DUI Appeal of the Day - Report of 'Drunk' Insufficient for Stop

In State of Ohio v. Wagner, Slip Copy, 2011 WL 598433 (Ohio App. 11 Dist.), 2011 -Ohio- 772, the defendant appealed the denial of his motion to suppress. There, a Taco Bell employee named Michael Stumpf had reported that a driver at the drive-thru was "drunk." based upon this report, Lt. Altamore saw the car as it exited the drive thru and made a wide turn onto the street. Altomare stated that he informed Officer Schlosser of this wide turn at some point but that he could not remember if he informed Schlosser or dispatch of the turn before Schlosser committed the stop of the vehicle or if he told Schlosser later, while Schlosser was writing his report of the incident. Altomare also testified that he did not actually witness Wagner face to face and therefore did not observe any behavior that indicated to him whether Wagner was intoxicated.
The appeals court stated the applicable law as follows:

“Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.” Weisner, 87 Ohio St.3d 295, at paragraph one of the syllabus. “The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer ‘were themselves aware of the specific facts which led their colleagues to seek their assistance.’ It turns instead upon ‘whether the officers who issued the flyer’ or dispatch possessed reasonable suspicion to make the stop.” Id. at 297, citing United States v. Hensley (1985), 469 U.S. 221, 231 (emphasis sic). If the dispatch “has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment.” Hensley, 469 U.S. at 232

In finding the stop illegal, the court pointed out the following:

An officer typically has sufficient justification to effectuate a stop based on a violation such as travelling left of center, as occurred in this case. However, the failure of the state to prove that Schlosser either personally witnessed the traffic violation or that Altomare conveyed this information to Schlosser via dispatch prior to Wagner being stopped, prevents the stop from being valid.

The appeals court also considered whether the original complaint by the Taco Bell employee, standing alone, was sufficient to stop the vehicle. They concluded that it was not:

“A citizen-informant who is the victim of or witness to a crime is presumed reliable.” State v. Livengood, 11th Dist. No.2002-L-044, 2003-Ohio-1208, at ¶ 11 (citation omitted). When determining the validity of such an informant's tip, we should consider whether the “tip itself has sufficient indicia of reliability to justify the investigative stop” by considering the “informant's veracity, reliability, and basis of knowledge.” Weisner, 87 Ohio St.3d at 299.

Stumpf was a Taco Bell employee who relayed information that he believed Wagner was drunk to Lieutenant Altomare. Because Stumpf is a citizen-informant, we presume that he was generally reliable. However, we must also consider whether the information relayed by Stumpf to Altomare, and ultimately to Schlosser, had sufficient indicia of reliability and a basis of knowledge that would justify a stop of Wagner's vehicle.

Altomare, the only witness to testify at the suppression hearing, stated that Stumpf informed him that Wagner, who was at the drive-thru window, was “drunk.” Altomare did not testify as to any other statements made by Stumpf, or explain any additional details as to why Stumpf believed Wagner was drunk. Additionally, Altomare never observed Wagner face to face on that night and had no personal knowledge of whether Wagner was drunk. Upon receiving information only that Wagner was “drunk,” Altomare informed dispatch of a possible drunk driver.

A citizen informant's statement that the suspect was “drunk,” without more, does not provide reasonable suspicion. An informant must give some details providing reasonable suspicion of drunk driving. See State v. Brant, 10th Dist. No. 01AP-342, 2001-Ohio-3994, 2001 Ohio App. LEXIS 5263, at *8-9 (where a tip given by a citizen indicated that the suspect “was honking his horn for ten minutes, his shirt was on backwards and inside out and his speech was very slow,” and the citizen did not indicate that he “witnessed any traffic violations, unlawful behavior, or evidence of impaired driving,” there was not reasonable suspicion of OVI to stop the suspect); State v. Morgan, 11th Dist. No.2008-P-0098, 2009-Ohio-2795, at ¶ 22 (the odor of alcohol, strange behavior, and comments made about not being sober provided reasonable suspicion for a stop to be conducted).

