DUI Appeal - Wyoming Drunk Forklift Operator

In Harvey v. State of Wyoming, --- P.3d ----, 2011 WL 1533156 (Wyo.), 2011 WY 72, NCDD member Michael Vang appeared before the Supreme Court of Wyoming (for at least the 2d time in 1 year). Here, the defendant was driving a forklift at the speed of about 5 miles per hour on the shoulder of a highway. The issue on appeal was whether the highway patrolman had reasonable suspicion to contact Appellant for failure to equip his forklift with a slow moving vehicle emblem.

The driver did not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argued that the failure to display such an emblem was not a violation of Wyo. Stat. Ann. § 31–5–921(d) and, accordingly, it did not provide the trooper with probable cause to initiate the traffic stop.

The court noted that the statute required “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour” to display a slow moving vehicle emblem, and then concluded that the statutory language therefore unambiguously included forklifts.

Thus, the court found that the officer had a valid basis to stop the vehicle for failing to display the emblem, and upheld the implied consent suspension.


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DUI Appeal - Alaska DUI Hearing Officer Bars Evidence Attacking Illegal Stop

In Alvarez v. State of Alaska, --- P.3d ----, 2011 WL 923224 (Alaska) the Supreme Court was asked to decide a number of issues, including whether the exclusionary rule applied to suspension hearings, whether the hearing officer abused the process by refusing to authorize subpoenas, and whether a 2 1/2 year delay before a suspension hearing denied the defendant due process of law.

In answering the issue of the delay, the facts indicated that on September 28, 2003, Alvarez agreed to take a breath test after a DUI arrest, but did not produce a readout until the fifth try. Alvarez recorded a breath alcohol concentration of .091 percent. It appears that at least one other officer was in the room with Perez to help him use the breathalyzer. Officer Perez issued an order revoking her license and giving her notice that the revocation would be effective in seven days in the absence of a request for an administrative hearing. Alvarez was subsequently charged with driving under the influence. She timely requested a hearing, and as a result was issued a temporary license. The hearing was scheduled for six months later. Sometime after the cop arrested the defendant, he was deployed to Iraq. On February 26, 2004, Alvarez wrote to the hearing officer requesting subpoenas for the Ketchikan Public Safety Director and the Records Custodian at the Alaska State Highway Department in Ketchikan. In the same letter, Alvarez also asked her if Perez would be subpoenaed. The hearing officer denied Alvarez's requests for subpoenas, and informed her that she did not intend to subpoena Perez.

The first hearing took place on March 22, 2004. Alvarez was present, and she called a witness to testify that she was sober the night she was arrested. She also testified on her own behalf. The hearing officer decided to continue the hearing until Perez's return from Iraq. The hearing was ultimately rescheduled for March 10, 2006, almost two years later, once Perez had returned. On March 1, 2006, just nine days before the hearing, an attorney entered an appearance on behalf of Alvarez. He immediately requested a continuance to review the evidence. The next day the hearing officer denied the request. On March 9, one day before the hearing, counsel for Alvarez requested the hearing officer to subpoena the evidence custodian for the Ketchikan Police Department, and the hearing officer denied his request. The hearing went ahead telephonically on March 10, but Perez, who was supposed to call in, did not. The hearing officer rescheduled the hearing for April 27.

Perez appeared telephonically at the April 27 hearing. The hearing officer had only two questions for Perez. Alvarez then thoroughly cross-examined Perez, whose memory of events varied. During the hearing, the hearing officer prevented Alvarez from asking Perez questions concerning whether Perez had reasonable suspicion to stop Alvarez. The hearing officer reasoned that the exclusionary rule does not apply to license suspension proceedings, and therefore it was irrelevant whether or not Perez had reasonable suspicion to stop Alvarez. The hearing officer suspended Alvarez's license for 90 days.

On appeal, the defense raised the issue of whether the delay violated the defendant's due process rights. The due process clause entitles an individual to "a meaningful hearing at a meaningful time". Factors to consider in determining whether due process has been violated fall under the Mathews v. Eldridge framework for evaluating whether administrative proceedings satisfy due process. These include (1) the private interest that the official action affects, (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens, in implementing additional safeguards.
The appeals court found that the due process rights of the defendant were not violated, relying heavily on the fact that the defendant was granted a temporary license during the delay. Additionally, the fact that much of the evidence was audio and video recorded also militated against the prejudice of 'faded memories'.
Insofar as the exclusionary rule was concerned, the court found without any logical explanation, that a driver could not challenge the lawfulness of the initial stop (which they suggest involves the exclusionary rule) in a suspension hearing, except where police action “shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom.” In a footnote, the opinion also stated that there may also be an application of the exclusionary rule "where a Fourth Amendment violation stems from a lack of probable cause for a DWI arrest, exclusion may well be mandated because probable cause is an affirmative statutory element of the offense of refusal and is an affirmative element for proof in the license revocation proceeding. Second, ... a search for blood evidence in direct violation of ... statutory prohibitions would probably require exclusion of the test results in a subsequent administrative license revocation proceeding..."

Another interesting argument by the defense that also was rejected, was that the court should have considered the rehabilitation of the driver over the 2 1/2 year delay by the time the suspension was issued. She based the argument on an Alaska case that a driver's license suspension for drunk driving is “remedial” rather than “punitive” because of the direct relationship between the suspension and the State's goal of removing unsafe drivers from the road. The court stated:

"Suspending the driver's license, even after a long delay in which the driver drove unexceptionably, still furthers the administrative goal of protecting the public and removing unfit drivers from the road. The suspension serves to deter future unfit driving, and creates a record for the DMV of a driver's overall fitness. The DMV has wide latitude to carry out its mandate to protect the public from unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's goals that it is “remedial” rather than “punitive,” despite the delay."


