This is the second installment in a three-part DAD discussion of government records admissibility and/or confrontation clause issues. The case of State of Ohio v. Lee, 191 Ohio App.3d 219, 945 N.E.2d 595, 2010 -Ohio- 6276, was provided to DAD by NCDD member Jeff Meadows. Here, the defendant appealed his conviction based in part on the alleged erroneous admission of defendant's Bureau of Motor Vehicles (BMV) record (transcript) which was used to prove five prior OVI convictions. The appeals court agreed, and held that the records were not sufficiently 'certified' to allow them to be introduced under particular business records or public records exceptions. Since they were not so 'certified', the court held that their admission without live testimony to otherwise authenticate the documents violated the confrontation clause.
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:
"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."
In holding that the record was inadmissible, the court stated:
"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."
As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:
“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *
“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *
“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *
“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”
The appeals court explained why the document did not qualify as a self-authenticating document as follows:
"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."
Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.
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Tuesday, June 21, 2011
Monday, June 20, 2011
Illinois DUI Laws and Penalties - 2011 - Avvo.com
Illinois DUI Laws and Penalties - 2011 - Avvo.com
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Donald Ramsell Lawyer in Wheaton, Criminal Defense: DUI/DWI Attorney IL : Super Lawyers
Donald Ramsell Lawyer in Wheaton, Criminal Defense: DUI/DWI Attorney IL : Super Lawyers
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"The Change of Heart of Don Nichols" from IMinnesota Super Lawyers/I Wins SPJ's Page One Award : The Super Lawyers Blog
"The Change of Heart of Don Nichols" from IMinnesota Super Lawyers/I Wins SPJ's Page One Award : The Super Lawyers Blog
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OUI Appeal - Mass. Court Bars Probation Records Under Confrontation Clause
There appears to be a plethora of decisions recently involving the use and admission of certain records of prior convictions maintained by state agencies. Over the next 3 days, DAD will feature these decisions. Today's decision was provided by NCDD member Greg Oberhauser. In Commonwealth v. Ellis 10-P-419, the defendant was convicted of his fourth OUI offense.
The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.
On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:
With regard to exhibit A-2, the probation record, the court held:
With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:
In affirming the conviction, the trial court concluded that:
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The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.
On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:
"Certified court records of conviction are admissible under a hearsay exception for business records. Moreover, "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial" (citing to Melendez-Diaz, 129 S.Ct. at 2539-2540)
With regard to exhibit A-2, the probation record, the court held:
"[T]here was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832."
With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:
"The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles. * * * Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76")."
In affirming the conviction, the trial court concluded that:
"Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1."
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Saturday, June 18, 2011
DUII Appeal - Oregon Allows Retrograde Extrapolation of Blood Alcohol to Prove Per Se
This case comes to DAD thanks to the watchful eyes of NCDD member Bruce Tarbox. In State of Oregon v. Eumana-Moranchel, the defendant filed a motion to exclude certain blood alcohol evidence, which was granted. The State then appealed. The defendant had blown 0.06 on the breath test. Shane Bessett, an expert in the field of alcohol absorption and dissipation, testified about the rate at which the human body absorbs and dissipates alcohol and the factors that influence absorption and dissipation. As part of that testimony, he explained Widmark's formula, a generally accepted method for calculating the rate of alcohol absorption and dissipation, and back extrapolation of BAC, a method to provide a range for a person's BAC prior to the time of the test. According to Bessett, Widmark's formula, the subject of many peer-reviewed studies and scholarly works, is used to determine the number of drinks consumed to reach a given BAC, and back extrapolation is used with Widmark's formula in instances of "any type of delay of time between time of test and time of driving." Back extrapolation of BAC relies on knowledge of a person's BAC at the time of a chemical test of the person's breath or blood.
The trial court entered an order excluding
"(1) Any testimony by state's expert witness referring to BAC content if that testimony would permit the jury to convict defendant based on his BAC.
"(2) Any testimony by state's expert witness that [defendant's] BAC at the time of the alleged stop was at least .08 percent."