Editors Note: This case is a good example of the legal principle, followed in many states, that a conclusory report of "drunk driving" standing alone, fails to contain specific and articulable facts to support the stop of a vehicle.


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DUI Appeal of the Day (DAD) - When is a bad judge bad enough?

In Gaal v. State --- S.W.3d ----, 2011 WL 709698 (Tex.Crim.App.) the defendant was eventually convicted by jury of a Felony DWI. The defendant waffled back and forth about whether to have a plea or not. At the second plea setting, he again changed his mind. The judge said:

"We're supposed to have a plea here today. It appears that Mr. Gaal does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it's for the maximum term of ten years.”

The thereafter filed a motion to recuse the judge, based on his statement at the aborted plea hearing three days earlier. He argued that the trial judge's statement about refusing to accept any plea bargain for less than the maximum showed that the trial judge had entered into the plea-bargain process, could not be fair and impartial, and had demonstrated an arbitrary refusal to consider the entire range of punishment. The recusal judge denied appellant's motion to recuse. He first noted that “the trial judge doesn't have to take a plea bargain.” Second, he said that the record did not support a finding that the trial judge's ruling was arbitrary because the case file showed that appellant had had four or five violations registered on his interlock device while he was on bond. He had not stopped drinking and attempting to drive afterwards. The recusal judge stated that the record before him “doesn't support a position that [the trial judge] had some preconceived notion other than what was going on in this case, dealing with this defendant and the defendant's history while the case was going on.” Appellant's jury trial began later in August. He pled guilty to the jury and, after hearing the evidence, the jury sentenced him to ten years confinement.

On appeal, appellant argued, in part, that the recusal judge abused his discretion in denying his motion to recuse. The court of appeals agreed. It relied on Norton v. StateFN6 and Jefferson v. State for the proposition that the trial judge had “forecasted his inability to consider the full punishment range” and denied appellant due process when he stated that he would consider a plea bargain only for the maximum punishment. The court concluded that the recusal judge had abused his discretion in denying appellant's motion to recuse.
Additional appeal was then granted from the appeals court decision. The law on recusal was discussed as follows:

• A judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.

• The Texas Civil Rules of Procedure, which were determined to apply here as well, state that “A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; [or] (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]”

• Federal due process may also require recusal. Three situations have been held to rise to this level under the federal Due Process Clause: 1) when the judge has a financial interest in the case; 2) when the judge had acted as a one-man grand jury to bring charges in the case he is trying; and 3) “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” Caperton v. A.T. Massey Coal Co., Inc., ---U.S. ----, ---- - ----, 129 S.Ct. 2252, 2259-64, 173 L.Ed.2d 1208 (2009). As Justice Kennedy has stated, a judge's impartiality might reasonably be questioned “only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.” Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring).

• Generally, though, recusal is not required when based solely on judicial rulings, remarks, or actions. These acts almost never constitute a valid basis for a bias or partiality motion. In and of themselves ..., they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

• Thus, a judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.” FN22 On the other hand, “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women” may display, do not establish bias or partiality. FN23 Thus, a trial judge's ordinary efforts at courtroom administration do not render him subject to recusal.FN24 Although intemperate remarks may well violate a rule of judicial conduct, such a violation does not necessarily mean that the judge should be recused.

• Recusal has been required, however, when a trial judge revoked a defendant's bond and put him in jail solely because he decided to invoke his right to a jury trial,FN26 or when a trial judge arbitrarily, without any evidence before him, refused to consider a portion of the range of punishment. Recusal of the trial judge in a criminal trial was also proper under the reasonable-person standard where the trial judge's remarks evidenced “a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record,” or a personal prejudice against the defendant for successfully appealing his conviction on the basis of the judge's actions during a prior trial.
Finding that the trial court did not display the requisite lack of impartiality, the higher court upheld the denial of recusal. It stated:

"The trial judge's comments could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he had twice rejected favorable plea bargains-one the minimum possible jail time-and was continuing to drink in violation of his bond conditions. Thus, the trial judge would not encourage further delay for more plea bargaining (after all, who is going to accept a plea bargain for the “maximum”?); it was time to try this case as soon as possible. The trial judge never intimated, nor is there anything in the record that would logically support a finding, that he would not fairly consider the entire range of punishment at trial. His comment, taken in light of the totality of the circumstances, is more logically construed as an expression of impatience with a defendant who reneges on his agreements to plead and to abide by the DWI bond conditions. A reasonable person, based on the totality of the circumstances, would translate the judge's statement as, “I'm not going to reset this case for any more plea negotiations; we're going to trial.” That statement does not suggest that the trial judge's impartiality might reasonably be questioned, and it is not a basis for recusal."

Thus, the DWI conviction was upheld and the 10 year sentence was reinstated.


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DUI Appeal of the Day (DAD) - Improper Seizure at Closed Business

In Sosa v. Texas, Not Reported in S.W.3d, 2011 WL 346215 (Tex.App.-Texarkana), the defendant was convicted of DWI after her motion to suppress was denied. Her sole issue on appeal was the propriety of the investigative detention. While on patrol, the arresting officer (Hill) observed the defendant (Sosa) parked at the entrance to DC Self Storage in Marshall, Texas, at approximately 10:45 p.m. Based on Hill's experience when Hill's mother had previously rented a unit from that storage facility, Hill believed the normal business hours of the storage facility were from 7:00 a.m. to 7:00 p.m. Hill proceeded past the storage facility and stopped on the side of the road. When Sosa did not enter after thirty to forty seconds, Hill turned around, activated his lights, and pulled in “behind her.” While conversing with Sosa, Hill detected the odor of alcohol on Sosa's breath and noticed that Sosa's speech was slurred. Subsequent investigation determined Sosa to be intoxicated. The first issue that needed resolution was whether the contact was a 'seizure' or whether it was an 'encounter', as the term was used in the opinion. The court found that the use of the lights, the blocking of the defendant's vehicle, and the officer's admission that the defendant was not free to leave were enough to establish that the contact was a 'detention':

In this case, Hill's show of authority was sufficient to communicate to a reasonable person that he or she was not free to leave the scene. Hill testified Sosa was not free to leave. Although the classification of an interaction is determined based on an objective standard and, therefore, the police officer's subjective opinion is not determinative, Hill's subjective opinion can be evidence that a reasonable person would not feel free to terminate the interaction. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (reasonable suspicion evaluated from objective perspective). The manner in which Hill parked his vehicle and the use of overhead emergency lights suggest the interaction was an investigative detention. Since Sosa was parked in front of the storage facility's gate, the position of Hill's vehicle effectively prevented her vehicle from moving. Sosa's vehicle seems to have been trapped between the storage facility's gate and Hill's vehicle. The Texas Court of Criminal Appeals has considered the fact that a police officer “ ‘boxed in’ Appellee's parked truck” in determining whether a seizure had occurred. See State v. Garcia-Cantu, 253 S.W.3d 236, 246 n. 44 (Tex.Crim.App.2008) (concluding trial court did not err in concluding reasonable person would not feel free to leave).

Although “[a]ctivation of overhead lights on a police vehicle does not necessarily make an encounter non-consensual,” the Texas Court of Criminal Appeals has noted: “The use of ‘blue flashers' or police emergency lights are frequently held sufficient to constitute a detention or seizure of a citizen, either in a parked or moving car.” Id. at 245 n. 43 (spotlight different from overhead lights); see Crain v. State, 315 S.W.3d 43, 52 (Tex.Crim.App.2010) (activation of overhead lights factor in concluding pedestrian was detained); Hudson v. State, 247 S.W.3d 780, 785 (Tex.App.-Amarillo 2008, no pet.) (activation of patrol car lights and police officer's order caused appellant to yield to show of authority); see Franks v. State, 241 S.W.3d 135, 142 (Tex.App.-Austin 2007, pet. ref'd) (mere activation of overhead lights at dark rest park was insufficient, by itself, to make initial interaction a detention). Franks is distinguishable in that, there, no evidence suggested that the position of the police car impeded Franks' ability to terminate the encounter. Franks, 241 S.W.3d at 142. Further, the police officer in Franks testified he activated the overhead lights to illuminate the rest area. Id. There is no evidence in this case that Hill activated his overhead lights to illuminate the storage facility's entry area. When asked whether the area “is fairly well lit,” Hill responded, “I'd say fairly. It's not as well lit as you get going on into town.”

