DUI Appeal of the Day (DAD) - Collateral consequences, DUI, Child Endangerment

On occasion, the DAD column has discussed the various collateral consequences that can occur from DUI, such as FAA, CDL, life insurance, bankruptcy, punitive damages, etc. The case of In Re D. McD.,--- A.3d ----, 2010 WL 5116131 (Vt.), 2010 VT 108 is another such event. here, the Supreme Court of Vermont had to determine whether having his two six-year-old children in the vehicle while driving intoxicated constituted a "risk of harm" under Department of Children and Family Services (DCFS) proceedings. “Risk of harm,” is defined in Vermont as a “significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.” Such a determination would cause the driver's name to be placed in the child protection registry, alongside child sexual molesters and child abusers. Under the statutory scheme in place, the only question before the Board was whether a reasonable person would believe that the child was placed at a substantial risk of harm due to the petitioner's actions on the date in question. Petitioner's ex-wife and his therapist opined that petitioner had learned from the incident and that he was unlikely to pose a risk of harm to children in the future. The Board also noted that an internal DCF assessment had rated petitioner as a negligible risk for future abuse or neglect of his children. In light of all the circumstances, the Board concluded that petitioner was unlikely to pose a risk of future harm to children and he thus should not be included in the registry. DCF appealed.
On appeal, the Supreme Court reversed, holding that all of the subsequent mitigation was irrelevant to the analysis. "The Board was not asked to decide petitioner's future risk of harm, and petitioner's rehabilitative efforts, while laudable, were irrelevant to the question before the Board. The Court remanded for a correct analysis. "On remand, the Board must apply DCF's policy on single egregious acts to determine if petitioner placed his children at risk of harm. Thus, the Board must consider whether a reasonable person would believe that: “[t]he parent or caretaker did the act alleged; [t]he act was egregious; [t]here was a significant risk that the child could have been physically injured as a result; and, [t]he physical injury would be serious.”

Editors note: The number of cases involving drugged and drinking mothers (or fathers) with children in the car is increasing. In fact, I handled one with Justice Scalia's daughter involving 5 children in her vehicle. Further, such conduct can be a basis for separate charges (i.e. "Child Endangerment") or increased penalties (same as BAC-based add-ons) or independent proceedings initiated by DCFS. These cases require great care and delicacy, and often a global resolution.


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DUI Appeal of the Day (DAD) - The Right to Contest Restitution

In People v. Smith, Not Reported in Cal.Rptr.3d, 2011 WL 288457 (Cal.App. 6 Dist.), the defendant claimed on appeal that he was deprived of his right to due process when, after pleading guilty to DUI and Inflicting Great Bodily harm, the court ordered defendant to pay $285,525.65 in restitution for the medical bills of the boy who defendant's vehicle had struck and seriously injured. At a subsequent hearing, the court modified the restitution order, again over defendant's objection, so that, instead of the restitution being payable to the boy, the bulk of the money would go to “Healthy Families” and the remaining amount would be paid to the boy's mother. Defendant was never afforded a hearing on the amount of restitution. Defendant's trial counsel objected to the court setting the amount of restitution. The defendant on appeal cited to an earlier case in support of his right to a hearing:

“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Pen.Code, § 1202.4, subd. (f)(1).) “A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” ( People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550 ( Sandoval ).) In Sandoval, the probation report noted the amount of damage but did not recommend that restitution be ordered in that amount. At the sentencing hearing, the court imposed restitution in that amount. Because this order was “unexpected,” the Court of Appeal found that the defendant had been deprived of an opportunity to dispute the amount of restitution. ( Sandoval, at p. 1550.)

The appellate court in the instant case agreed with the defendant:

Here, the probation report did not recommend that the court set the amount of restitution, and defendant's trial counsel had apparently just received the documentation regarding the amount of restitution on the day of the sentencing hearing. Defendant objected and sought the opportunity to contest the amount, but the court did not afford him that opportunity. Hence, as in Sandoval, defendant was deprived of his statutory right to contest the amount of restitution. A remand for a restitution hearing is the appropriate disposition.

Editor's note: This case is helpful in those circumstances where a prosecutor or court feel the need to pressure a defense counsel. Additionally, during these hearings, it may turn out that some of the bills were reduced by medicare, medicaid, or duplicates, etc. It remains the obligation of the defense attorney to verify that all amounts are accurate, and that a defendant's rights are not violated in all aspects of a case.

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DUI Appeal of the Day (DAD) - Unwitnessed violations, Touching Lines, Turn Signal Issues make Bad Stop

In State of Missouri v. Loyd, --- S.W.3d ----, 2010 WL 5150173 (Mo.App. W.D.) the defendant driver exited a casino parking lot, turning right onto the roadway, allegedly without first using a turn signal. On appeal, the court found that a turn signal was not required when turning from private property onto a public highway. Finding that the 'rules of the road' only applied to vehicles on a public roadway, the court also construed the turn signal statute as only requiring signaling when the approach to the turn (where the duty to signal begins) is also on a public roadway. NOTE: most state statutes on turn signals are similar in this regard - does anyone use a turn signal when exiting their driveway?
The State also tried to argue that the defendant violated another law when he turned into the center lane instead of the nearest lane. A videotape confirmed the event. However, the appeals court rejected this incident as a basis for the stop, because:




We need not be detained by this issue because the State concedes on appeal, as it must, that the officer testified at the hearing that he was unaware of this alleged traffic violation until after he reviewed the dash cam video of the incident, which the officer did not review until after he had detained and arrested Loyd. “ ‘Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense.’ “ State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999) (quoting State v. Tokar, 918 S.W.3d 753, 757 (Mo. Banc 1996)). “Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest.” Id .
The above appellate court position is certainly valuable, as many other state courts might uphold stops based on unwitnessed violations., so long as they are on videotape.
The State also tried to support the stop based upon the driver's touching of the center line:
At the suppression hearing, the officer testified that prior to pulling over the vehicle, he observed Loyd's car driving “with its right wheels on the center line as it went around the corner.” The dash cam video supports that Loyd's tires did touch, but not cross, the white stripes dividing the lanes. This Court has previously held that such a minor deviation does not provide the police probable cause to detain the driver in order to cite him for a traffic violation. “[T]here is extensive case law from numerous jurisdictions holding that slightly crossing over the fog line once or twice for a moment does not, in and of itself, justify a traffic stop.” State v. Abeln, 136 S.W.3d 803, 810, n. 7 (Mo.App.W.D.2004) (citations omitted); see also State v. Mendoza, 75 S.W.3d 842, 845-46 (Mo.App.S.D.2002) (holding that driving “onto but not over the left yellow line” did not “justify the issuance of a warning,” and therefore finding that the police “lacked probable cause or reasonable suspicion to stop Mendoza's vehicle”).


Also of interest in this case is the discussion regarding the correct procedure for preserving error when a motion to suppress is denied:



While Loyd argued his motion to suppress immediately prior to the beginning of trial, it is not disputed that he failed to preserve his claim in this regard at trial through an appropriate objection. “Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review.”



Many states have similar requirements. As a result of Loyd's failure to preserve the error, he had to appeal under a more onerous ground - the plain error rule. Although in this case the defense was ultimately successful on appeal, at trial defense counsel should always renew the objection to admission of evidence based upon a denial of a motion to suppress.



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The Westerner: The Whiskey Speech

The Westerner: The Whiskey Speech: "The fools have adjourned and a friend sent this great speech given at the adjournment of another august body. Play it just like you do the S..." 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 - Attorney Advice Renders Illegal Search Admissible

In Anderson v. State of Alaska, --- P.3d ----, 2011 WL 255164 (Alaska App.) the driver was involved in an accident on a snowy day, where he struck and killed a pedestrian. The police transported the defendant to the station, and erroneously informed him that he was required to submit to drug and alcohol testing simply due to the fact that he had been in an accident. The defendant sought and obtained a consultation with an attorney, who advised the defendant to submit. The trial court found that they had illegally detained Anderson when they transported him to the police substation. However the trial judge concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.

On appeal the appellate court agreed that the attorney's advice vitiated the illegality, and rendered the submission consensual:

The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls. There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent.

Interestingly, the court does not find that the attorney's advice to submit was patently incorrect:

The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him. Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident.

Perhaps because the court found that the defendants decision to submit might have been a calculated attempt towards exoneration, then the act of submission was considered voluntary. Perhaps if the defense attorney had admitted to his own erroneous understanding of the law, the result might have been different. At any rate, counsel should be extremely careful if they take a late-night call such as the above, to ensure that all possibilities are considered before advice is rendered.


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DUI Appeal of the Day - Sentencing, Culpability, Lesser Includeds

In Colon v. State of Florida, ---So.3d ----, 2011 WL 248549 (Fla.App. 5 Dist.) the defendant is convicted of multiple counts of leaving the scene of an accident involving death, vehicular homicide, and failure to report an accident. He maintained his innocence during trial and at sentencing. Based in part on his claim of innocence - that he wasn't the driver - the court sentenced him to the maximum of 30 years in prison.

On appeal, the court found that the convictions for leaving the scene and failing to report violated double jeopardy; the appellate court finding that they constituted the same offense (the failing to report being a lesser-included offense of leaving the scene).

Also, the court found that the trial court's reliance on the defendant's claim of innocence as a basis for the sentence was also constitutionally impermissible:

A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence, but “it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).


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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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DUI Appeal of the Day (DAD) - Defense Barred from Attacking Urine Alcohol Testing

In State of Minnesota v. Dixon, Not Reported in N.W.2d, 2011 WL 68050 (Minn.App.), the defense attorney argued on appeal that the trial court erred in barring from presenting any evidence regarding or attacking the reliability of the urine testing method, including the barring of defense experts. The theory that the defense intended on presenting was, inter alia. That first-void urine alcohol testing is unreliable and inaccurate. The appellate court upheld that trial court decision, and barred such evidence in its entirety. It stated as follows:

“Minnesota courts have rejected challenges to the use of urine tests based on the “urine-pooling theory,” which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-39; Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999). In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. Hayes, 773 N.W.2d at 139. In Genung, this court stated that BCA urine-testing procedures “have been found to ensure reliability” and “do not require voiding once before producing the test sample.” 589 N.W.2d at 313. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, “it is insufficient as a matter of law to prove that the ‘testing method’ is not ‘valid and reliable’ “ under the implied-consent statute. Hayes, 773 N.W.2d at 138. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examine the state's BCA expert witness on that theory.”

This case represents the dangerous slope that courts have taken to beat down defense attacks on modern science. The mere fact that a court has reviewed a scientific theory under Daubert or Frye and it has been found acceptable for admissibility purposes, does not equate to proof that such method of testing is infallible. This ruling confounds those two principles (i.e. reliability and uncertainty) and improperly denies the defendant his right to a defense. Sad.


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DUI Appeal of the Day (DAD) - Prior Refusals Do Not Qualify as a 'Prior' for DWIs

This case comes to DAD's attention thanks to New Jersey member Steven Hernandez. In State of New Jersey v. Ciancaglini, --- A.3d ----, 2011 WL 148910 (N.J.), the defendant was sentenced as a third-timer, based upon a prior conviction for refusing a breath test. The Supreme Court of New Jersey unanimously held that a prior refusal was not a prior conviction for sentencing purposes. The case itself was based upon a statutory interpretation of the language in the DWI statute referring to prior 'violations'. In New Jersey, the DWI statute and the Refusal statute are separate and distinct from each other. Employing the "well-established principle that penal statutes must be strictly construed", the court found that the term 'violations' was too vague to include prior refusals, as opposed to prior DWIs only. Said the Court:

"Moreover, while the record was not fully developed as to whether defendant's 2006 refusal conviction was incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have had to do so in clearer language."

