DUI Law- Florida Says Drug Stop is Legal

This case comes to DAD from Fort Pierce and Key West Florida Attorney Mike Kessler. (Notice: Beginning in 2012, if you send DAD an appellate decision and your info, if DAD uses it here you will get credit and a link to your site). In May v. State of Florida, the appeals court held that the officer had reasonable suspicion to stop a vehicle where the officer saw a car leave a pharmacy suspected of prescription fraud, followed the car, and saw the occupants pass around a prescription bottle as if each was removing some of the items in the bottle. The police claimed they had observed a brake light violation, but the State stipulated that a stop for such an incident alone would have been invalid. The State then argued the stop was valid based upon the suspected illegal pill-sharing:

"[A]t the suppression hearing the detective testified that from her training and experience, a lot of narcotics violations by hand-to-hand transactions or “sharing of pills” typically occur in the parking lots of pain clinics. She also testified that the pain clinic under investigation was a “cash only” operation, which is the situation with a majority of pain clinics. She further testified that it is common to observe people leaving pain clinics engage in conduct she referred to as “sharing of pills,” in which people “divvy up the proceeds of what they received from the doctor.” She explained that often the drugs obtained by the patient leaving the pain clinic are given to the driver of the vehicle as payment for driving the patient to the clinic. Frequently, the situation is a “sponsorship” arrangement whereby a person in the vehicle supplies the cash to purchase the drugs. In return, for supplying the cash, the sponsor is given some of the drugs. The detective also testified: “But the fact that the pill bottle goes around was suspicious, especially working diversion cases and these types of crimes, people don't share their prescription bottle.”

Even though an objective view of the facts might appear to show only wholly innocent conduct, the court gave great weight to the officer's experience in findsing that the stop was still valid:

"As we observed in Santiago v. State, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006),

Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week, the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.”

(quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)). In Santiago we went on to say that it was not necessary that an officer actually observe drugs change hands to establish reasonable suspicion. Instead, an officer may rely on other circumstances, such as “whether the officer can see either drugs or money being transferred, the officer's narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site.” Id. at 1279.

"A police officer may stop a person for the purpose of investigating possible criminal behavior if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Davis, 849 So. 2d 398 (Fla. 4th DCA 2003). “In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So. 2d 185 (Fla. 1993). “A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge and experience.” Davis, 849 So. 2d at 400 (citing Stevens, 354 So. 2d at 1247 (emphasis added).⁴

Continuing, the court wrote:

"Our prior statements in Benemerito, Santiago, and Davis lead us to conclude that in determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer's perspective and the officer's training and experience.⁵ What may appear to be innocent conduct to the average citizen, who is unaware of how drug crimes are committed, may reasonably appear suspicious to an officer. In this case, the officer testified about a pattern of illegal conduct (“sharing of pills”) which the officer learned through observation and training occurs with regularity at or near cash-only pain clinics. “Sharing of pills” is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal “sharing of pills.” “Sharing of pills” behavior is a very different illegal drug activity than the hand-to-hand sales transactions involved in Benemerito and Santiago.⁶ As we said in Santiago, observation of drugs is not necessary in the context of hand-to-hand sales of drugs. In the context of “sharing of pills,” it seems to us that observation of the drugs themselves is likewise not necessary and observation of passing a prescription pill bottle is sufficient."

The court thus affirmed the denial of the motion to suppress.

Editor's note: although 'deference to the police officer is found nowhere in the US Constitution,  the presumption of innocence and the requirement of a search warrant are explicitly written therein.

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DUI Law - Drugged Driving Trial Doesnt Need Expert Say Pa Court

In Pennsylvania v. Griffith, --- A.3d ----, 2011 WL 5176800 (Pa.) the issue presented was whether expert testimony is required to convict a defendant of driving under the influence of a drug or combination of drugs, when the drugs in question are prescription medications. The trial court concluded that expert testimony was required under this statutory provision, and this appeal then ensued.

The facts showed that on May 31, 2006, Appellee was charged by criminal complaint with driving under the influence of a drug to a degree which impairs the ability to drive safely, following an incident that took place on May 5, 2006. The criminal complaint was based on an eyewitness's account of the reckless and dangerous manner in which Appellee was driving; on a police officer's observations of Appellee, including her failure to pass three field sobriety tests; and on the detection in Appellee's blood of Diazepam (Valium), at 95 nanograms per milliliter, and Nordiazepam, at 220 nanograms per milliliter, along with Appellee's acknowledgement that she had taken a different prescription medication, specifically, Soma 350, on the morning of the incident. Police also found prescription pill bottles for Soma in the open center console of Appellee's vehicle.