Thereafter, the court then grappled with whether the detention was supported by reasonable suspicion. The State argued that the vehicle's remaining at the entrance of a closed business for 30-40 seconds, coupled with the officer's knowledge that thefts and break-ins had previously occurred there, gave rise to reasonable suspicion, and the court sub judice had agreed. However, the appellate court disagreed:

The noncriminal, not terribly unusual, nonrepetitive behavior observed in this case was insufficient to objectively support a belief that criminal activity was or soon would be afoot. The specific, articulable facts relied on by Hill are insufficient to create reasonable suspicion that criminal activity was occurring. All the facts indicate is that Sosa was present in front of a business late at night, after normal business hours, and that storage buildings are occasionally broken into. Hill failed to provide, under the totality of the circumstances, sufficient specific, articulable facts to create an objective manifestation that Sosa was, or was about to be, engaged in criminal activity. Hill's suspicion amounted to nothing more than a mere hunch. Deferring to the trial court's determination of historical facts, it was error to overrule Sosa's motion to suppress.

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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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DWI Appeal of the Day (DAD) - Blood Search Warrant Insufficient

Rarely does any DWI reported out of the Texas appellate courts end well for the defendant. This is one of those rarities. In Farhat v. State of Texas, --- S.W.3d ----, 2011 WL 56056 (Tex.App.-Fort Worth), the defendant was arrested for DWI by Corporal Finley. Corporal Finley then prepared a sworn affidavit for a blood-draw search warrant, and the magistrate subsequently signed a search warrant based on the affidavit.

The case presents a good summation of search warrant law, both federal and state:

The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.

The affidavit in support of the blood warrant states, in total,

On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.

The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:

In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.

In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *

The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.


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DUI Appeal of the Day (DAD) - The “blackout” defense

The case of Mahanes v. Shugars, --- S.W.3d ----, 2011 WL 43302 (Ky.App.) is not a DUI case. It is a personal injury lawsuit where Mahanes admitted causing the collision that injured the plaintiff. The defendant alleged he suffered a blackout that caused him to lose control of his car and eventually strike Mahanes' truck, and was therefore not responsible for the accident. In Kentucky, this is known as the 'blackout defense'. Many states have such a defense, which relieves the defendant of civil liability.

Under the “blackout” defense,

"where the driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. However, once a prima facie case of negligence has been made against the defendant he must demonstrate that the sudden illness or incapacity could not have been anticipated or foreseen."

Trial evidence covering two days showed Shugars' blood pressure was 240/136 soon after the crash. He was treated for hypertension, kidney failure and swelling of the brain. The jury

Editor's thoughts: If a 'blackout' can be used to avoid civil liability, then proof of a blackout (as opposed to intoxication) should have an equal or better footing in a criminal DUI case... just thinking....

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DUI Appeal of the Day (DAD) - Judgment of acquittal based on the margin of error

In Kansas v. Finch, --- P.3d ----, 2011 WL 43926 (Kan.) the defendant was arrested for DUI and took a breath test, the result of which was 0.08. The trial proceeded solely on the charge of driving with a BrAC of 0.08 or greater. At trial, the defense crossed the breath operator about the margin of error (for those with interest, the below opinion contains a great portion of the cross, which revealed a recalcitrant cop who was unwilling to admit that the machine was less than 100% perfect). When the state rested, the defense moved for judgment of acquittal as a matter of law (this was a jury trial). The trial court, commenting that he found the breath cop less than credible on the margin of error, and also noting that he was aware of testimony from other trials where the margin of error was admitted to be =/- 0.007, granted the motion.