On appeal, the appellate court reversed. First, they found that the expert could properly apply the principles of retrograde extrapolation, as it was accepted in the scientific community. Additionally, the court rejected the defendant's argument that a per se violation (or a presumptive inference) could only be proven by a direct alcohol measurement. They argued that previous cases involvogin HGN and cases without blood or breath tests specifically held that per se violations could only be proven by chemical analysis. The court distinguished those cases and stated:
"Here, by contrast, a chemical analysis of defendant's breath was performed and provided the basis for Bessett's opinion. Bessett's testimony simply would have provided a range for defendant's BAC at 3:08 a.m. when defendant was stopped, based on the result of that chemical analysis, which was concluded at 4:42 a.m. Unlike the HGN test in O'Key or the observations of physical indicia of impairment in Ross and Johnson, Bessett's testimony was derived, using scientific principles, from a chemical analysis of defendant's breath. That testimony was admissible."
Editor's note: Interestingly, the opinion does not reflect what factors, other than a single-point breath test, supported an ability to perform the extrapolation of the BAC to any point in time. As most practitioners would agree, a single-point alcohol test, without evidence as to the time of consumption (or other factors such as amount and type of alcohol, weight of the individual, food consumption, etc.) is usually insufficinet to arrive at an opinion based upon a reasonable degree of certainty, which is the necessary strength an opinion must have to be admissible.
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The trial court entered an order excluding
"(1) Any testimony by state's expert witness referring to BAC content if that testimony would permit the jury to convict defendant based on his BAC.
"(2) Any testimony by state's expert witness that [defendant's] BAC at the time of the alleged stop was at least .08 percent."
On appeal, the appellate court reversed. First, they found that the expert could properly apply the principles of retrograde extrapolation, as it was accepted in the scientific community. Additionally, the court rejected the defendant's argument that a per se violation (or a presumptive inference) could only be proven by a direct alcohol measurement. They argued that previous cases involvogin HGN and cases without blood or breath tests specifically held that per se violations could only be proven by chemical analysis. The court distinguished those cases and stated:
"Here, by contrast, a chemical analysis of defendant's breath was performed and provided the basis for Bessett's opinion. Bessett's testimony simply would have provided a range for defendant's BAC at 3:08 a.m. when defendant was stopped, based on the result of that chemical analysis, which was concluded at 4:42 a.m. Unlike the HGN test in O'Key or the observations of physical indicia of impairment in Ross and Johnson, Bessett's testimony was derived, using scientific principles, from a chemical analysis of defendant's breath. That testimony was admissible."
Editor's note: Interestingly, the opinion does not reflect what factors, other than a single-point breath test, supported an ability to perform the extrapolation of the BAC to any point in time. As most practitioners would agree, a single-point alcohol test, without evidence as to the time of consumption (or other factors such as amount and type of alcohol, weight of the individual, food consumption, etc.) is usually insufficinet to arrive at an opinion based upon a reasonable degree of certainty, which is the necessary strength an opinion must have to be admissible.
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Friday, June 17, 2011
DWI Appeal - NJ Court Bars Suspension as Untimely
In Galeano v. new Jersey, Not Reported in A.3d, 2011 WL 2301104 (N.J.Super.A.D.), the New Jersey licensed defendant was arrested and convicted of DUI in Fliorida in 2003. The Florida court entered a supplemental order dated July 2, 2004, which stated that his probation had been successfully terminated. In July 2010, the New Jersey Motor Vehicle Commission received a report of conviction from Florida pursuant to the Interstate Driver License Compact. The Compact provides, among other things, that “[t]he licensing authority of a party State shall report each conviction of a person from another party State occurring within its jurisdiction to the licensing authority of the home State of the licensee.” The Commission issued a notice dated July 19, 2010, informing Galeano that his driver's license would be suspended for 210 days, beginning August 13, 2010, as a result of an alcohol-related violation that occurred in Florida on August 19, 2003.
On appeal, the Court reversed the suspension, finding that it was untimely:
Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.