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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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DUI Appeal of the Day (DAD) When the Expert Can't Add or Subtract

In State of Maine v. Caron, --- A.3d ----, 2011 WL 82197 (Me.), 2011 ME 9, the defendant was charged with DUI following a rollover accident resulting in serious injuries to the vehicle's other occupant. At trial, the issues included whether defendant (or the victim) was the driver, and also extrapolation of the defendant's blood alcohol back to the time of driving. The State's expert testified that he concluded that the defendant was the driver based upon the defendant's "left-sided injuries" and the victim's :right-sided injuries". The state expert also calculated the defendant's BAC to be above the limit at the time of driving.


On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.



Finding no error in the trial court's determination that the expert was competent, the appellate court stated:



As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.



We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-alcohol test.

The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).

(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)


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DUI Appeal of the Day (DAD) - Suicidal Stop Reversed

In State of Ohio v. Dunn, Slip Copy, 2010 WL 5452112 (Ohio App. 2 Dist.), 2010 -Ohio- 6340, a police officer received a dispatch notice that there was a suicidal male driving a tow truck and that he was planning to kill himself when he arrived at certain location. The dispatcher gave Appellant's name as the driver and mentioned that he had a weapon. The dispatcher noted that the vehicle was a “big rig” tow truck displaying the name “Sandy's” towing company. Officer Brazel spotted the tow truck and called for backup assistance before initiating a traffic stop. Butler Township police arrived and the two officers signaled for Appellant to pull over. After stopping the rig, Appellant immediately exited the vehicle and was visibly upset and crying. The officers saw Appellant holding a cell phone, but did not observe any weapon. The officers drew their weapons, patted Appellant down and handcuffed him. They did not find any weapon on his person other than a small pocketknife. As Officer Brazel was walking back to his police cruiser, Appellant stated: “[I]t's in the glove box.” The officer asked him if he was referring to the gun, and Appellant said “yes.” Butler Township Sergeant Stanley checked the glove compartment and found a loaded weapon, and he confiscated and secured the weapon. Neither officer had explained the Miranda rights in any fashion to Appellant during or after these events. Officer Brazel drove Appellant to Good Samaritan Hospital to be involuntarily committed. During the drive, Appellant told the officer that he had been having problems with his wife and that he intended to shoot himself after he dropped off his tow truck.
The defendant filed a motion to suppress, alleging that the stop was unlawful. The trial court denied the motion. The trial court determined that the police were acting in response to an emergency and found that the need to protect or preserve life provided the exigent reasonable circumstances to justify the traffic stop.

The trial court also found that the police officers did not engage in custodial interrogation, and therefore, Appellant's voluntary comments made during the traffic stop should not be suppressed. The defendant was convicted and this appeal ensued. The defense argued on appeal that, because the arrest was based on a police dispatch bulletin, the state was required to establish the factual basis of the bulletin at the suppression hearing. The appeals court agreed, stating that the dispatcher did not testify at the hearing, and the record was completely devoid of any evidence to show that the dispatcher had a reasonable basis to issue the dispatcher's bulletin. The appellate court stated that "because there was no factual basis established for the traffic stop, all evidence deriving from the stop should have been suppressed." The court further elaborated:

In the instant case, there is nothing in Officer Brazel's testimony to establish the basis for the dispatcher's bulletin that led to Appellant's traffic stop. Although the parties mention in their appellate briefs that Appellant's wife was the informant, and it is possible that all of the parties understood this to be the case, the record is completely silent to this fact at the suppression hearing. Officer Brazel testified that he did not know who the informant was at the time and had no direct conversation with the informant. (Tr., p. 19.) In fact, there is no information about the informant contained anywhere within the transcript of the suppression hearing. Nothing in Officer Brazel's testimony explains what precipitated the dispatcher to send a report that Appellant was suicidal and had a gun in the vehicle. Because Officer Brazel was the only person who testified at the suppression hearing, and the officer supplied absolutely no testimony relative to the information, we must conclude that the state did not fulfill its burden to establish that the police dispatcher had a reasonable basis to send the bulletin which led to the traffic stop.

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DWI Appeal of the Day (DAD) - Blood Search Warrant Insufficient

Rarely does any DWI reported out of the Texas appellate courts end well for the defendant. This is one of those rarities. In Farhat v. State of Texas, --- S.W.3d ----, 2011 WL 56056 (Tex.App.-Fort Worth), the defendant was arrested for DWI by Corporal Finley. Corporal Finley then prepared a sworn affidavit for a blood-draw search warrant, and the magistrate subsequently signed a search warrant based on the affidavit.

The case presents a good summation of search warrant law, both federal and state:

The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.

The affidavit in support of the blood warrant states, in total,

On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.

The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:

In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.

In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *

The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.