On appeal, the higher court found the trial courts ruling improper. Under the standards applicable, once the state puts in a result of 0.08 or more, then they have met their initial burden of proof (prima facie in a light most favorable to the State). In reversing though, the appeals court rejected the state's attempt to bar introduction of any evidence of a margin of error or other errors in the measurement of the breath (commenting that the state is trying to "overegg the pudding"). In fact, the court held that the margin of error, if proven, should be considered by the trier of fact in arriving at a verdict at the close of all evidence. The court suggested that the jury could accept or reject the margin of error evidence.



Editors notes: there is controversy over whether a margin of error can defeat a per se count as a matter of law. Further, the appeals court advised that it is improper for a trial court to take notice of testimony dehors the record.

Counsel should always be prepared to prove up a margin of error independent of the breath operators testimony, such as manufacturer's records, government studies, or experts.

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DUI Appeal of the Day - Hearing Officer's refusal to authorize subpoena improper

In Florida Dept of Hwys and Motor Vehicles v. Auster, --- So.3d ----, 2010 WL 5391552 (Fla.App. 5 Dist.), the defendant sought to challenge her suspension for refusing a breath test, based upon her claim that she had timely recanted her refusal to submit to a breath test. In that regard, she sought to subpoena the breath technician to confirm her claim. The hearing officer, upon whose authority the subpoena must issue, refused to authorize the same. She then lost the hearing, and appealed. On appeal, the court stated:

A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)(b), Fla. Stat. (2008). Here, Caner was identified in these documents. Furthermore, according to DHSMV's own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). The question of whether Auster timely rescinded her refusal to submit to a breath test is a relevant issue.

Continuing, the appellate court held that:

Where the witness' expected testimony would be relevant to the issues within the limited scope of the review hearing and would not be clearly cumulative, due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so.

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DUI Appeal of the Day - Drunk Driving Laws and Americans with Disabilities Act

In Bircoll v. Miami-Dade County, 480 F.3d 1072, 34 NDLR P 107, 20 Fla. L. Weekly Fed. C 371 (2007), the defendant was a deaf person, who sued after being wrongfully arrested for DUI. He claimed that the police officer's procedures for arrest and custody violated his rights under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). The appeals court held that:

(1) To take reasonable steps to accommodate the disability of profoundly deaf motorist who had been arrested for driving under the influence (DUI), as required under the Americans with Disabilities Act (ADA), arresting officer had to take appropriate steps to ensure that his communication with motorist was as effective as with other individuals arrested for DUI. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.
(2) waiting for oral interpreter before taking field sobriety tests was not reasonable modification of police procedures, in which officer who stopped motorist on suspicion of driving under the influence (DUI) had to engage to accommodate motorist's profound deafness;
(3) Actual communication between police officer and deaf motorist whom he had stopped on suspicion of driving under the influence (DUI) was not so ineffective that oral interpreter was necessary to guarantee that motorist was on equal footing with DUI suspects who were not hearing-impaired, and to protect motorist's rights under the Americans with Disabilities Act (ADA), where motorist admitted that he read lips and usually understood 50% of what was said, where officer, in addition to verbal instructions, gave physical demonstrations, and where motorist understood that he was being asked to perform field sobriety tests and actually tried to perform at least three of those tests; and
(4) Arresting officer took steps reasonably necessary to establish effective communication at police station with the profoundly deaf motorist whom he arrested for driving under the influence (DUI), and did not discriminate against motorist in violation of provision of the Americans with Disabilities Act (ADA), where officer not only read consent form aloud to motorist twice in lighted room to afford him an opportunity to lip read, but provide him with written copy of form, and where motorist acknowledged that he could read English; motorist's own failure to read what officer provided him did not constitute discrimination.
(5) Even assuming that corrections officers failed to accommodate motorist's disability, by requiring him to use ordinary telephone to attempt to communicate his arrest to his girlfriend, this lack of accommodation did not injure motorist or support cause of action under the ADA.