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On appeal, the Court reversed the suspension, finding that it was untimely:
The Compact does not specify the time in which a party State must report a conviction to the home State of a licensed driver. However, when a contract does not specify the time in which action must be taken, “the law infers that the contract will be performed within a reasonable time.” In re Estate of Yates, 368 N.J.Super. 226, 236 (App.Div.2004). “What constitutes a ‘reasonable time’ is usually an implication of fact, and not of law, derivable from the language used by the parties considered in the context of the subject matter and the attendant circumstances, in aid of the apparent intention.” Ibid. (quoting Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 28 (1958)).
Reporting of a conviction of the motor vehicle laws to a licensee's home state within a reasonable time is necessary in order to achieve the purposes set out in the Compact, one of which is to “[p]romote compliance” with laws governing the operation of motor vehicles. N.J.S.A. 39:5D–1(b)(1). A driver's conviction of a motor vehicle offense indicates that the driver may pose some danger to other drivers or the public generally. N.J.S.A. 39:5D–1(a)(2). Therefore, the Compact envisions that such a conviction would be reported to the driver's home State within a reasonable time so that the home State may impose its penalties as a result of that conviction within a reasonable time thereafter.
We are convinced that the Compact does not authorize New Jersey to suspend Galeano's license based on his 2003 Florida DUI conviction because Florida did not report the conviction within a reasonable time. We recognize that the delay here is not attributable to the Commission. Nevertheless, the Commission suspended Galeano's license pursuant to the Compact, and its authority to do so is dependent upon Florida's reporting of the out-of-state conviction within a reasonable time, which did not occur here.
Moreover, the suspension of Galeano's license under these circumstances violates his right to fundamental fairness and due process. License suspension proceedings “affect drivers in a serious way” because they “often threaten [ ]” a driver's ability “to earn a livelihood[.]” In re Arndt, 67 N.J. 432, 436 (1975). Consequently, such proceedings “must meet those incidents of fairness” that underlie the constitutional right to due process. Ibid.
Editor's Note: Many states, in an effort to obtain outstanding fines and monies uncollected on drunk driving cases and bond forfeitures, are uploading DUI/DWI convictions on cases going back to the 1970's (Illinois is one example)The doctrine of laches is sometimes available to fight against these late notices. However, the above case would not be a good laches case, since New Jersey itself acted promptly. If anything the laches would only apply to the reporting party, and such litigation is difficult and many states have statutorily immunized themselves from laches defenses.
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DUI case against ex-dentist focuses on blood-alcohol evidence
DUI case against ex-dentist focuses on blood-alcohol evidence
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Thursday, June 16, 2011
DWI Appeal - Mass. Court Rules On Confrontation and Hospital Alcohol Testing
This case comes to DAD thanks to Tom Workman. In Commonwealth v. --- N.E.2d ----, Mass.App.Ct. , 2011 WL 2279076 (Mass.App.Ct.) the court decided issues relating to the confrontation clause and the use of hospital records to prove up a blood alcohol test taken for medical purposes, and also the admissibility of a 911 call from an anonymous source under the confrontation clause.
The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.
At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.
In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:
Discussing the law in this area, the court stated:
The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”
As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:
Holding that there was no confrontation clause violation, the court held that:
With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:
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The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.
At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.
In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:
“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... so far as such records relate to the treatment and medical history of such cases ... but nothing therein contained shall be admissible as evidence which has reference to the question of liability ”
The trial court first found that the records were admissible under the statute, and did not constitute "illegal references to liability.
Discussing the law in this area, the court stated:
"Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden “reference to the question of liability.” See Commonwealth v. Dargon, 457 Mass. 387, 394–395, 930 N.E.2d 707 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260–262 (2011). By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between “a conclusory fact central to the jury's inquiry” and “physical observations from which inculpatory inferences flow.” Id. at 395, 930 N.E.2d 707, quoting from Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 202, 509 N.E.2d 4 (1987).