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DWI Appeal of the Day (DAD) -Precluding Defendant's Use of PBT Denies Due Process

In Fischer v. Hollen, Attorney General of Wisconsin, --- F.Supp.2d ----, 2011 WL 66029 (E.D.Wis. 2011), the defendant field a habeas corpus petition, alleging that he was denied due process when the State of Wisconsin barred him from presenting the defense that his BAC was below 0.08 at the time of driving, and that the PBT result was proof of the same. The defendant had been charged with and convicted of OWI. He planned on using the PBT result, and then expert testimony, to prove he was under the limit of 0.08 at the time of driving. The trial court barred the PBT, and also his expert's resulting opinion. The Wisconsin Supreme Court upheld the preclusion, finding that a PBT is never admissible in an OWI trial. In this appeal, the federal court found that the Wisconsin Supreme Court's ruling denied the defendant the right to present a defense to his charges, in violation of his constitutional rights. The State of Wisconsin then filed this motion "to alter or amend judgment." The motion was denied. Some of the court's findings and statements are highlighted below:

The respondent contends that the court also erred when it discussed a probability that Fischer would have been acquitted had the expert's testimony been admitted and believed by the jury. As stated above, Fischer was convicted of both operating with a prohibited alcohol concentration, see Wis. Stat. § 346.63(1)(b), and operating while under the influence, see Wis. Stat. § 346.63(1)(a). Although found guilty of two crimes, for sentencing, there is only one resulting conviction, and the same sentence would have been imposed whether Fischer was found guilty of either or both offenses. See Wis. Stat. § 346.63(1)(c). The respondent contends that the excluded expert testimony was relevant only to the operating with a prohibited alcohol concentration offense and thus, even if the expert testimony had been admitted and believed by the jury, Fischer would still have been convicted of operating while under the influence and received the exact same sentence.

One need look only to the instructions given to the jury to understand the significance of the BAC evidence in the operating while under the influence charge. The jury was instructed as follows with respect to the operating while under the influence charge:

If you are satisfied beyond a reasonable doubt that there was .08 grams or more of alcohol in 100 milliliters of the defendant's blood at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant at the time of the alleged operating ... but you are not required to do so.

* * *

Evidence has been received that within three hours of the defendant's alleged operating of a motor vehicle a sample of the defendant's blood was taken. An analysis of the sample has also been received. This is relevant evidence that the defendant had a prohibited alcohol concentration and was under the influence at the time of the alleged operating.

Under certain circumstances, it is theoretically possible that a jury could find a person guilty of operating while under the influence even though it found that the defendant's BAC was below the legal limit. However, as to the converse, if the jury finds that the defendant's BAC is over the legal limit, based upon the instructions quoted above, a guilty verdict on the operating while under the influence charge is almost sure to follow. Thus, the fact that Fischer was convicted of operating while under the influence may simply reflect the jury's conclusion that Fischer's BAC exceeded the legal limit.

Hypotheticals aside, as a practical matter, BAC evidence is the coup de grâce of a drunk driving case. A jury that concludes that an individual's BAC is below the legal limit is exceptionally unlikely to convict the defendant of any drunk driving crime. Thus, under the circumstances of a case such as this, a conclusion that a defendant's BAC was below the legal limit will almost surely result in an acquittal of not only the operating with a prohibited alcohol concentration charge, but also of the operating while under the influence charge. This is the likely result, even though under certain circumstances, a conviction might be obtained for the under the influence charge, despite the defendant operating with a legal BAC. Therefore, re-considering the respondent's present argument, the court remains convinced that the interest of the defendant in the admission of the PBT evidence so strongly and clearly outweighs the interest of the state in barring the admission of the evidence that the Wisconsin Supreme Court's decision affirming Fischer's conviction was unreasonable.


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DUI Appeal of the Day (DAD) - When is Blood being Drawn for Medical Purposes?

In Arizona v. Hansen, Not Reported in P.3d, 2010 WL 5549045 (Ariz.App. Div. 2) the driver was involved in a single-car accident and eventually transported by ambulance to a hospital. (Interestingly, no injuries to this driver are ever described or mentioned in the opinion). At the hospital, the officer requested that if hospital personnel drew Hansen's blood for any medical reason, they also retain a sample for DPS purposes. A hospital employee then drew blood from Hansen apparently using two needles, one for a blood draw ordered by the attending physician and the other to fill two vials provided by the officer. DPS analysis of the second sample revealed a blood alcohol concentration of .207.

In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:

Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.

¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).

IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:

Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.


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DUI Appeal of the Day (DAD) - The “blackout” defense

The case of Mahanes v. Shugars, --- S.W.3d ----, 2011 WL 43302 (Ky.App.) is not a DUI case. It is a personal injury lawsuit where Mahanes admitted causing the collision that injured the plaintiff. The defendant alleged he suffered a blackout that caused him to lose control of his car and eventually strike Mahanes' truck, and was therefore not responsible for the accident. In Kentucky, this is known as the 'blackout defense'. Many states have such a defense, which relieves the defendant of civil liability.

Under the “blackout” defense,

"where the driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. However, once a prima facie case of negligence has been made against the defendant he must demonstrate that the sudden illness or incapacity could not have been anticipated or foreseen."

Trial evidence covering two days showed Shugars' blood pressure was 240/136 soon after the crash. He was treated for hypertension, kidney failure and swelling of the brain. The jury

Editor's thoughts: If a 'blackout' can be used to avoid civil liability, then proof of a blackout (as opposed to intoxication) should have an equal or better footing in a criminal DUI case... just thinking....

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DUI Appeal of the Day (DAD) - Judgment of acquittal based on the margin of error

In Kansas v. Finch, --- P.3d ----, 2011 WL 43926 (Kan.) the defendant was arrested for DUI and took a breath test, the result of which was 0.08. The trial proceeded solely on the charge of driving with a BrAC of 0.08 or greater. At trial, the defense crossed the breath operator about the margin of error (for those with interest, the below opinion contains a great portion of the cross, which revealed a recalcitrant cop who was unwilling to admit that the machine was less than 100% perfect). When the state rested, the defense moved for judgment of acquittal as a matter of law (this was a jury trial). The trial court, commenting that he found the breath cop less than credible on the margin of error, and also noting that he was aware of testimony from other trials where the margin of error was admitted to be =/- 0.007, granted the motion.


