OWI Laws: Wisconsin Conviction For Operation Improper

Today's DAD comes to us thanks to the watchful eyes of Wisconsin Attorney Tracey Wood. The case itself was handled by NCDD member Lauren Stuckert of Regent Andrew Mishlove's office. In the case, the jury convicted the driver of OWI. The officer had observed a white van parked in the bar’s parking lot and a man, later identified as the defendant Herbst, seated in the driver’s seat slumped over the steering wheel, with the engine running. Over objection, the prosecutor was allowed to argue to the jury that even touching the steering wheel constituted 'operation'.

On appeal, the court found that the evidence was sufficient to convict, but that the argument denied the defendant a fair trial. Because prosecutor's often attempt to 'bend' the law's definitions into thier favor, asnd then on appeal argue that the errors were harmless, or cured by a written jury instruction, the opinion is incorporated verbatim: 

"We acknowledge that, in general, counsel has wide latitude in closing argument and that it is within the trial court’s sound discretion to control the content of closing arguments. See State v. Lenarchick, 74 Wis. 2d 425, 457, 247 N.W.2d 80 (1976); State v. Cockrell, 2007 WI App 217, ¶41, 306 Wis. 2d 52, 741 N.W.2d 267. However, “[c]ounsel is not permitted to make statements of the law which are of dubious correctness.” State v. Bougneit, 97 Wis. 2d 687, 699-700, 294 N.W.2d 675 (Ct. App. 1980). Where counsel’s inaccurate statements likely affected the jury’s verdict, reversal is appropriate where the trial court erroneously exercised its discretion. See Lenarchick, 74 Wis. 2d at 457-58.  

"We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel. If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat. § 347.63(3)(b), that is a correct statement of the law. But that is not how the City framed its discussion of the meaning of “operate.” The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.

"Moreover, in overruling defense counsel’s objection to the City’s inaccurate statement of the law regarding what constitutes “operate,” the trial court appeared to defer to the jury’s understanding of whether simply having hands on a steering wheel is “operating” within the meaning of the statute by stating: “This is final—this is argument, counsel. She’s allowed that latitude. I will allow her to do that. These people are intelligent people. They can make that decision. That’s their job.” (Emphasis added.) It is not clear what the court intended by responding to defense counsel’s objection in this manner. However, it is possible that a reasonable juror, listening to the City’s erroneous statement of the law, defense counsel’s objection, and the court’s response, would be confused as to a juror’s proper role in deciding what constitutes “operate” and whether simple placement of hands on a steering wheel is manipulating or activating the controls of a motor vehicle.  

"Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction. The court did so here. However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition. The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.” That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel. The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”  

Due to the misstatements of law by the prosecutor, coupled with the judge's apparent tacit approval of it by failing to intervene and sustain the objection, a new trial was ordered. 

Editor's Note: Kudos to the defense attorney for timely objecting, thus preserving the error for appeal!

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DUI Law - Georgia Says Prosecutors Mistake Not Double Jeopardy Bar to Retrial

In Williams v. State, --- S.E.2d ----, 2011 WL 3925582 (Ga.App.) the prosecutor erroneously stated in closing arguments that the defendant had consumed margaritas, when in fact the defendant had admitted consuming 2 1/2 beers. This error was not discovered by the defense until the jury began deliberating. The state offered to have a mistrial, but the defense simply wanted the videotape of the defendant replayed before the jury, where the defendant's true statement would appear. The judge refused to allow a reply of the video. Thereafter, the defense also moved for a mistrial, which was granted.

Prior to retrial, the defense then moved for a dismissal under double jeopardy (i.e. motion for plea in bar) claiming that the prosecutor goaded defendant into asking for a mistrial. On appeal, the law was discussed as follows:

"As an initial matter, to the extent that Williams subsequently consented to and joined in the State's motion for a mistrial, he could not later use the mistrial as the basis for a plea of double jeopardy. See Bellew v. State, 304 Ga.App. 529, 532(1), 697 S.E.2d 249 (2010). Notwithstanding Williams's contention that he was goaded into joining the mistrial motion, no basis for reversal has been shown. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial."

Holding that the retrial was not prohibited by double jeopardy, the court wrote:

"The record in this case supports the trial court's finding that the prosecutor's mistake was unintentional and was not intended to goad Williams's counsel into moving for a mistrial. The record reflects that the prosecutor's mistake was neither blatant, deliberate, nor made in bad faith. No objection was raised at the time that the mistake was made. And when Williams's counsel later discovered and raised the issue, he likewise expressed a belief that the prosecutor's misstatement was “unintentional” and that “the prosecution didn't make th[e] error to goad [the defense] into moving to mistrial[.]” The evidence thus reflects that “[a]lthough the prosecutor was mistaken or confused as to the [evidence regarding the type of alcoholic beverage that Williams consumed], the record shows the prosecutor's mistake[ ][was] made in good faith and reveals the state's intention was not to provoke mistrial.” (Citation and punctuation omitted.) State v. Oliver, 188 Ga.App. 47, 51(3), 372 S.E.2d 256 (1988). See also Mathis v. State, 276 Ga.App. 587, 588, 623 S.E.2d 674 (2005) (concluding that retrial was not barred since the prosecutor's improper comments during closing argument were not made with an objective to abort the trial and subvert double jeopardy protections).

"Moreover, “the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” (Citation and punctuation omitted.) Oliver, supra, 188 Ga.App. at 52(3), 372 S.E.2d 256. Regardless of the type of alcoholic beverage that Williams had consumed, the evidence was sufficient to support the charged offenses. See OCGA §§ 40–6–181(b)(5), 40–6–253(b)(1), 40–6–391(a)(1) and (5). Under these circumstances, the prosecutor's mistaken argument appears to have been made in a zealous attempt to obtain a conviction, rather than to force a mistrial. See Roscoe v. State, 286 Ga. 325, 327, 687 S.E.2d 455 (2009) (affirming the denial of the defendant's plea in bar since the evidence established that the prosecutor's erroneous opening statements were made while aggressively seeking a conviction, not a mistrial); State v. Traylor, 281 Ga. 730, 734, 642 S.E.2d 700 (2007) (concluding that defendant's retrial was not barred since there was no evidence to support a finding that the prosecutor's misconduct was intended to terminate the trial, rather than enhance the likelihood of conviction).

"Since the evidence supports the trial court's findings that the prosecutor's mistake did not rise to the level of intentional prosecutorial misconduct and was not intended to subvert double jeopardy protections, we affirm the denial of Williams's plea in bar.


Editor's Note: What I found odd was the fact that the video did not go back with the jury so they could play it during deliberations - a practice commonly done in Illinois (over defense objections). I would be interested in hering what other courts do with video during jury deliberations...
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DUI Law - Kansas Finds Refusal Remarks of Prosecutor Improper

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

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

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

....

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

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

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


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OWI Appeal - Improper Remarks by Prosecutor Re Testing is Declared

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

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

[Defense Counsel]: Judge, I object—

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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


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