The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”
As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:
"The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez–Diaz v. Massachusetts, supra at 2538–2539, the United States Supreme Court made an explicit exception for “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence.” Id. at 2538. The Court acknowledged that this type of affidavit is “prepared for use at trial,” but held that the confrontation clause does not apply because such an affidavit merely “certif[ies] to the correctness of a copy of a record” and does not “furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect.” Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409, 75 So. 95 (1917). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904, 923 N.E.2d 1062 (2010) (rejecting the defendant's argument that he suffered a deprivation of his confrontation rights because he did not have the opportunity to cross-examine the creator of an affidavit certifying records from the Registry of Motor Vehicles).
Holding that there was no confrontation clause violation, the court held that:
"It is clear that the certification form in the present case belongs within this categorical exception. The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident."
With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:
"Did the introduction of reference to statements from unknown 911 telephone callers deprive the defendant of his right to confrontation under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights? FN8 Those provisions protect a defendant against the admission of out-of-court testimonial statements. Out-of-court statements “primarily aimed at enabling ‘police assistance to meet an ongoing emergency’ ” are not testimonial. Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), quoting from Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In our circumstances, the 911 telephone callers were alerting the police to an ongoing threat posed by a conspicuously dangerous driver. They were urgent, and not testimonial, communications. See State v. Torelli, 103 Conn.App. 646, 658–662, 931 A.2d 337 (2007) (911 telephone calls reporting erratic driving are not testimonial, citing Davis v. Washington, supra at 822). No constitutional error occurred."Since the court found that the admission of the evidence was lawful (or in some respects not discussed herein was 'harmless'), the court also denied the ineffective assistance claim and the conviction was affirmed.
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Wednesday, June 15, 2011
OWI Appeal - Out of State Reckless Counts as a Prior, Says Wisconsin
In State of Wisconsin v. Malsbury, Slip Copy, 2011 WL 2201190 (Wis.App.) the defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving. As stated by the Wisconsin court:
"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:
Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."
In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:
"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).
Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:
"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).
"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."
Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."
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"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:
Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."
In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:
"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).
Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:
"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).
"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."
Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."
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Tuesday, June 14, 2011
DWI Appeal - Minnesota Refusal Reversed Due to Erroneous Instruction on Probable Cause
In State of Minnesota v. Koppi, --- N.W.2d ----, 2011 WL 2200762 (Minn.) the Supreme Court of Minnesota reversed a DWI Refusal, holding that the jury was improperly instructed on probable cause, since the instruction was based on the arresting officer's subjective beliefs rather than a an objective person's reasonable belief. The district court instructed the jury that “[p]robable cause means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.”
The high court found that the instruction contained three flaws:
Continuing, the court stated:
The jury instruction was the approved instruction from 10A Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp.2009). The supreme court concluded:
The high court found that the instruction contained three flaws:
"First, it does not require the officer to recite actual observations and circumstances supporting a finding of probable cause. Second, it fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer. Third, the instruction erroneously requires that an officer believe a driver “was more likely than not” driving while impaired, a standard that is at odds with case law on probable cause requiring only an “honest and strong suspicion” of criminal activity."
The first flaw is that the jury instruction fails to require an officer to articulate the specific observations and circumstances that support a finding of probable cause. Under the plain language of the jury instruction, the probable cause element of test refusal is satisfied if the officer can state the reason for his or her belief that the suspect was driving while impaired. If an officer were to testify that he or she had a gut feeling that the defendant was driving while impaired, the jury instruction would arguably be satisfied because the officer was able to “explain the reason” why the officer believed probable cause existed. Cf. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (“Mere suspicion is insufficient to establish probable cause.”). This aspect of the instruction is erroneous because the law requires the fact-finder to evaluate probable cause based on the totality of the facts and circumstances; it is not sufficient that the officer can simply “explain the reason” why he or she believed there was probable cause to request a chemical test from a suspect.
The second flaw is that CRIMJIG 29.28 does not require the jury to determine whether a reasonable police officer would find probable cause that Koppi was driving while impaired. The instruction permitted the jury to take Officer Hunter at his word that he believed Koppi was driving while impaired. As stated above, however, what matters is whether “there was objective probable cause, not whether the officers subjectively felt that they had probable cause.” Speak, 339 N.W.2d at 745. A properly instructed jury must consider whether the totality of the facts and circumstances would lead a reasonable officer to entertain an honest and strong suspicion that Koppi was “driving, operating, or in physical control of a motor vehicle” while impaired. See Minn.Stat. § 169A.51, subd. 1(b).
