have been subject to cross-examination of the grant program documents because he had been excused by the trial court with the agreement of both parties. The trial judge clarified that had the officer been subject to recall, she would have considered that as a “heads up” and that she may have allowed the officer to testify again. Neither trial counsel nor the trial judge could remember whether the officer was subject to recall, but they agreed that the record will speak for itself. The trial record reflects that, contrary to the prosecutor's testimony, at the conclusion of his testimony, Officer Murray was excused subject to recall and that the trial court ensured the State had a contact number by which to reach the officer at a later time.

In denying the motion for new trial, the trial judge noted that because appellant's trial counsel did not cross-examine Officer Murray about the grant program, she could not rule on whether the grant documents would have been relevant or admissible without knowing what arguments trial counsel would have made at that time. The trial judge could not remember the off-record discussions at trial relating to the grant program documents. The trial court denied the motion based on the testimony at the evidentiary hearing.

On appeal, the court wrote as follows:

"According to appellant, as raised in both his second and third issues on appeal, the State failed to disclose evidence that Officer Murray was working pursuant to the state-funded DWI grant program at the time of appellant's arrest. Appellant points to the grant program documents, as produced at the hearing on his motion for new trial, as being material and favorable evidence to his defense that was withheld in violation of his due process rights under Brady v. Maryland. See 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). We presume for the sake of argument that the grant program documents in question constitute Brady material. The opportunity to request a continuance once Brady material is disclosed at trial adequately protects due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex.Crim.App.1974). When, as in this case, the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pre-trial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App.1994). When an accused fails to request a continuance, he waives any error resulting from the State's failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 (Tex.Crim.App.1982). The record does not reflect that appellant sought a postponement or moved for continuance upon learning of the grant program,^FN1 which would have allowed him time to address the impact of the evidence and develop any necessary response to it. Appellant did not seek this relief and consequently waived any error. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd)."

FN1. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, the record does not reflect that appellant ever moved for a continuance. Appellant did not address this assertion at the hearing on his motion for new trial.

After the appeals court refused to believe defense counsel's assertion that he requested a continuance (and that it was denied), the court found waiver of the issue on appeal. What is distressing about this part of the appeal is that apparently the neither the prosecutor nor the trial court disagreed with the defense counsel's assertion that he sought a continuance. In fact, there were several off-the-record discussions, as noted by the appellate court. So why was defense counsel's statement that he asked for a continuance completely ignored by the appellate court?

A second ground raised involved playing the video portion of the HGN test.  During the trial the court privately viewed the video and suppressed the results of the HGN, as having been improperly administered. Nevertheless it still allowed the video portion of the tape showing the HGN test to be played in front of the jury to show the defendant was swaying. On this issue the appeals court wrote:

"The trial court excluded the audio portion of the HGN test from evidence because Officer Murray failed to follow proper procedures in administering the test; that ruling is not contested on appeal. See Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). But, appellant's physical behavior during the test is relevant for the purpose of evaluating his physical faculties, and the portion of the video shown during trial without audio was admissible for that purpose. See Miffleton, 777 S.W.2d at 80. Therefore, the trial court did not err in admitting the video-only portion of the HGN test in which appellant allegedly swayed. See id. We overrule appellant's fourth issue."

Concluding, the appellate court affirmed the conviction in this matter.

Editor's note: It is dismaying that an appellate court would not accept as fact that a continuance was requested and denied, when an officer of the court swore as such in his post-trial motions filed with the trial court and in his appellate brief, when such an averrance was not contested by the trial court nor the prosecutor.

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