DUI Law - Georgia Decides Whether Arrest Occurred Prior to Test

Often, a quandary arises when a person is involved in a motor vehicle accident, and transported to the hospital. Is that person under arrest when the police officer interacts with them there? To get the blood into evidence, the answer must be yes. To get an admission into evidence without Miranda, the answer must be no. Hence, the old shell game begins. 

In Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.), Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford's condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.

When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford's breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford's silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.

The charges, however, were not officially place until months later. 

Because Georgia requires an arrest that precedes the implied consent warnings, even for admissibility of the result for the criminal trial, the defendant claimed that he was not arrested prior to the blood draw, and he sought suppression. Disagreeing the appellate court wrote: 

"It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ “ Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380 (2005), quoting Clement v. State, 226 Ga. 66, 67(2), 172 S.E.2d 600 (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga.App. at 244, 593 S.E.2d 707 (affirming suppression of defendant's statement on the basis of trial court's factual finding that defendant's “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717, 620 S.E.2d 380 (reversing trial court's finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”). 2. In light of the above, we need not determine whether Buford's injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713(1), 620 S.E.2d 380; Gilliam v. State, 295 Ga.App. 358, 671 S.E.2d 859 (2008)."

The trial court's denial of the motion to suppress was affirmed.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

OUI Law - Mass Court Allows Extraterritorial Arrest Under Inevitable Discovery Doctrine

In Commonwealth v. Lahey, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 4790770 (Mass.App.Ct.) a police officer who was outside his jurisdiction, and returning to his territory following an ambulance escort to a hospital, came across a drunk driver travelling in the oncoming lanes, who ran him off the road. He turned around, caught up to the car, and ultimately arrested the individual for DUI. A police officer from the correct town was less than one minute away as a result of a dispatch he had received regarding the same vehicle.
On appeal, the court found that the original stop of the vehicle was improper, as it was an extrajurisdictional arrest by an officer without authority. The court also found that, even though the driver had 7 DUIs and therefore was committing a felony, the stop was not authorized under the felony exception to the law, since the cop had no knowledge of the priors until later. The appeals court also found that there was no community caretaking exception to the extrajurisdictional arrest doctrine, and held that it was up to the legislature to so carve an exception.
However, the appeals court did find that suppression was not available, under the inevitable discovery doctrine. The court found that the proper arresting authority, being so close to the event and having been specifically dispatched to the area for the purpose of finding the drunk driver, would have inevitably stopped and arrested the same.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Arrest - Florida Allows Challenges To Unlawful Arrest Suspensions

In Florida Department of Highway Safety v. Hernandez, --- So.3d ----, 2011 WL 2224791 (Fla.), the Supreme Court of Florida was asked to decide the following two questions:
Can the DHSMV suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

The court answered these questions as follows:

"We agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305–08 (Fla. 5th DCA 2008), review denied, 984 So.2d 519 (Fla.2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. We further agree that the driver whose license is suspended should be able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer, who is reviewing the legality of the suspension. We thus answer the first certified question in the negative and the second certified question in the affirmative, approve Hernandez, approve of the reasoning in Pelham, and quash McLaughlin."

The Florida Court reasoned as follows:
"Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006),FN4 commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's “implied consent law”).FN5 The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(1)(a) 1.a., Fla. Stat. (emphasis added). The statute further provides that the test “ must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So.2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”

The DSMHV had argued that, under an additional statute delineating the issues that could be raised at the DMV hearing, the legislature had specifically deleted the issue of the legality of the arrest (by amendment). "In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006–290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process." The court held as follows:

"Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest."

Finally, the Supreme Court held that the defendant must have the right to challenge the legality of the arrest, and that the hearing officer has the obligation to review the legality of the arrest, stating:
"Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable—and unconstitutional—result."


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Handcuffing Person Does Not Always Mean Arrest Says Minnesota

In Myhre v. Commissioner of Public Safety, --- N.W.2d ----, 2011 WL 2175838 (Minn.App.) the defendant appealed the revocation of his driving privileges, arguing that he was 'in custody' at the time he was interrogated and therefore his statements were obtained in violation of Miranda. On appeal, the facts revealed that the defendant was found inside the garage of a home by the owner, who did not know him. Apparently, the intoxicate man had stepped out of a neighbor's home to have a smoke and was confused upon re-entry. A small, diminutive female police officer, unsure about the facts upon arrival, handcuffed the individual for officer safety. he was then interrogated, where it was learned that he was a guest next door, had driven to the home after drinking, and had not driven after driving.

The appeals court found that the defendant was not "in custody" when he was handcuffed and interrogated. Rather than focusing on "whether a reasonable person, innocent of a crime, would believe they were no longer free to leave" as required by the SCOTUS decision in Mendenhall, the court focused instead on the officer's reasonableness:

"The district court found that Officer Carlson is “female and of smaller stature.” The district court also found the Officer Carlson was alone at the scene and that when she arrived the “parties were breathing heavily and Officer Carlson could tell that there had been an argument.” Based on these facts, we agree with the district court's determination that, under these circumstances, it was reasonable for Officer Carlson to handcuff appellant and remove him from the garage for officer safety reasons.

We also agree with the district court's determination that Officer Carlson's questions did not go beyond the scope of an initial investigation. After arriving at the scene, the officers quickly determined that appellant did not live at the residence and that he was not supposed to be there. Questions regarding where appellant was coming from and how he arrived at the residence were relevant to the initial investigation."

Once the Minnesota Appeals court wrongfully applied the 4th amendment test of 'reasonableness' to the legal issue, rather than the 6th amendment test of 'custody', the result was inevitable and the refusal to suppress the defendant's non-Mirandized answers was affirmed.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Appeal - Texas Arrest OK for Reckless Driving

In Schuring v. State of Texas, Not Reported in S.W.3d, 2011 WL 1331851 (Tex.App.-Fort Worth), the defendant was in a rollover accident, where he was given an HGN test while strapped to a backboard and arrested for DWI. He admitted that he was driving too fast and lost control. On appeal, he claimed that the officer lacked probable cause to arrest, arguing that the HGN test was invalid. On appeal, the Texas court did a "Texas two-step" around the defendant's claim:

"[T]he offense for which there is probable cause to arrest does not have to be the same offense for which the person is arrested.FN17 That is, the officer's testimony that he arrested Appellant for DWI “is inconsequential because we review whether the facts and circumstances known to the officer[ ] objectively constituted a lawful basis for [the] arrest, regardless of the officer['s] subjective understanding of the motivation or purpose of [his] actions.”

Footnote 17 stated: FN17. See Crittenden v. State, 899 S.W.2d 668, 673 (Tex.Crim.App.1995) (“[A] stop will not be invalidated based on the subjective motivation of a police officer so long as there is an objectively valid basis for the stop.”); Campbell v. State, 325 S.W.3d 223, 240 (Tex.App.-Fort Worth 2010, no pet.) (Dauphinot, J., concurring) (noting in DWI case that officer had probable cause to arrest Campbell for reckless driving)."

Concluding, the appeals court wrote:

"The facts known to Officer Moss at the time of Appellant's arrest gave the officer probable cause to arrest Appellant for reckless driving.FN20 Consequently, we do not address the validity of the trial court's conclusions that Officer Moss could have arrested Appellant for public intoxication or had probable cause to arrest him for DWI.FN21 Because Officer Moss had probable cause to arrest Appellant for reckless driving, we hold that the trial court did not err by denying Appellant's motion to suppress.

Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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.

Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!