The third flaw is that we have rejected the standard of probable cause used in the jury instruction—that it is more likely than not that the suspect has committed a crime. See Harris, 589 N.W.2d at 791. Rather, probable cause requires that, under the totality of the circumstances, “a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn.2000) (citation omitted) (internal quotation marks omitted). The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. See id.; see also Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”). The “more likely than not” standard was an incorrect statement of the law because probable cause “is incapable of precise definition or quantification into percentages [as] it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). The district court therefore erred by giving the jury an erroneous standard by which to evaluate the totality of the circumstances surrounding Koppi's arrest.
Continuing, the court stated:
“[T]he reasonableness of the officer's actions is an objective inquiry,” even if reasonableness is evaluated in light of an officer's training and experience. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (emphasis added) (citation omitted). The actual, subjective beliefs of the officer are not the focus in evaluating reasonableness. See State v. Speak, 339 N.W.2d 741, 745 (Minn.1983) (holding that relevant inquiry for a probable cause analysis is “whether there was objective probable cause, not whether the officers subjectively felt that they had probable cause”). Rather, the probable cause standard asks whether the totality of the facts and circumstances known would lead a reasonable officer “to entertain an honest and strong suspicion” that the suspect has committed a crime. State v. Harris, 589 N.W.2d 782, 791 (Minn.1999) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)). Answering that question is “an objective, not subjective, inquiry.”
The jury instruction was the approved instruction from 10A Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp.2009). The supreme court concluded:
"For the foregoing reasons, we hold that the district court abused its discretion in instructing the jury on probable cause in accordance with the language of CRIMJIG 29.28. Because we cannot say that the instructional error was harmless beyond a reasonable doubt, we reverse Koppi's conviction for test refusal and remand for further proceedings consistent with this opinion.Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
Monday, June 13, 2011
DWI Appeal - Texas Felony Murder for DWI Does Not Require Mental State
In Adams v. Texas, --- S.W.3d ----, 2011 WL 2242607 (Tex.App.-Waco) the defendant was convicted of felony murder. Adams was driving on a farm-to-market road when he crossed over the center stripe and struck another vehicle, which resulted in the death of the driver of that vehicle. His blood alcohol content was .33 grams of alcohol per 100 milliliters of blood, which is more than four times the legal limit of .08 grams. Adams stipulated that he had been convicted of driving while intoxicated twice previously.
On appeal, Adams claimed, inter alia, that the felony murder statute violated federal due process because of the lack of a mens rea requirement, that it was improper to convict him of murder based on the lack of a mens rea, that the indictment should have been dismissed because he committed the offense of intoxication manslaughter which cannot be the basis of a felony murder conviction, and that a death resulting from intoxication is not murder but rather intoxication manslaughter.
Rejecting the above, the Texas court stated as follows:
"Adams does not cite any Texas authority showing that the Texas felony murder statute violates the federal constitutional provision regarding due process. Further, the cases he cites fail to show that his conviction for felony murder is unconstitutional on due process grounds because the charged offense lacked an element of culpable criminal intent or mens rea. The Supreme Court “has never articulated a general constitutional doctrine of mens rea ” and we have found no authority that the Supreme Court has ever held a state criminal statute unconstitutional for lack of scienter. Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (“The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.”); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (“We do not go with Blackstone in saying that a ‘vicious will’ is necessary to constitute a crime ... for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”); Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 54 L.Ed. 930 (1910) (“[P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.”); Lomax v. Thaler, No. H–09–0705, 2010 U.S. Dist. LEXIS 87683, 2010 WL 3362203, at 6 *4–5 (S.D.Tex. Aug. 25, 2010) (addressing the same issue).