On appeal, the higher court found the trial courts ruling improper. Under the standards applicable, once the state puts in a result of 0.08 or more, then they have met their initial burden of proof (prima facie in a light most favorable to the State). In reversing though, the appeals court rejected the state's attempt to bar introduction of any evidence of a margin of error or other errors in the measurement of the breath (commenting that the state is trying to "overegg the pudding"). In fact, the court held that the margin of error, if proven, should be considered by the trier of fact in arriving at a verdict at the close of all evidence. The court suggested that the jury could accept or reject the margin of error evidence.



Editors notes: there is controversy over whether a margin of error can defeat a per se count as a matter of law. Further, the appeals court advised that it is improper for a trial court to take notice of testimony dehors the record.

Counsel should always be prepared to prove up a margin of error independent of the breath operators testimony, such as manufacturer's records, government studies, or experts.

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DUI Appeal of the Day - Hearing Officer's refusal to authorize subpoena improper

In Florida Dept of Hwys and Motor Vehicles v. Auster, --- So.3d ----, 2010 WL 5391552 (Fla.App. 5 Dist.), the defendant sought to challenge her suspension for refusing a breath test, based upon her claim that she had timely recanted her refusal to submit to a breath test. In that regard, she sought to subpoena the breath technician to confirm her claim. The hearing officer, upon whose authority the subpoena must issue, refused to authorize the same. She then lost the hearing, and appealed. On appeal, the court stated:

A hearing officer is expressly authorized to issue subpoenas for officers and witnesses identified in the documents submitted by a law enforcement officer pursuant to section 322.2615(2). See § 322.2615(6)(b), Fla. Stat. (2008). Here, Caner was identified in these documents. Furthermore, according to DHSMV's own rules, the procedural due process rights afforded a driver seeking formal review of a license suspension under section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” See Fla. Admin. Code R. 15A-6.013(5). The question of whether Auster timely rescinded her refusal to submit to a breath test is a relevant issue.

Continuing, the appellate court held that:

Where the witness' expected testimony would be relevant to the issues within the limited scope of the review hearing and would not be clearly cumulative, due process considerations require the hearing officer to issue a subpoena if the hearing officer has the authority to do so.

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DUI Appeal of the Day - Drunk Driving Laws and Americans with Disabilities Act

In Bircoll v. Miami-Dade County, 480 F.3d 1072, 34 NDLR P 107, 20 Fla. L. Weekly Fed. C 371 (2007), the defendant was a deaf person, who sued after being wrongfully arrested for DUI. He claimed that the police officer's procedures for arrest and custody violated his rights under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). The appeals court held that:

(1) To take reasonable steps to accommodate the disability of profoundly deaf motorist who had been arrested for driving under the influence (DUI), as required under the Americans with Disabilities Act (ADA), arresting officer had to take appropriate steps to ensure that his communication with motorist was as effective as with other individuals arrested for DUI. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.
(2) waiting for oral interpreter before taking field sobriety tests was not reasonable modification of police procedures, in which officer who stopped motorist on suspicion of driving under the influence (DUI) had to engage to accommodate motorist's profound deafness;
(3) Actual communication between police officer and deaf motorist whom he had stopped on suspicion of driving under the influence (DUI) was not so ineffective that oral interpreter was necessary to guarantee that motorist was on equal footing with DUI suspects who were not hearing-impaired, and to protect motorist's rights under the Americans with Disabilities Act (ADA), where motorist admitted that he read lips and usually understood 50% of what was said, where officer, in addition to verbal instructions, gave physical demonstrations, and where motorist understood that he was being asked to perform field sobriety tests and actually tried to perform at least three of those tests; and
(4) Arresting officer took steps reasonably necessary to establish effective communication at police station with the profoundly deaf motorist whom he arrested for driving under the influence (DUI), and did not discriminate against motorist in violation of provision of the Americans with Disabilities Act (ADA), where officer not only read consent form aloud to motorist twice in lighted room to afford him an opportunity to lip read, but provide him with written copy of form, and where motorist acknowledged that he could read English; motorist's own failure to read what officer provided him did not constitute discrimination.
(5) Even assuming that corrections officers failed to accommodate motorist's disability, by requiring him to use ordinary telephone to attempt to communicate his arrest to his girlfriend, this lack of accommodation did not injure motorist or support cause of action under the ADA.

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DUI Appeal of the Day - Collateral Estoppel OK for Wyoming DUI

In Bowen v. Wyoming Dep't of Transportation, -- P.3d ----, 2011 WL 9617 (Wyo.), 2011 WY 1, the defendant appealed from an administrative decision, finding that the driver was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding. On appeal, the Supreme Court of Wyoming was asked to decide whether collateral estoppel coud be applied from a criminal case to a civil license administration case. Most states have previoulsy ruled that collateral estoppel should not apply from an administrative hearing (implied consent) to a criminal case, under various theories. One theory involves the fact that the implied consent hearing is summary in nature, so that a 'full and fair' adjudication may not occur. Another theory preventing collateral estoppel from a drivers license suspension hearing and a criminal DUI case could be that the parties are not identical (one involves the DMV where the other involves District Attorneys and the 'People').

