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.

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OWI Appeal - Implied Consent Warnings Don't Violate Separation of Powers Clause

Today's case, Columbia County v. Devos, Slip Copy, 2011 WL 1885961 (Wis.App.) is being included in DAD due to the defense attorney's creativeness and 'moxie'. Here, the attorney argued that the addition of extra language in the implied consent warning was not authorized by the legislature, and thus its inclusion violated the separation of powers clause.

The contested 'additional' language was as follows:

“In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.”

The appellate judge found that the extra language was in fact authorized by another section of the Code besides the section with the original language, and so there was no error.

However, DAD enjoyed the creativity of the argument, and feels that under the correct factual conditions, it could be a valid theory of defense.

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DUI Appeal - Washington Says Implied Consent is Criminal Punishment

In State of Washington v. Yallup, --- P.3d ----, 2011 WL 839682 (Wash.App. Div. 3), a tribal Indian was stopped inside his reservation, on a state highway, and arrested for DUI and driving while suspended. Under the implied consent laws, his blood was also drawn. On appeal, the defendant challenged the jurisdiction of the state to charge him. Indian sovereignty prevents a State from imposing laws inside an Indian reservation that are merely regulatory or non-criminal. Here, if the court found that the implied consent laws were civil in nature, the blood result would be inadmissible. Using a result-driven analysis, the court held that implied consent laws are primarily criminal in nature:

The implied consent statute, RCW 46.20.308, was adopted to “control or reduce the drunk-driver hazard to highway safety.” State v. Moore, 79 Wash.2d 51, 53, 483 P.2d 630 (1971). It operates by recognizing that drivers have consented to alcohol testing by the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be withdrawn in some circumstances, but the license to drive will be suspended when consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn, evidence of the refusal to take the test “may be used in a criminal trial.” RCW 46.20.308(2)(b). The statute was upheld in Moore against various constitutional challenges, with the court recognizing the statute “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver.” 79 Wash.2d at 58, 483 P.2d 630.

The clear focus of the implied consent statute is gathering evidence for prosecuting criminal cases of suspected impaired driving. Statutes that authorize evidence collection in support of prosecuting criminal cases are properly classified as criminal in nature. To the extent that the difference between criminal and civil jurisdiction even matters under RCW 37.12.010(8), we have no trouble categorizing the implied consent statute as criminal.
NOTE: This approach leaves the prosecution open to attacks under the double jeopardy clause - if a defendant receives an implied consent suspension, then any subsequent criminal prosecution would place the driver in criminal jeopardy twice.


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DUI Appeal of the Day (DAD) - "You Are Under Arrest" is not an 'arrest' at Common Law

In Young v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 690655 (Va.App.) the defendant was arrested in Virginia. Virginia has a statute that requires, inter alia, that the defendant must be 'arrested' prior to submitting to a blood or breath test. Further, the arrest must occur within 3 hours of the offense for the implied-consent provisions to be applicable. On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.FN1 Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2-73. At the time of the offense, Code § 19.2-73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2-266.”

The defendant claims that he was not 'arrested' within the terms of the law because he was not taken into physical custody. he cites to valid caselaw that holds that the mere words of an officer, telling a defendant "You are under arrest" is not sufficient to constitute an arrest:

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).FN3 Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626-27 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2-478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

Ultimately, the Virginia court held that the issuance of the summons, coupled with the words of the arrest, were sufficient earmarks to constitute an arrest. Additionally, the court used the intent of the statute, and under the doctrine of pari materia, looked at other statues dealing with similar actions and found that the intent was to allow catch-and-release summonses as 'arrests' for purposes of the Virginia laws.

The dissent also made valid points:

It is important to note that Trooper Finch issued the summons after the blood sample was taken, and not prior to it.

Because the Virginia Court found that an arrest had occurred prior to the defendant's submission to a blood draw, the Court affirmed the conviction and the admission of the result.

EDITORS NOTE: Although the Virginia Court disagreed with the defense, this argument has some validity. Further, the issue of an arrest also triggers the appropriate probable cause issue at the time of arrest - not afterwards.