The absence of scienter does not render a statute invalid if there is some indication of legislative intent, express or implied, to dispense with mens rea as an element of a crime. United States v. Staples, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (citations omitted). In Lomax, the Court of Criminal Appeals noted that, in enacting the Texas felony murder statute, there was “clear legislative intent to plainly dispense with a culpable mental state.” Lomax, 233 S.W.3d at 305 ( citing Aguirre v. State, 22 S.W.3d 463, 472–76 (Tex.Crim.App.1999)). The Court of Criminal Appeals observed that “the plain language of § 19.02(b)(3) also does not exclude felony DWI as an underlying felony for a felony-murder prosecution[.]” Id. at 309. Felony DWI, which does not require proof of a culpable mental state, may serve as the underlying felony in a felony murder prosecution. Id. at 309. The Court has since reaffirmed the ruling that a felony DWI may serve as the underlying offense in a felony murder conviction. See Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App.2008). None of the authority provided by Adams holds that felony murder cannot be charged in this manner or that his conviction is invalid for lack of the requisite mens rea as it relates to this offense. We overrule issues one, two, three, and four."
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On appeal, Adams claimed, inter alia, that the felony murder statute violated federal due process because of the lack of a mens rea requirement, that it was improper to convict him of murder based on the lack of a mens rea, that the indictment should have been dismissed because he committed the offense of intoxication manslaughter which cannot be the basis of a felony murder conviction, and that a death resulting from intoxication is not murder but rather intoxication manslaughter.
Rejecting the above, the Texas court stated as follows:
"Adams does not cite any Texas authority showing that the Texas felony murder statute violates the federal constitutional provision regarding due process. Further, the cases he cites fail to show that his conviction for felony murder is unconstitutional on due process grounds because the charged offense lacked an element of culpable criminal intent or mens rea. The Supreme Court “has never articulated a general constitutional doctrine of mens rea ” and we have found no authority that the Supreme Court has ever held a state criminal statute unconstitutional for lack of scienter. Powell v. Texas, 392 U.S. 514, 535, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); see also Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (“The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.”); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (“We do not go with Blackstone in saying that a ‘vicious will’ is necessary to constitute a crime ... for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”); Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 54 L.Ed. 930 (1910) (“[P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.”); Lomax v. Thaler, No. H–09–0705, 2010 U.S. Dist. LEXIS 87683, 2010 WL 3362203, at 6 *4–5 (S.D.Tex. Aug. 25, 2010) (addressing the same issue).
The absence of scienter does not render a statute invalid if there is some indication of legislative intent, express or implied, to dispense with mens rea as an element of a crime. United States v. Staples, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (citations omitted). In Lomax, the Court of Criminal Appeals noted that, in enacting the Texas felony murder statute, there was “clear legislative intent to plainly dispense with a culpable mental state.” Lomax, 233 S.W.3d at 305 ( citing Aguirre v. State, 22 S.W.3d 463, 472–76 (Tex.Crim.App.1999)). The Court of Criminal Appeals observed that “the plain language of § 19.02(b)(3) also does not exclude felony DWI as an underlying felony for a felony-murder prosecution[.]” Id. at 309. Felony DWI, which does not require proof of a culpable mental state, may serve as the underlying felony in a felony murder prosecution. Id. at 309. The Court has since reaffirmed the ruling that a felony DWI may serve as the underlying offense in a felony murder conviction. See Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App.2008). None of the authority provided by Adams holds that felony murder cannot be charged in this manner or that his conviction is invalid for lack of the requisite mens rea as it relates to this offense. We overrule issues one, two, three, and four."
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DWI Appela - Does a Colorado DWAI Constitute a Prior for Felony Enhancement?
In State of Texas v. Christensen, Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas), the defendant appealed his felony conviction, claiming that a Colorado DWAI did not count as a 'prior' for enhancement purposes. In Colorado, there are 2 forms of drunk driving charges - DWAI and DUI.
Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).
DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).
DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."
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Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).
DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).
DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."
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DUI Appeal - Alaska Decides Corpus Delicti Issues And Grants New Trial
In Langevin v. Alaska, --- P.3d ----, 2011 WL 2177299 (Alaska App.) the defendant was found guilty of DUI. The appeal presented three questions concerning the corpus delicti rule—the doctrine that a criminal conviction can not rest solely on the defendant's confession:
The first question is an issue of law: whether, under Alaska law, the trial judge or the jury is the one who decides whether the government's evidence satisfies the corpus delicti rule.