The Wyoming Supreme Court analyzed the issue as follows:
The issue raised in this appeal is one of first impression for this Court. Furthermore, we are unable to find authority from any other jurisdiction addressing this particular factual scenario.FN3 Nevertheless, we find application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court's determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. When applying collateral estoppel to an issue raised in a civil action, which issue was previously litigated in a criminal action, we have said that criminal proceedings present a defendant with a full and fair opportunity to litigate the issues because a criminal defendant has strong incentives to defend vigorously the charges against him. Worman v. Carver, 2002 WY 59, 21, 44 P.3d 82, 87-88 (Wyo.2002). In this case, the criminal proceedings afforded the appellant a full evidentiary hearing wherein he offered evidence, examined witnesses, and made arguments. FN4

FN3. We note that courts have addressed the applicability of collateral estoppel under other circumstances involving criminal and administrative cases. See Huelsman v. Kansas Dep't of Revenue, 980 P.2d 1022, 1025-27 (Kan.1999) (suppression of evidence in DUI prosecution based on lack of probable cause did not collaterally estop state from arguing in license suspension proceeding that officer had “reasonable grounds” to request a breath test pursuant to the implied consent law); State v. Young, 530 N.W.2d 269, 273-77 (Neb.Ct.App.1995) (holding that collateral estoppel does not require a criminal court to accept as binding an administrative proceeding's license revocation determination); In re Mehrer, 273 N.W.2d 194, 197 (S.D.1979) (no collateral estoppel in license revocation proceedings despite dismissal of DUI charge against defendant in criminal case because different elements must be proven to show DUI versus violation of implied consent laws); City of Manhattan v. Huncovsky, 913 P.2d 227, 232 (Kan.Ct.App.1996) (criminal court not collaterally estopped from deciding validity of breath test where agency questioned validity of breath test results and dismissed administrative proceedings).


We conclude that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.FN5 The OAHs determination is affirmed.

The Wyoming Supreme Court refused, however, to issue a bright-line ruling. Instead, they ruled that each case would have to be decided on a fact-specific basis. Thus, it is likely that a party can always get a "second bite at the apple" if they have additional evidence to present:
FN5. We note the limited nature of our decision in this matter. Although we find that collateral estoppel applies under these specific circumstances, the same may not be true in other similar situations. For example, we cannot say that collateral estoppel would always bar an administrative body from addressing an issue previously decided by a criminal court; nor does this holding stand for the proposition that a criminal defendant should be collaterally estopped from arguing an issue in his criminal case that had previously been decided in an administrative proceeding. Neither of these questions, nor any others not specifically addressed, were raised by the parties nor do they arise under the facts of this case.
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Fired Madison County prosecutor worked the day of his DUI arrest - From the online desk - bnd.com#ixzz1ABpRwozX

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DUI Appeal of the Day - Improper Lane Usage

In Illinois v. Hackett, --- N.E.2d ----, 2010 WL 5420188 (Ill.App. 3 Dist.), the trial court granted the motion to quash arrest and suppress evidence. The testimony revealed that the defendant crossed over the lane divider between the northbound lanes at least twice. He argued that he may have been avoiding potholes, although the officer (Blouin) testified that he didn't see any potholes. Upholding the trial court's ruling, the majority stated:
There are too many innocent circumstances that might cause a motorist to momentarily and inadvertently inch across a lane divider to find that such action, without more creates probable cause to arrest.
In this case, by Blouin's own admission, defendant's tires only slightly crossed the lane divider for mere seconds before defendant continued to operate his vehicle entirely in the left-hand lane of traffic. Instructive and in stark contrast is Smith, where the defendant drove with his wheels straddling the lane dividers by six inches on opposite sides of the street on two separate occasions, effectively driving in three lanes of traffic for approximately 150 yards each time. With regard to the second requirement of the statute, nothing in Blouin's testimony provides any bases to find that if defendant did change from the left lane of traffic to the right, however briefly, he did not do so without first determining that it was safe. The evidence does not provide grounds upon which to find that defendant's driving endangered himself, pedestrians, or other vehicles at any time.
The fun part of this opinion involves the unusually course banter between the majority and the dissent.

The majority wrote the following:
FN1. The dissent, typically and predictably, resorts to ridicule, hyperbole, personal anecdotes and observations, assaults on positions not taken by the majority, quotes taken out of context, and facts outside the record to attack a legal analysis with which he does not agree. If the majority decision is indeed wrong, it should be possible to demonstrate that error in a mature and professional counteranalysis.
The dissent countered with:

This opinion would not standup to a Vinny Gambini cross-examination. I can only think of that renowned trial lawyer's cross-examination of witness Mr. Tipton regarding the time it took to cook grits on Tipton's stove. Vinny Gambini would undoubtedly ask whether the law of physics cease to exist on highways in the Third District allowing a vehicle to travel for four seconds with its tires in two separate lanes and yet not be “actually driving in more than one lane of traffic.” Was this a magic pickup truck? Did the defendant buy his truck from the same guy that sold Jack his beanstalk beans? If the defendant was not actually driving in more than one lane of traffic, what was he “actually” doing? Just what is a reasonably appreciable distance? How does an officer decide? The majority leaves no workable rule.

I could write a four-volume dissent on this case, picking apart one silly sentence after another in the majority opinion. However, I will stop here. The thrust of the majority opinion is that the majority believes that police should not be able to stop people for minor traffic violations. I suppose we all feel that way when we are stopped for one. This is the appellate court; we do not get to rewrite the law based upon our feelings about it. The supreme court and the legislature have that power. We do not. Clearly, the officer had probable cause to stop the defendant for improper lane usage. The supreme court's decision in Smith is not ambiguous. Whether the defendant inadvertently or intentionally swerved twice across the lane divider lane is irrelevant. The majority opinion stands the law on its head and creates a totally unworkable scheme for traffic law enforcement. Do we apply the same analysis to speeding? Must one speed for a “reasonably appreciable distance” to violate speed laws?