A bench trial was held on March 7, 2007, at which only two individuals testified: the eyewitness who observed Appellee's reckless driving and then called 911, and Officer William H. Dillman, the experienced police officer who responded to the call. In addition, the parties stipulated that both Diazepam and Nordiazepam are Schedule IV controlled substances, and that the amounts found in Appellee's bloodstream were, respectively, just below or in the therapeutic range. The trial court convicted Appellee.

A divided panel of the Superior Court reversed Appellee's conviction. Although no member of the panel disputed the trial court's finding that Appellee was incapable of safely driving on the afternoon of the incident that led to her arrest, the majority held that the evidence was insufficient to sustain Appellee's conviction. Commonwealth v. Griffith, 985 A.2d 230, 235–36 (Pa.Super.2009). Under the majority's reasoning, the laboratory tests revealed only the presence of prescription medications in Appellee's blood, and it was improper for the fact-finder to infer the effect of those prescription medications on the human body in the absence of expert testimony. Id. at 236. The majority contrasted the generally understood intoxicating effect of alcohol with the various effects of prescription medications: the effect of alcohol “is widely known and recognized by the average layperson, [but] the same cannot be said [concerning the effects] of prescription medications.” Id. Accordingly, the panel majority set forth a rule requiring expert testimony as to the effects and interactions of prescription medications when such medications are the alleged intoxicants in a subsection 3802(d)(2) prosecution. Id.

The statute at issue is the following:

(d) Controlled substances.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of following circumstances:


(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

On appeal from the appellate court's reversal of the conviction, the Supreme Court concluded that expert testimony was not an absolute prerequisite, stating:


"After analyzing the relevant statute in its entirety and in its proper context and considering the Superior Court's analyses discussed above, we decline to read into subsection 3802(d)(2) a mandatory requirement for expert testimony to establish that the defendant's inability to drive safely was caused by ingestion of a drug, even if it is a prescription drug, or drug combination. We do not dispute that in some cases, depending on the specific facts and circumstances, expert testimony may be helpful, or perhaps even necessary, to prove causation under subsection 3802(d)(2), but we decline to hold that the need for expert testimony is inherent in the statutory provision and thus mandatory in all cases."


"Our decision derives, in large part, from a comparison of those provisions of Section 3802 that concern alcohol consumption versus those that concern drug usage. Most of the alcohol-related provisions, i.e., subsections 3802(a)(2), (b), and (c), prohibit driving after an individual has imbibed sufficient alcohol such that the alcohol concentration in that individual's blood or breath reaches certain, specific levels within two hours after driving. To prove the specific level of alcohol in the defendant's blood or breath at the relevant time, a blood or breath test is obviously required. In contrast, under the general impairment provision set forth in subsection 3802(a)(1), a blood or breath test to determine alcohol level is not required; rather, a different standard is used, to wit, “imbibing a sufficient amount of alcohol such that [one] is rendered incapable of safely driving.” We have made clear that Section 3802 neither specifies nor limits the type of evidence that the Commonwealth may proffer to prove its case under subsection 3802(a)(1). Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009) (citing Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa.Super.2006)). Although the Commonwealth may proffer evidence of alcohol level and/or expert testimony to establish that the defendant had imbibed sufficient alcohol to be rendered incapable of driving safely, it is not required to do so under subsection 3802(a)(1). Id. This is well-established, long-standing law in Pennsylvania. See, e.g., Commonwealth v. Horn, 150 A.2d 872, 875 (Pa.1959) (under a prior version of the statute, making clear that medical opinion is admissible but not required to prove that a defendant operated a motor vehicle while under the influence of intoxicating liquor). As we stated in Segida, supra at 879, “[r]egardless of the type of evidence that the Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on the inability of the individual to drive safely due to consumption of alcohol-not on a particular blood alcohol level.” Thus, as an important practical consequence of this statutory scheme, a drunk driver who declines to submit to a blood or breath test to determine alcohol level can still be charged with and convicted under subsection 3802(a)(1) if the Commonwealth can prove that he or she drove after imbibing a sufficient amount of alcohol such that he or she was rendered incapable of safely driving."