The second question is case-specific: whether, given the evidence presented at Langevin's trial, the State satisfied the corpus delicti requirement.
The third question is again a question of law: when the State fails to satisfy the corpus delicti rule, but when the State's evidence, taken as a whole ( i.e., including the defendant's confession), is sufficient to survive a motion for a judgment of acquittal, is the defendant's remedy outright dismissal of the criminal charge, or is it a retrial?
As to the first question, the court discussed the two basic approaches to a corpus delicti rule: the implicit element approach and the “evidentiary foundation” approach to corpus delicti.
Under the "evidentiary foundation" approach, the corpus delicti rule is a rule that defines the level of supporting evidence that the government must present if the government wishes to introduce the defendant's out-of-court confession for the truth of the matters asserted. Under this approach,
"[The] decision [regarding corpus delicti is] made by the trial judge before the case is submitted to the jury. The judge [assesses] the sufficiency of the State's evidence to prove the corpus delicti, and this decision [is] one of law—similar to the judge's assessment of the sufficiency of any other evidentiary foundation under Alaska Evidence Rule 104(a)-(b). Assuming the judge [rules] that the corpus delicti had been established, then, at the end of trial, the jury [considers] all of the evidence (including the defendant's confession) and [decides] whether the State [has] established each element of the charged crime beyond a reasonable doubt.
Dodds, 997 P.2d at 540."
Under the “implicit element” approach, if the trial judge rules that corpus delicti is satisfied, the jury would hear the defendant's confession, only to later be asked to set the confession to one side and determine whether the government's remaining evidence is sufficient to establish the corpus delicti. As the appellate court stated:
"One might doubt whether jurors, having heard the defendant's confession to a heinous crime, could dispassionately discharge this duty."
The appellate court then decided that the trial judge should make the determination as to the corpus delicti rule:
"In sum, Alaska cases have historically employed the “evidentiary foundation” approach to corpus delicti, and there are good reasons to question the “implicit elements” approach. Accordingly, we now hold that Alaska law follows the “evidentiary foundation” approach to corpus delicti. Under the “evidentiary foundation” approach to corpus delicti, the decision as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, not the jury. Therefore, Langevin's trial judge correctly denied Langevin's request to have the jury decide this matter."
The appeals court then reviewed the facts to determine whether the trial court properly found that the corpus delicti had been proven. The facts and testimony were summarized as follows:
In the early morning hours of November 27, 2008, officers of the Fairbanks police went to an apartment building in response to a report of a domestic dispute. This report was made by Langevin's girlfriend, Shari Kelly. Based on what the police discovered when they arrived, Langevin was charged with driving under the influence. Here is the State's evidence, presented in the light most favorable to the jury's verdict:
When the police arrived, they found Langevin in the hallway outside his apartment. Langevin told the officers that he had been standing outside for over an hour—that Kelly had taken his keys and had locked him out of their residence. This statement was verified when the police entered the residence and interviewed Kelly; they found the keys in her possession.
Langevin was visibly intoxicated; in fact, he conceded to the officers that he was “three sheets to the wind”. However, Langevin also stated several times that he had not had anything to drink since he arrived home. Rather, Langevin said, he and Kelly had been drinking at the Manchu Bar earlier that night.
According to Langevin, he and Kelly stayed at the bar until closing time (which, under Fairbanks law, would have been 3:00 a.m.), and then he started driving them home. In his statements to the police, Langevin gave two accounts of how his driving ended. At one point in the interview, Langevin indicated that he drove all the way home, at which point he stopped and said, “I'm not driving no more, period. I'm throwing the keys away.” But at another point in the interview, Langevin said that Kelly grabbed the keys while he was driving ( i.e., while the keys were in the ignition) and turned the truck off.
*2 Langevin pointed out the truck that he had driven. However, the police did not check the truck to see if the engine was warm or to see if there was any other indication that the truck had been recently driven.