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DUI Appeal of the Day - Collateral Estoppel OK for Wyoming DUI

In Bowen v. Wyoming Dep't of Transportation, -- P.3d ----, 2011 WL 9617 (Wyo.), 2011 WY 1, the defendant appealed from an administrative decision, finding that the driver was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding. On appeal, the Supreme Court of Wyoming was asked to decide whether collateral estoppel coud be applied from a criminal case to a civil license administration case. Most states have previoulsy ruled that collateral estoppel should not apply from an administrative hearing (implied consent) to a criminal case, under various theories. One theory involves the fact that the implied consent hearing is summary in nature, so that a 'full and fair' adjudication may not occur. Another theory preventing collateral estoppel from a drivers license suspension hearing and a criminal DUI case could be that the parties are not identical (one involves the DMV where the other involves District Attorneys and the 'People').

The Wyoming Supreme Court analyzed the issue as follows:
The issue raised in this appeal is one of first impression for this Court. Furthermore, we are unable to find authority from any other jurisdiction addressing this particular factual scenario.FN3 Nevertheless, we find application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court's determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. When applying collateral estoppel to an issue raised in a civil action, which issue was previously litigated in a criminal action, we have said that criminal proceedings present a defendant with a full and fair opportunity to litigate the issues because a criminal defendant has strong incentives to defend vigorously the charges against him. Worman v. Carver, 2002 WY 59, 21, 44 P.3d 82, 87-88 (Wyo.2002). In this case, the criminal proceedings afforded the appellant a full evidentiary hearing wherein he offered evidence, examined witnesses, and made arguments. FN4

FN3. We note that courts have addressed the applicability of collateral estoppel under other circumstances involving criminal and administrative cases. See Huelsman v. Kansas Dep't of Revenue, 980 P.2d 1022, 1025-27 (Kan.1999) (suppression of evidence in DUI prosecution based on lack of probable cause did not collaterally estop state from arguing in license suspension proceeding that officer had “reasonable grounds” to request a breath test pursuant to the implied consent law); State v. Young, 530 N.W.2d 269, 273-77 (Neb.Ct.App.1995) (holding that collateral estoppel does not require a criminal court to accept as binding an administrative proceeding's license revocation determination); In re Mehrer, 273 N.W.2d 194, 197 (S.D.1979) (no collateral estoppel in license revocation proceedings despite dismissal of DUI charge against defendant in criminal case because different elements must be proven to show DUI versus violation of implied consent laws); City of Manhattan v. Huncovsky, 913 P.2d 227, 232 (Kan.Ct.App.1996) (criminal court not collaterally estopped from deciding validity of breath test where agency questioned validity of breath test results and dismissed administrative proceedings).


We conclude that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.FN5 The OAHs determination is affirmed.

The Wyoming Supreme Court refused, however, to issue a bright-line ruling. Instead, they ruled that each case would have to be decided on a fact-specific basis. Thus, it is likely that a party can always get a "second bite at the apple" if they have additional evidence to present:
FN5. We note the limited nature of our decision in this matter. Although we find that collateral estoppel applies under these specific circumstances, the same may not be true in other similar situations. For example, we cannot say that collateral estoppel would always bar an administrative body from addressing an issue previously decided by a criminal court; nor does this holding stand for the proposition that a criminal defendant should be collaterally estopped from arguing an issue in his criminal case that had previously been decided in an administrative proceeding. Neither of these questions, nor any others not specifically addressed, were raised by the parties nor do they arise under the facts of this case.
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DUI Appeal of the Day - Improper Lane Usage