The General Assembly chose to construct a similar statutory framework with regard to prohibitions against driving after drug usage. First, subsection 3802(d)(1) prohibits one from driving if there is any amount of a Schedule I controlled substance, any amount of a Schedule II or Schedule III controlled substance that has not been medically prescribed for the individual, or any amount of a metabolite of a controlled substance in one's blood. Analogously to subsections 3802(a)(2), (b), and (c) for alcohol intoxication, subsection 3802(d)(1) requires a measurement to determine if any amount of a Schedule I, II, or III controlled substance is detectable in the defendant's blood. Second, and analogously to subsection 3802(a)(1) for alcohol intoxication, subsection 3802(d)(2) prohibits driving if one is “under the influence of a drug or combination of drugs to a degree which impairs [one's] ability to safely drive.” This provision by its plain text does not require that a drug be measured in the defendant's blood, nor does it specify any particular manner by which the Commonwealth is required to prove that the defendant was under the influence of a drug. Like subsection 3802(a)(1), see Segida, supra at 879, subsection 3802(d)(2) does not limit, constrain, or specify the type of evidence that the Commonwealth can proffer to prove its case. Given the general nature of subsection 3802(d)(2)'s prohibition, the textual similarity of subsection 3802(d)(2) to subsection 3802(a)(1), and Section 3802's overall structure, we decline to impose a requirement for expert testimony in all prosecutions under subsection 3802(d)(2)."

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DWI Law - Missouri Drug Recognition Protocol Opinion Challenged

Modern day courts, often stocked with pro-State judges and former prosecutors, are loath to take on challenges about police procedures. In Missouri v. Savick, --- S.W.3d ----, 2011 WL 3628889 (Mo.App. S.D.) the defendant was convicted of follwing a court ruling allowing an officer to testify that he believed Defendant was under the influence of a central nervous system stimulant, based upon a drug recognition evaluation. On appeal, the court reviewed the DRE protocol:

"A drug recognition evaluation is designed to allow an officer to detect what category of controlled substances may have rendered an individual impaired or intoxicated and is based upon observations of certain characteristics which are known to be exhibited by an individual who is under the influence of a specific category of controlled substances. The evaluation looks for indicators of seven drug categories—entral nervous system depressants, central nervous system stimulants, anesthetic dissociatives, narcotic analgesics, inhalants, cannabis, and hallucinogens—and consists of twelve standardized steps: (1) administer a breath alcohol test; (2) interview the arresting officer; (3) conduct a preliminary examination of the individual to rule out alcohol or medical impairments; (4) administer an HGN test; (5) administer the Romberg balance, walk-and-turn, one-leg stand, and finger-to-nose tests; (6) take the individual's vital signs, including pulse, blood pressure, and temperature; (7) examine the individual's eyes with a penlight in a dark room; (8) examine the inside of the individual's nose and mouth; (9) examine the individual's muscle tone; (10) interview the individual; (11) form an opinion regarding whether the individual is under the influence of a particular category of controlled substances; and (12) request a urine sample for toxicological analysis."

The appellate court avoided the ultimate issue in the case, namely the DRE protocol's validity and reliabiliuty, by finding that ruling on the issue was unnecessary. Here's how they did it:

• First. they re-stated the exact appellate issue written by the defendant:

"The trial court erred and abused its discretion when it permitted Detective Gooden to testify over [Defendant's] foundation objection that it was Gooden's opinion, based on a drug recognition evaluation, that [Defendant] was under the influence of a central nervous system stimulant at the time he was driving, in violation of [Defendant's] rights to due process of law and a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. The State failed to demonstrate that the ability to determine intoxication from a specific drug category from a drug recognition evaluation without a toxicology examination was generally accepted in the scientific community, a necessary foundation for expert testimony."