NOTE: Overall, there was nothing more that the hearing officer could have done to thwart the defendant's attempt at a fair hearing - from denying subpoenas, to delaying the hearing, and then refusing to sanction the noncompliance of the State. This case is an example of jurisprudence run amok for the purpose of achieving one goal - the removal of accused (but not necessarily guilty) drunk drivers from the road.


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DUI Appeal of the Day (DAD) - Revocation Period for Out-of-State DUI Conviction

In DiGregorio v. registrar of Motor Vehicles--- N.E.2d ----, Mass.App.Ct. , 2011 WL 522063 (Mass.App.Ct.), the defendant was a Massachusetts driver who frequently visited Connecticut. He has a long history of driving infractions in both States. In 1997, he was convicted in Massachusetts of OUI, his first such conviction. He was then convicted of OUI in Connecticut on April 18, 2000. For this conviction, Connecticut suspended his driving privileges in that State, and on May 24, 2000, Connecticut placed a notice of that suspension in the National Driver Register (NDR), an interstate repository for the sharing of driving records. The Massachusetts registrar did not learn of the out-of-State conviction or suspension at that time. He was again arrested in Connecticut for OUI in June of 2004. He was convicted of that offense on October 4, 2004 (his second OUI conviction in Connecticut and his third overall). However, the registrar apparently had no occasion to check the NDR database at this time and instead first learned of the 2004 Connecticut incident from her review of NDR records in April of 2007.
Because DiGregorio had been convicted for a third time of driving a motor vehicle while under the influence of intoxicating liquor (OUI), the Registrar of Motor Vehicles (registrar) was prohibited by statute from restoring his driving privileges until after 8 years. The main issue on appeal had to do with when the 8 years began - from the date of conviction, or from the date the DMV learned of the out-of-state conviction.
Ultimately, the case was resolved based on the specific language of the state statute; under the express terms of that subsection, the registrar is prohibited from restoring the driving rights of a third time offender “until eight years after the date of conviction.” The principal argument of the DMV was that relying on the date of conviction for out-of-State violations would create serious adverse policy consequences, because the registrar retains no control over the timeliness of the information that other States enter into the NDR system. Specifically, they suggested that relying on the “date of conviction” would allow hazardous drivers back on the road sooner or allow them to escape due punishment. As the opinion stated:

"This argument ignores the maxim that “[w]here ... the language of the statute is clear, it is the function of the judiciary to apply it, not amend it.”

As it is likely that other states have similar delayed notice and/or reporting issues, this case may come in handy in shortening the length of a suspension or revocation therein.


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Hearsay Not Admissible to Establish PC at IC Hearings

In South Carolina Department of Motor Vehicles v. Larson, --- S.E.2d ----, 2011 WL 204795 (S.C.) the issue was whether a non-testifying Sergeant’s observations of the driver could be admitted through the testimony of another officer at the implied consent hearing, even if it constituted hearsay. Recognizing that such hearsay was admissible for probable cause purposes at a preliminary hearing in the criminal case, the Supreme Court of South Carolina still said NO! The Court stated that by law, the IC hearing was governed by the ordinary rules of evidence, which bar hearsay. The court distinguished the important differences between a preliminary hearing, and a drivers license suspension hearing, and also distinguished the caselaw offered by the State in support of using hearsay at the implied consent hearing:

“We find these cases are inapplicable to a driver's license suspension hearing. A preliminary hearing, as its name suggests, is not a final adjudication of a defendant's rights. Instead, a preliminary hearing merely serves as a determination of whether there is sufficient evidence to subject a defendant to further criminal proceedings. See Rule 2, SCRCrimP (providing for preliminary hearings and stating in part that “Any defendant charged with a crime not triable by a magistrate shall be brought before a magistrate and shall be given notice of his right to a preliminary hearing solely to determine whether sufficient evidence exists to warrant the defendant's detention and trial”); State v. Ramsey, 381 S.C. 375, 376, 673 S.E.2d 428, 428-29 (2009) ( “The purpose of a preliminary examination is to determine whether probable cause exists to believe that the defendant committed the crime and to warrant the defendant's subsequent trial.”).

In contrast, a license-suspension hearing may potentially terminate an important interest of the licensee. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (“Once licenses are issued, ..., their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.”); Hipp v. S.C. Dep't of Motor Vehicles, 381 S.C. 323, 325, 673 S.E.2d 416, 417 (2009) (“A person's interest in his driver's license is property that a state may not take away without satisfying the requirements of due process.”).

Because a license-suspension hearing constitutes a final adjudication of an important interest, we believe the Legislature promulgated section 56-5-2951 in such a way that guards against an automatic or rote elimination of this interest. Specifically, this section sets forth several statutory prerequisites that must be established before a Hearing Officer suspends a citizen's driver's license following an arrest for DUI. In the instant case, a determination of whether McCarson was lawfully arrested or detained for DUI. By including this element in section 56-5-2951, the Legislature placed the burden on the Department to present sufficient evidence of probable cause.

Given the significant difference between a preliminary hearing and a license-suspension hearing, we decline to extend the probable cause cases relied on by the Department to circumvent the well-established rules against hearsay. Thus, in proving that a driver was lawfully arrested or detained for DUI, the Department must present admissible evidence of probable cause. If we were to find otherwise, we would essentially render meaningless the procedure established by our Legislature in section 56-5-2951.”

Many states have statutes that read “The hearing shall proceed in the same manner as in other civil proceedings” or language to that effect. Perhaps it is time for the defense bar to re-visit to your respective states’ forums for these suspension hearings, and ask that they too bar hearsay.


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