In Illinois v. Hackett, --- N.E.2d ----, 2010 WL 5420188 (Ill.App. 3 Dist.), the trial court granted the motion to quash arrest and suppress evidence. The testimony revealed that the defendant crossed over the lane divider between the northbound lanes at least twice. He argued that he may have been avoiding potholes, although the officer (Blouin) testified that he didn't see any potholes. Upholding the trial court's ruling, the majority stated:
There are too many innocent circumstances that might cause a motorist to momentarily and inadvertently inch across a lane divider to find that such action, without more creates probable cause to arrest.
In this case, by Blouin's own admission, defendant's tires only slightly crossed the lane divider for mere seconds before defendant continued to operate his vehicle entirely in the left-hand lane of traffic. Instructive and in stark contrast is Smith, where the defendant drove with his wheels straddling the lane dividers by six inches on opposite sides of the street on two separate occasions, effectively driving in three lanes of traffic for approximately 150 yards each time. With regard to the second requirement of the statute, nothing in Blouin's testimony provides any bases to find that if defendant did change from the left lane of traffic to the right, however briefly, he did not do so without first determining that it was safe. The evidence does not provide grounds upon which to find that defendant's driving endangered himself, pedestrians, or other vehicles at any time.
The fun part of this opinion involves the unusually course banter between the majority and the dissent.

The majority wrote the following:
FN1. The dissent, typically and predictably, resorts to ridicule, hyperbole, personal anecdotes and observations, assaults on positions not taken by the majority, quotes taken out of context, and facts outside the record to attack a legal analysis with which he does not agree. If the majority decision is indeed wrong, it should be possible to demonstrate that error in a mature and professional counteranalysis.
The dissent countered with:

This opinion would not standup to a Vinny Gambini cross-examination. I can only think of that renowned trial lawyer's cross-examination of witness Mr. Tipton regarding the time it took to cook grits on Tipton's stove. Vinny Gambini would undoubtedly ask whether the law of physics cease to exist on highways in the Third District allowing a vehicle to travel for four seconds with its tires in two separate lanes and yet not be “actually driving in more than one lane of traffic.” Was this a magic pickup truck? Did the defendant buy his truck from the same guy that sold Jack his beanstalk beans? If the defendant was not actually driving in more than one lane of traffic, what was he “actually” doing? Just what is a reasonably appreciable distance? How does an officer decide? The majority leaves no workable rule.

I could write a four-volume dissent on this case, picking apart one silly sentence after another in the majority opinion. However, I will stop here. The thrust of the majority opinion is that the majority believes that police should not be able to stop people for minor traffic violations. I suppose we all feel that way when we are stopped for one. This is the appellate court; we do not get to rewrite the law based upon our feelings about it. The supreme court and the legislature have that power. We do not. Clearly, the officer had probable cause to stop the defendant for improper lane usage. The supreme court's decision in Smith is not ambiguous. Whether the defendant inadvertently or intentionally swerved twice across the lane divider lane is irrelevant. The majority opinion stands the law on its head and creates a totally unworkable scheme for traffic law enforcement. Do we apply the same analysis to speeding? Must one speed for a “reasonably appreciable distance” to violate speed laws?

*10 Illinois has five appellate courts and one supreme court. Our supreme court does not have the resources to correct every wrongly decided appellate decision. The majority undoubtedly is banking on the fact that the court will have more pressing matters before it and not grant a petition for leave to appeal on this matter. With all due respect, the majority opinion is nonsense, plain and simple. Even worse, it endangers the lives of the motoring public by limiting the ability of police officers to stop erratic drivers. I dissent.
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DUI satire compliments of The Onion

Here's a priceless piece of vintage satire from the Onion: "DMV Reconsidering 'One For The Road' Driver Relaxation Campaign." Here are a few choice excerpts from the 1997 tongue-in-cheek article:

SPRINGFIELD, IL—With the drunk-driving fatality rate nearly tripling in Illinois in the past year, the state's Department of Motor Vehicles announced Monday it will re-examine its controversial "One For The Road" driver-relaxation promotional campaign...

According to Penn, the One For The Road program had its roots in a DMV study revealing a positive correlation between alcohol consumption and driver confidence.