• Second. The appeals court interpreted the issue stated as having only preserved the propriety of the officer's opinion, rather than the entire DRE protocol itself:

"Defendant only challenges Gooden's opinion testimony that Defendant was under the influence of a central nervous system stimulant, or step 11 of the drug recognition evaluation. Our review is limited to those issues raised in an appellant's point relied on and subsequently expounded upon in an appellant's argument. See Rule 84.04(e) as made applicable by Rule 30.06(c); State v. Morrow, 541 S.W.2d 738, 740 (Mo.App.1976). Consequently, the remainder of Gooden's testimony, including his observations during all of the other steps of the drug recognition evaluation, may be considered by this Court as unchallenged and properly before the jury. On that basis, it is impossible to conceive that a reasonable probability exists that but for Gooden's statement that he believed Defendant to have been under the influence of a central nervous system stimulant, the jury would have acquitted Defendant of driving while intoxicated."

• Third. The court, then stating that all of the other steps in the DRE had gone unchallenged, found that:

"Assuming, without deciding, that the trial court abused its discretion in admitting Gooden's opinion testimony, Defendant cannot succeed in his argument because he has not and cannot show the requisite outcome-determinative prejudice resulting from such admission. In order for error to be prejudicial and thus require reversal, it must be shown that, but for the admission of the challenged evidence, there is a reasonable probability that the result would have been different."

Today's case is thus a perfect example as to how many appellate issues are avoided by the courts simply through artful dodging of the issues at hand. Counsel are cautioned to make appeals airtight to avoid such results.


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DWI Appeal - Notice and Demand Statutes and the Right of Confrontation

After SCOTUS approved of the use of notice-and-demand statutes, counsel needs to be conscientious of these provisions. In State of New Jersey v. Heisler, --- A.3d ----, 2011 WL 1885670 (N.J.Super.A.D.) the defendant was charged with (and convicted of) driving under the influence of marijuana. The New Jersey statute first requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and “all reports relating to the analysis in question.” Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate.

In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.

The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:

"We find persuasive defendant's argument that he was not obliged to object to the introduction of the lab certificate until ten days after receiving supporting lab reports and data. To rule otherwise would undermine the dual goals of the notice and demand statute, N .J.S.A. 2C:35–19: (1) to enable defendants to make informed decisions regarding whether to object; and (2) to conserve time and resources of State Laboratory personnel by avoiding unnecessary court appearances. Because defendant objected before the State furnished him with the supporting materials, his objection was timely. Therefore, the court erred in admitting the lab certificate without testimony from the lab analyst and an opportunity for cross-examination."

The case was remanded for a new trial. Of note was the appellate court's additional ruling barring the State from admitting the lab evidence:

"However, the State shall not have the opportunity to call the lab analyst and to cure the initial error of admitting the lab certificate. “A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial trial which were necessary to support a conviction.” State v. McLendon, 331 N.J.Super. 104, 108 (App.Div.2000)."

Lastly, there was an interesting discussion of how to deal with defense attorneys who ALWAYS object to lab reports and insist on confrontation:

While we have discouraged a defendant's “pro forma insistence” that the author of a lab certificate appear in court, we have recognized the defendant's right of confrontation. State v. Kent, supra, 391 N.J.Super. at 380; see also id. at 385–90 (Stern, J., concurring) (concluding that the Supreme Court would apply the Confrontation Clause protections to defendants in prosecutions for quasi-criminal violations involving driving while intoxicated). A defendant need not justify his or her decision to exercise his or her constitutional right of confrontation. An accused is entitled to confront the lab certificate's author, so long as a timely objection is made. State v. Rehmann, ––– N.J.Super. ––––, –––– (App.Div.2011) (slip op. at 5) (“Prior to Melendez–Diaz, we recognized the accused's right to confront the author of a BAC certificate.”); State v. Kent, supra, 391 N.J.Super. at 375 (holding that “defendant was constitutionally entitled to cross-examine the declarants who authored” laboratory reports and blood sample certificate); id. at 382 (stating that defendant may waive his confrontation right by failing to make timely demand for the author's appearance)."

"The effective operation of the notice and demand statute depends in part on the presumption that, as a practical matter, “in the majority of cases a defendant will not challenge the certificate ‘either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance.’ “ State v. Simbara, supra, 175 N.J. at 49 (quoting State v. Miller, supra, 170 N.J. at 431). However, if the defendant is unable to determine, because of the absence of laboratory data, whether there is a basis to wage a “true contest” over the nature of the substance, then the defendant may lodge a protective objection."