*10 Illinois has five appellate courts and one supreme court. Our supreme court does not have the resources to correct every wrongly decided appellate decision. The majority undoubtedly is banking on the fact that the court will have more pressing matters before it and not grant a petition for leave to appeal on this matter. With all due respect, the majority opinion is nonsense, plain and simple. Even worse, it endangers the lives of the motoring public by limiting the ability of police officers to stop erratic drivers. I dissent.
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DUI Appeal of the Day - Serial Conniver Loses Appeal

Recently, the DAD column has discussed the introduction of prior DUIs into evidence to establish 'recklessness' or 'malice aforethought' in subsequent DUI-death cases, where manslaughter or murder charges are included. Below is another use for priors at trial. In Michigan v. Amine, Not Reported in N.W.2d, 2010 WL 5346019 (Mich.App.) yet another basis for introducing a prior DUI has been approved - common scheme or design (referred to as "common system" in the below opinion). Here, the defendant was arrested for DUI, and at trial he claimed that he was not the driver. In fact, his sister testified that she was driving when the car was in the accident. The court allowed the State to introduce his prior DUI as evidence of a common scheme - that defendant was able to get other people to lie for him. Michigan law (which follows the federal rules here) MRE 404(b)(1) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. Michigan law holds that there is a three-step process for trial courts to use to admit other acts evidence. The evidence must be relevant to an issue other than propensity, relevant under MRE 402 to a fact at issue at trial, and it must survive a MRE 403 balancing process determining if the danger of undue prejudice substantially outweighs the evidence's probative value. In addition, “the trial court, upon request, may provide a limiting instruction under Rule 105.” “Where the only relevance is to character or the defendant's propensity to commit the crime, the evidence must be excluded.” In finding the 2 DUIs substantially similar, the court described them as follows: The issue presented centers on how similar the prior OWI arrest is to the instant case. In both cases, defendant was intoxicated and sitting in the driver's seat of a car when the police arrived. In both cases, defendant denied that he had been driving the car, stated that the driver was someone close to him, and that person confirmed his explanation. In both cases, the car involved was registered to defendant's father. There are some differences. In the prior case, the person who allegedly drove the car was actually in the passenger's seat, whereas, here, the alleged driver was not at the scene when the police arrived. In the previous case, defendant was stopped for not wearing a seat belt. In this case, police arrived because defendant's car hit a fire hydrant. Most notably, defendant's defense each time was that a different person had been driving. Because both his sister, in this case, and the friend, in the prior instance, corroborated defendant's story, the chain of relevance for admitting the evidence must include an inference that defendant is capable of convincing people to lie for him. Ultimately, the appeals court found that the prior DUI was therefore admissible as a evidence of a common scheme, and upheld the conviction. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Flawed blood draw procedures in DUI cases not uncommon

Image via WikipediaEvery jurisdiction has specific procedures in place for DUI blood draws. These procedures exist for a very good reason: to prevent improper draws that could result in flawed test results and the subsequent conviction of innocent people. However, it's not uncommon for local police departments to ignore the important procedures in place and allow unlawful blood draws to occur. This recently happened in Tracy, California. As explained in this Recordnet.com article, for almost 8 months, the Tracy Police Department allowed firefighters to draw blood from suspected drunk drivers. This occurred even though California law specifically excludes firefighters from drawing blood for DUI cases since they are not certified paramedics. According to the article, this error is expected to have an impact on pending and closed DUI cases:

Gil Somera, a Stockton attorney who has defended clients charged with driving drunk, said the validity of the blood sample is vital to a DUI case.

"It is probably the most important component of the evidence," he said.

Somera said the fact that the blood was drawn by firefighters could affect closed cases.

A similar issue was encountered in Indiana last year, resulting in a change to the state's DUI laws, as described in a recent WIBC.com article:

The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification. In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.

However, even after the Indiana law was amended to expand the classifications of people authorized to draw blood, local police departments still allowed unqualified people to draw blood for DUI cases. As explained in the article, in one recent case, an unsupervised and unqaulified lab technician drew blood in the absence of any protocols. Accordingly, the blood test results obtained from the blood draw have been held to be inadmissible, resulting the dismissal of the DUI-related charges pending against David Bisard. The danger of DUI blood and breath testing is in the inaccuracy. There is so much room for error, whether from faulty equipment, errors in the underlying software programming, calibration errors or human error in obtaining the breath or blood sample. These cases are further examples of how error-prone these procedures can be and just go to show that what at first glance might appear to be a fool-proof case against someone accused of DUI, in many cases, is just the opposite.

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Don't drink and drive...a lawn mower

Image via WikipediaSo, we've learned that it's unwise to drink and then drive a: Russian tanker, Barbie cars, motorized lounging chair, golf cart, and a stroller. Now it's time to add a lawn mower to the growing list of odd vehicles operated by DUI suspects. Last week, a Bloomfield, New York man was charged with operating a "lawn tractor" while under the influence of alcohol, as reported in this WHEC.com article:

Pool was allegedly driving on Route 20A when he turned left without signaling. Deputies say Pool had an open can of beer and was operating the tractor in an intoxicated condition.