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DUI Appeal of the Day (DAD) - No Collateral Estoppel says S. Ct. Wyoming

In Elliott v. State of Wyoming, --- P.3d ----, 2011 WL 662662 (Wyo.), 2011 WY 32, NCDD member Michael Vang obtained a ruling in the implied consent hearing, that the arresting officer lacked probable cause to charge his client with DWI. Vang sought to enforce this fining in the separate criminal action. The matter came before the Supreme Court of Wyoming as a certified question. As rephrased by the Court, the question to be decided was:

Does collateral estoppel apply to an Office of Administrative Hearing [examiner's] ruling that found an officer lacked probable cause to arrest a defendant under Wyoming's implied consent statute, for the same incidents resulting in the defendant's conditional plea for DWUI?

[Elliott] and his attorney were the only participants in any of the implied consent hearings resulting in the findings of no probable cause to arrest for DWUI that [Elliott] was attempting to use as collateral estoppel and res judicata as a basis to dismiss the underlying DWUI charge that was the basis of the conditional plea and if the issue is resolved in favor of [Elliott] it is a dispositive issue that will result in dismissal. The Supreme Court acknowledged that the preclusion doctrine of collateral estoppel applies in the administrative context. Citing to the Restatement, the court noted:

Even if the elements of collateral estoppel are met, several exceptions may apply:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:

(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; or

(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or

(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or

(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or

(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Restatement (Second) of Judgments § 28 (1980).

In declining to apply collateral estoppel, the Court pointed out the following:

"[W]e disagree that privity similarly exists between WYDOT and the offices of the county and district attorneys involved. “Privity is not established ... from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts.” 47 Am.Jur.2d, Judgments § 589. Here, WYDOT is only granted the authority to suspend a driver's license after an arrest and to thereafter defend that suspension in an administrative context. See Wyo. Stat. Ann. §§ 16-3-103, 16-3-104, 16-3-112; 31-5-233; 31-6-102, 31-6-103 (LexisNexis 2009). On the other hand, the county and district attorneys are responsible for prosecuting, investigating, and representing the State of Wyoming in all criminal matters." (Editors comment: this 'difference' is farcical: the mere fact that 'one is named Jones, and one is named Smith' really doesn't explain why privity does not exist between two agencies performing the same task while interpreting the same statutes and the same issues and the same case opinions and the same constitutional issues, albeit it they do so in two different proceedings)

Additionally, the court found that the prosecutors were denied the full and fair opportunity to litigate the issue:

"[W]e are persuaded that county and district attorneys, because of the nature of their offices, are denied a full and fair opportunity to litigate any issue in an administrative hearing."

Quoting from an Illinois case and adopting its rationale, the court repeated the holding in People v. Moore:

"The court explained that the legislative purpose of license suspension hearings was to provide an expeditious means of having a defendant's case heard in the context of an extremely limited scope. ( People v. Moore (1990), 138 Ill.2d 162, 169.) In finding that the doctrine of collateral estoppel did not preclude the litigation of certain issues previously decided at the defendant's suspension hearing, the court stated:

“[I]f these proceedings were given preclusive effect, it would render meaningless this legislative purpose. That is, the practical effect would be that the State could not rely on the sworn police report at these proceedings but, rather, would be required to have the arresting officer, and other witnesses, testify. The goal of conducting swift hearings for the sole purpose of determining whether a court has sufficient reason to rescind summary suspension of a motorist's driving privileges will be thwarted. Given this probable result, and the fact that no injustice will be done to either party by declining to give preclusive effect to these license suspension hearings, we decline to do so.”

All is not lost, however. The Montana Supreme Court's ruling explained why collateral estoppel could not flow from an administrative hearing to the criminal case. On the other hand, the rationale for so doing leaves it clear that collateral estoppel from the criminal case to the administrative hearing could still be applied, in those unusual circumstances where the criminal ruling goes first. On a personal note, I wish to commend Mr. Vang for his efforts in this arena, as many of us followed his efforts as this matter unfolded...


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