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Drug Arrest Reversed Illegal Drug Dog Sniff

In Pfeiffer v. State of Texas, Not Reported in S.W.3d, 2011 WL 1734065 (Tex.App.-Texarkana) the defendant unsuccessfully challenged the validity of his continuing seizure in order to bring a canine unit to the scene following a lawful traffic stop. The facts were described as follows:

On March 22, 2007, on Highway 37 North, about a mile north of Clarksville, Red River County, Texas, State Trooper Matthew Kuhelengel stopped Lavern A. Pfeiffer's truck because the truck did not have mud flaps. Kuhelengel questioned Pfeiffer about his identity, place of residence, and travel destination. The officer twice told Pfeiffer that he was going to give him a warning about the mud flaps, and after checking Pfeiffer's license through dispatch, determined that he had no outstanding warrants. Upon further questioning by Kuhelengel, Pfeiffer admitted that he “got a DWI” thirty years prior. Pfeiffer then denied Kuhelengel's subsequent requests for permission to search the vehicle. Noting that Pfeiffer was “talking a lot,” “very nervous,” and that he had been “arrested a bunch of times,” Kuhelengel requested a canine unit and continued to detain Pfeiffer until it arrived. After the dog showed a positive response on the rear passenger door, a crude pipe was found in the rear floorboard and a bottle of methamphetamine was found in the front console. Pfeiffer was arrested and charged with possession of a controlled substance.
Pfeiffer argued that the warrantless search violated his Fourth Amendment rights because it lacked requisite cause and because he was illegally detained after the traffic stop was completed. The trial court denied Pfeiffer's motion. Pfeiffer pled guilty and received a ten-year probated sentence. On appeal, Pfeiffer argues that “his continued detention by the police was without sufficient cause, rendering the later search of his vehicle invalid.”

On appeal, the court agreed with the defendant and reversed. The court summarized the law on prolonged detention as follows:
"During a routine traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Caraway, 255 S.W .3d at 307. If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex.App.-Houston [14th Dist.] 2006, no pet.). When the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41 (Ginsburg, J., concurring)). Once the officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that another offense has been or is being committed. Id. at 245."
The appeals court found that during the stop, Pfeiffer was unquestionably very nervous, and he tended to ramble when questioned. However, without more, the facts and circumstances present did not give rise to reasonable suspicion to allow the detention to be prolonged once the purpose for the original stop had been completed.

EDITORS NOTE: Had the drug dog arrived during the time that the initial purpose of the stop was still unfolding, the 'sniff' would have been lawful and the subsequent search upheld. See Illinois v. Caballes. The above case is all about the LENGTH, rather than the SCOPE, of detention.


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DUI Appeal - Illinois DUI Drug Law Based on Slightest Amount

In People v. Martin, --- N.E.2d ----, 2011 WL 1499909 (Ill.), the defendant was convicted of Aggravated DUI causing death. The evidence at trial revealed that the defendant crossed the centerline while traversing a curve in the road, hitting another vehicle head-on and killing the 2 occupants. A blood test revealed no drugs in the system. A gas chromatography mass spectrometry test revealed no drugs in the urine. A more specific mass spec test eventually revealed a barely detectable amount of a metabolite associated with methamphetamine. The defendant confided to a friend that “I have done crystal meth before, but I was not on crystal meth that night.” The State presented testimony from Anderson, a State Police forensic scientist, who analyzed two urine samples taken from the defendant that night at the hospital. Anderson stated unequivocally, and to a reasonable degree of scientific certainty, “I found methamphetamine in both of the urine samples that I tested .” Dr. Staubus stated that the urine samples did not contain detectable or realistic amounts of amphetamines, but he did not dispute that there was any amount, even a trace, of methamphetamine in the defendant's urine.

The Supreme Court found that the law does not require the State to prove that the drugs caused or contributed to the accident in order for a defendant to be guilty of the felony charged. rather, all that is required is that the defendant's driving must be a cause of the accident, and that there is some trace amount of a controlled substance in his system.