Once again, the moral of the story seems to be that if you've been drinking, maybe you should just plant to stay wherever you are rather than getting creative about your mode of locomotion. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Datamaster calibration errors in Alaska

Image by Getty Images via @daylifeAlaska now joins the ranks of municipalities investigating errors in calculating BAC levels in suspects charged with DUI. As we've discussed in the past, other states include Pennsylvania, Colorado, California, and Indiana. In Alaska, it recently came to light that the Datamasters used to conduct BAC testing in over 2500 cases over the last few years were calibrated improperly. The specific problem is explained in this Anchorage Daily News article as follows:

The problem involves dry gas tanks, also known as “alco bottles,” used in confirming the accuracy of the DataMaster instruments, which drunken-driving suspects blow into to determine breath-alcohol content. The tanks contain a known sample of alcohol that the instrument measures before and after every test to ensure it is functioning properly. When the state crime lab prepares the bottles, the alcohol levels are measured 10 times and the results are entered into a spreadsheet, which calculates the average value. Because air pressure can affect the test results, the average value is then adjusted to a standard barometric pressure from what it was on the day the tank was tested. But back on Feb. 16, 2006, a trainee and an analyst thought the correction factor didn’t appear right and decided to invert the fraction, said Orin Dym, director of the crime lab. And because it was in a spreadsheet that calculated the values automatically, no one noticed until Dec. 8, 2009... By the time the error was discovered, 48 of the 663 tanks prepared in the years involved had been affected, according to the state. That means 2,465 tests were conducted with equipment that was prepared with the inverted fraction and that had been corrected for the barometric pressure in the wrong direction, according to the Department of Public Safety.

The state concedes that the equipment was tested using flawed quality control standards, but claims that the error didn't affect the actual BAC testing--instead, it allegedly impacted only the quality control checks that accompany each test. According to the State, only 2 DUI cases were affected by the error. Alaska criminal defense attorneys aren't buying that theory and at least one is already moving forward with challenging his client's DUI conviction. The Alaska calibration error is just one more example of how tenuous and error-prone the process of measuring blood alcohol levels can be. People's liberty lies in the balance--and in many cases, faulty lab test results or improperly calibrated breath test equipment is the deciding factor. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Honesty. Sometimes it's the best policy.

Image by edwin.bautista via FlickrFrom "On the Record in Cook County" comes this helpful tip from a DUI defendant: Tastes not great, less filling? (From a video exhibit during trial for aggravated DUI.) Defendant - I had three Gumballhead beers and a shot of Jack Daniels. Officer - Three what? Defendant - Gumballhead beers. They're manufactured by Three Floyds Brewing Company. Have you ever had those? Officer - No. Defendant - Well they taste terrible. Even my girlfriend thinks so. ***** Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Latest Criminal Defense and DUI Links

Image by ...-Wink-... via Flickr

Here's a list of recent links from around the criminal defense legal blogosphere that are worth a second look:

• High Breathalyzer Results: Drinking...or Dieting?--DUI Blog
• The problem with (prescription) drugged driving--The Defense Rests
• Implied Consent: It Doesn't Matter if You Don't Understand--Pennsylvania DUI Blog
• Know Your Rights When it Comes to Police Stops--TalkLeft
• Are Bad Readings Coming Out Of Minnesota Intoxilyzers?--InjuryBoard Blog Network

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Operating a Stroller While Intoxicated?

Image via Wikipedia

These days, it seems you're at risk of getting stopped for DUI as long as you're operating anything with wheels--Russian tankers, Barbie cars, motorized lounging chairs, golf carts--and now a stroller. As My Fox Boston reports in this article, a Boston father was stopped for operating a stroller while intoxicated:

Police said 24-year-old Steven Melendez appeared to be intoxicated while pushing the stroller near his home. The officer said he showed the common signs of being drunk: glassy, bloodshot eyes; slurred speech, unsteady balance and there was a strong alcohol odor coming from him. He also wasn’t able to stand without leaning on the stroller, the officer said.

It appears that the arresting officers wisely chose not to charge Melendez with operating a motor vehicle while intoxicated, since it's difficult to envision any circumstance where a stroller could be considered a "motor vehicle". Instead, he was charged him with public drunkenness and endangering children--also somewhat questionable charges under the circumstances. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

"If you're drunk, take a cab" redux

Image via Wikipedia

We've all heard the familiar refrain, "If you're drunk, don't drive, take a taxi." Seems like good advice, no? Well, maybe not. According to this article from The Australian, an inebriated Australian bloke too that advice a bit too literally:

The Cairns Post said the 21-year-old man allegedly stole the taxi from the central business district of Cooktown, North Queensland about 6pm (local time) on Friday.

Police allegedly found the driver, who was unlicensed, at home where he recorded a blood alcohol level of .209 per cent - four times the legal limit.

Yep, he followed the sage advice and took the taxi--can't blame him, right? The moral of this story seems to be that the next time you offer advice to one of your drunken friends, make sure to enunciate, speak slowly and use words that are free of misinterpretation, lest you end up bearing some responsibility for unknowingly encouraging your friend to go on a drunken crime spree. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Access to Computer Data is Imperative when Defending DUI Cases

Image via Wikipedia

A recent New York Law Journal article discussed the important issue of defense access to computer data in "Database Access and the Defense." In it, the author, Ken Strutin asserts that evidence obtained from computer profiling and databases should be available to the defense and requires extensive judicial scrutiny before it reaches a jury. In support of his argument, he argues that a lot of computer-based data is less reliable than it seems, often including coding errors, and yet jurors are typically more likely to assume that this "scientific" data is fool proof. Examples of computer and scientific data that have been called into question include: 1) the source code for breathalyzers 2) poorly calibrated breathalyzer equipment 3) fingerprint databases, such as the Automated Fingerprint Identification System 4) DNA databases and 5) Vehicle Identification Number (VIN) databases. The importance of access to these databases during pre-trial discovery is imperative in order for criminal defense attorneys to mount a strong defense on behalf of their clients. The reason for this is simple: errors have been found, sometimes long after the accused has been imprisoned. Or, as aptly explained in the article:

"Certainty" is the bell that cannot be unrung, which is why in the light of re-evaluated forensic matching techniques, expert conclusions claiming "scientific certainty" are being carefully scrutinized.[FOOTNOTE 10]

Evidence drawn from computer profiling and database analyses deserves a long, hard look before reaching a jury. Legislatures and courts ought to uniformly recognize the essential right of the accused to contest computer-based identification or to access these resources to prepare a defense.

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