"We found that people who had consumed at least four beers or two mixed drinks before getting behind the wheel were twice as likely to believe they were in no danger of getting hurt or killed," Penn said. "When operating a serious piece of machinery like a car, that's just the kind of confidence you need."...

In the time since the September 1996 launch of One For The Road, some 2,300 DUI-related fatalities have occurred in Illinois, a 275 percent increase over the previous year.

"Perhaps we need to reconsider certain aspects of the program," said Bill Gerhardt, co-creator of the program. "We need to ask ourselves, 'What parts of this program are not working, and how can we fix them?'"...

While Illinois DUI laws aren't perfect, at least our legislators have a bit more common sense than the fictional characters in this article.

And, if you're so inclined, you can read the entire article here.

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Avoid drinking and driving-that way you won't have to hire us.

This is a very moving video that serves as a reminder to avoid drinking and driving in the first place--rather than having to hire us afterward. (WARNING: There are some graphic images toward the end of the video). 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!

Golf carts: yet another bad choice.

Image via Wikipedia

First we learned that operating a Barbie car while intoxicated was a very bad idea. We later learned that a Russian tanker is also a bad choice. Today's lesson: golf carts--also a bad choice. As reported in this Tampa Bay Online article, a young man was recently charged with operating a golf cart on U.S. 19 while intoxicated:

Early Thursday, a New Port Richey Police officer pulled over a golf cart cruising in the right lane of U.S. 19 heading south. Steven Lee Proctor had a dazed expression, slurred speech, watery bloodshot eyes and reeked of alcohol, the officer said in his report. At first the 18-year-old denied drinking any alcohol or using any controlled substances. But after performing poorly on field sobriety tests and being read his legal rights, Proctor admitted to the officer he had "a few beers" before driving the golf cart on the highway, the report said.

Our advice? If you've had a few drinks, take a cab or get where you're going the old fashioned way: walk. You'll retain your dignity and stay safe. 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!

New Jersey Holds Drunk Drivers Can Recover From Bars That Over-Served Them

Image by afsart via Flickr

Last week, the New Jersey Law Journal reported on a New Jersey appeals court's ruling in Voss v. Tranquilino, A-5431. In Voss, the court addressed the issue of whether a person convicted of drunk driving can then turn around and sue the bar that over-served them for economic and non-economic damages. The defendant in Voss, the bar at which he had been drinking, asserted that it was immune from liability pursuant to the operation of the 1997 anti-drunken driving amendments to motor vehicle insurance law, at N.J.S.A. 39:6A-4.5(b), which specifically state that a driver convicted of DWI in connection with an accident "shall have no cause of action for his or her injuries." The court disagreed, basing its decision on the the legislative intent behind the law:

(The) legislature could not have thought it could reduce the number of drunken drivers by immunizing liquor establishments from their claims and thus providing a disincentive to the licensees...

The court's decision makes sense. Although some might argue that it encourages people to drink and drive, bar owners should not be exempted from dram shop laws when the natural extension of their negligent action occurs: the drunk person operates a motor vehicle and is involved in an accident. Had the person not been intoxicated he or she might not have made the unfortunate decision to operate a motor vehicle while intoxicated. Where the bar's failure to stop serving alcohol to the injured party may have been at least one cause of the accident, the bar should not be absolved from liability by operation of law. 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!

Operating a Russian Tanker While Intoxicated is Probably a Bad Idea

Last week we learned that, for any number of reasons, throwing back a few drinks prior to taking your kid's Barbie car for a spin is a bad idea. This week we learn that operating a Russian tanker while intoxicated is likewise inadvisable. As you'll see in the video below, a Russian soldier learned that lesson the hard way. His drunken tank excursion ended as quickly as it began when he abruptly crashed into a house, knocking down a supporting wall. Following the collision, the tank driver exited the vehicle, clinging to 2 unopened bottles of vodka. However, despite appearances, according to a military spokesman, "The driver was absolutely sober, because he was going to military exercises." You be the judge. Drunk Russian Tank Driver - More amazing video clips are a click away 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!