The Court reasoned that requiring the State to prove actual impairment, or that the drugs contributed to or caused the death of the person, was not what was intended by the legislature:



“There is no dispute that the statute is intended to keep drug-impaired drivers off of the road. At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and drug to drug. In this range, depending on the drug and depending on the person, some will be impaired and some will not be impaired at all. * * ** * * The flat prohibition against driving with any amount of a controlled substance in one's system was considered necessary because ‘there is no standard that one can come up with by which, unlike alcohol in the bloodstream, one can determine whether one is * * * driving under the influence.’ “

Citing to other cases in Illinois and Arizona, the Court continued:

"Indeed, while it is possible to determine scientifically the amount of alcohol that renders a driver impaired, it is not possible to do the same for drugs. Rodriguez, 398 Ill.App.3d at 439, 339 Ill.Dec. 158, 926 N.E.2d 390. “Unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment from such drugs because they are fundamentally different from alcohol. Essentially, there can be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability.” State v. Phillips, 178 Ariz. 368, 873 P.2d 706, 710 (Ariz.Ct.App.1994).

Concluding, the Court stated:

"A driver with controlled substances in his body violates section 11–501(a)(6) simply by driving. When an aggravated DUI charge is based on a violation of that section, section 11–501(d)(1)(F) requires a causal link only between the physical act of driving and another person's death. In such a case, the central issue at trial will be proximate cause, not impairment."

Editors Comments: People v. Martin (found here: http://www.state.il.us/court/Opinions/SupremeCourt/2011/April/109102.pdf) is a complete embarrassment to our state's jurisprudence, in my opinion. Aggravated DUI Causing Death is in fact our state's version of vehicular homicide, as it is referred to in other states. (We used to call it Reckless Homicide) In Martin, the Supreme Court held that a person could be convicted of Aggravated DUI Causing Death when the amount of drug found ONLY in their urine (the blood was clean) was so infinitesimal that it couldn't have impaired anyone (in fact it was so small that it also couldn't be found using a gas chromatography/ mass spectrometry -the gold standard- and had to be found using a more specialized form of mass spectrometry). In other words, if 2 people performed the same act - crossing the center line and negligently causing the death of another - then the driver found with .001 nanogram of a controlled substance goes to jail for 3-14 years, while the other isn't even charged with a crime.

Frankly, the above example IS what People v. Martin is all about - sentencing past drug users to jail as status offenses. An equal protection violation. Can you imagine what will happen when modern science is so accurate that they can find an amount of drug in your system from years ago (they can already use your hair to go back about one month per inch of length)?

Not to mention, that the Supremes erroneously claimed that the legislature intended the proximate cause issue to apply only to bad driving and not to the use of the drug itself. How did they do that? They took another statute - driving with any amount in the system - a misdemeanor - and used that statute to create out of whole cloth the fallacy that these senators also meant that there need not be a proximate cause to the drug use when they passed AN ENTIRELY DIFFERENT SET OF LAWS MAKING AGG DUI DEATH A FELONY.

My understanding of statutory construction in criminal cases suggests that ALL penal statutes are strictly construed in favor of the accused. People v. Martin doesn't even mention this construct, because to acknowledge its existence would force them to apply it.

And here's another insult to both forensic science and intellectual thinking - the Supremes held that, since one cannot tell if a person is impaired from a drug based on the level in their system alone, then we should just presume EVERYONE is impaired. Read that out loud to yourselves slowly - since we don't know who is actually guilty of the crime, we should make everyone guilty of the crime! In fact, there are presumptive levels of drug impairment that are published in medical journals, as well as employed in certain states. Further, there IS a way to determine whether someone is under the influence of drugs - it's called a medical EXAM! That's right - doctors and toxicologists are specifically trained to determine if a person is being 'influenced' by drugs in their system. And Mr. Martin's doctors, as well as ALL of the experts, could not say the defendant was impaired. So what do the Supremes decide is the best course of Illinois Jurisprudence? Find him guilty due to a LACK of REAL EVIDENCE.

People v. Martin takes the concept of strict liability (there is no mens rea for DUI) and combines it with the newest concept (no causation for the actus reus either) and makes Illinois the class clowns of modern forensic/criminal law. Could you imagine if we took all misdemeanors, and turned them into homicides simply because there was a death that was caused by from an unrelated act of negligence? Shame, shame, shame......



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DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


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DUI Appeal of the Day (DAD) - Coming down from drugs, indictment variances

In United States v. Gonzales, Slip Copy, 2010 WL 5392644 (D.Ariz.), the driver was charged with DWI after admitting that she passed out or fell asleep at the wheel, having used cocaine and amphetamine/methamphetamine the night before the crash. Gonzales sought to preclude testimony from government expert witness Terrence O'Hara (“O'Hara”). O'Hara is expected to testify regarding the signs and symptoms of impairment by cocaine and methamphetamine, regarding the toxicological effects of those two drugs, that a person will come down from the use of the drugs and may pass out or fall asleep, regarding the depressant effects of the drugs on the human body, and that the behavior and driving behavior of Gonzales was consistent with someone under the influence of the substances. Gonzales asserted that O'Hara was not an expert on the topics he proposes to testify about, that O'Hara did not conduct an evaluation of Gonzales at or near the time of the Defendant's driving, and that O'Hara's testimony is irrelevant to the charges. Gonzales argued that a drug recognition expert (“DRE”) is generally dispatched to the scene of a traffic stop, at the request of another officer who is investigating a DUI, where the DRE examines the suspect for certain characteristics. The DRE will then make a determination of whether there is probable cause to arrest based on the suspected used of drugs; a suspect is then ordered to submit to a chemical test or tests which would conclusively establish the presence or drugs in the person's system. Gonzales pointed out that she was not arrested, nor did police conduct a field investigation relating to impairment. In other words, no one made an assessment of Gonzales' physical characteristics to determine if she was under the influence of alcohol or drugs at the time of driving. The defendant argued that, although O'Hara was a certified DRE, the failure to perform a DRE evaluation rendered any opinion that O'Hara may give susceptible to exclusion under Daubert. Additionally:

Gonzales argues that the experts have stated unequivocally that one cannot conclude that, because drugs or metabolites are found in an individual's system, that the individual still had some amount of drugs in her system, or that the individual was “coming down” from the drugs, or even when the individual had ingested the drugs and that there are too many variables involved to conclude with any degree of medical accuracy whether the individual was under the influence of drugs, based on the presence of drugs in their urine. This, however, is an issue to be presented and argued to a jury rather than precluding the witness; i.e., this argument goes to the weight of the evidence rather than its admissibility.


The trial court denied the defendant's attempt to bar the expert pre-trial, and instead found the issue went to weight rather than admissibility. Additionally, the defendant sought to dismiss Count 1 on the basis that the government was going to prove a different theory of guilt than that for which she was indicted:

Gonzales argues that the original indictment charged her with committing aggravated assault because she was intoxicated and under the influence of drugs (not that she was tired), thereby causing an accident which resulted in serious physical injury to the child. Gonzales argues that the government constructively amended its theory of the case, claiming that at the time of the accident, Gonzales had come down from the effect of the drugs she had previously ingested, as a result of which she became sleepy.

The law on constructive amendment states that, after an indictment has been returned, its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (court cannot permit a defendant to be tried on charges that are not made in the indictment against him). A constructive amendment occurs when the terms of the indictment are effectively modified by the presentation of evidence or by actions of the court so that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment. United States v. Thomas, 274 F.3d 655, 669 (2nd Cir.2001). Further, an unconstitutional amendment of the indictment occurs when the charging terms are altered either literally or constructively, such as where the evidence offered at trial proves facts materially different from those alleged in the indictment. See e.g. United States v. Helmsley, 241 F.2d 71 (2nd Cir.1991); United States v.. Zingalo, 858 F.2d 94 (2nd Cir.1988). When a prejudicial variance, i.e., when the charging terms of the indictment are not changed but evidence offered at trial proves facts materially different from those alleged in the indictment, United States v. Frank, 156 F.3d 332 (2nd Cir.1998), dismissal is appropriate.

In denying the motion to dismiss, the appeals court reviewed the grand jury transcript, and found that Count 1 of the indictment, alleging an assault "while under the influence" did not limit government proof to the traditional element of a state-law-DWI; rather, it allowed for proof of an assault by any consequence of DWI, including the possibility of "coming down". Therefore the motion to dismiss was denied.

The case itself is interesting, as the theory of "coming down" from drugs is unique. However, from a defense standpoint, the two motions presented by the defense are valuable - if a DRE tries to opine without performing a DRE evaluation, is this evidence subject to a Daubert hearing? Secondly, if the government's theory of guilt changes post-indictment, can it be barred/dismissed under due process? I have filed motions in limine in the past, where the defendant is arrested while passed out in a car, but at trial the government argues to the jury to find the defendant guilty because he likely drove while under the influence to get there. This motion has prevailed on several occasions to prevent such an argument.


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