Langevin's statement that he had not been drinking since he came home was corroborated by the fact that the officers could not see any containers of alcoholic beverages in Langevin's vicinity.
At Langevin's trial, the State did not call Kelly as a witness, nor did the State present any other witnesses who had actually seen Langevin driving the truck, or who had seen Langevin and Kelly at the Manchu Bar earlier that morning.
The appellate court found that these facts failed to prove the corpus delicti of the offense:
"Apart from the inferences that might be drawn from Langevin's admissions to the police, there was no independent evidence to establish why Langevin and Kelly had quarreled, or when she had taken his keys. While the independent evidence was consistent with Langevin's claim that Kelly took his keys after he drove home under the influence, the independent evidence was just as consistent with the supposition that Kelly took the keys from Langevin as they were leaving the Manchu Bar, to prevent Langevin from assuming physical control of the vehicle while he was under the influence. Indeed, the independent evidence was also just as consistent with the supposition that Langevin and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and then Kelly quarreled with Langevin and threw him out of the apartment—but kept his keys so that he would not be able to drive."
The court then had to decide whether the appropriate remedy was an acquittal or a new trial. In finding that a new trial, rather than acquittal, was appropriate, the court wrote:
"[U]nder Alaska's “evidentiary foundation” approach to corpus delicti, the corroborating evidence is not an element of the State's proof; rather, it is the foundation that must be laid to make the defendant's confession admissible in evidence.
The defendant may raise a corpus delicti objection when the government first offers the confession in evidence, or the defendant may wait until the government concludes its case-in-chief. But either way, the objection is of the same nature. A corpus delicti objection is not the same as an assertion that the government's evidence is legally insufficient to support a verdict in the government's favor. Rather, a corpus delicti objection is an assertion that the government should not be allowed, or should not have been allowed, to introduce the defendant's confession as part of its case.
Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defendant's remedy is a new trial. As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 40–42; 109 S.Ct. 285, 290–92; 102 L.Ed.2d 265 (1988), and as this Court held in Houston–Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992), a defendant who successfully contends on appeal that the trial judge should have excluded a portion of the government's evidence can not then argue that the government's remaining evidence was insufficient to withstand a motion for judgement of acquittal. Rather, the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial—even the evidence that was wrongfully admitted. See LaFave, Israel, and King, Criminal Procedure, § 25.4(c), Vol. 6, pp. 651–52.
As we noted earlier, had the trial judge sustained Langevin's corpus delicti objection, the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. And we can not know what additional evidence the State might have presented to corroborate Langevin's confession if the trial judge had ruled that the State's existing evidence was not sufficient for this purpose. See Houston–Hult, 843 P.2d at 1265 n. 2"
Therefore, the judgment was vacated and the cause was remanded for a new trial.
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The first question is an issue of law: whether, under Alaska law, the trial judge or the jury is the one who decides whether the government's evidence satisfies the corpus delicti rule.
The second question is case-specific: whether, given the evidence presented at Langevin's trial, the State satisfied the corpus delicti requirement.
The third question is again a question of law: when the State fails to satisfy the corpus delicti rule, but when the State's evidence, taken as a whole ( i.e., including the defendant's confession), is sufficient to survive a motion for a judgment of acquittal, is the defendant's remedy outright dismissal of the criminal charge, or is it a retrial?
As to the first question, the court discussed the two basic approaches to a corpus delicti rule: the implicit element approach and the “evidentiary foundation” approach to corpus delicti.
Under the "evidentiary foundation" approach, the corpus delicti rule is a rule that defines the level of supporting evidence that the government must present if the government wishes to introduce the defendant's out-of-court confession for the truth of the matters asserted. Under this approach,
"[The] decision [regarding corpus delicti is] made by the trial judge before the case is submitted to the jury. The judge [assesses] the sufficiency of the State's evidence to prove the corpus delicti, and this decision [is] one of law—similar to the judge's assessment of the sufficiency of any other evidentiary foundation under Alaska Evidence Rule 104(a)-(b). Assuming the judge [rules] that the corpus delicti had been established, then, at the end of trial, the jury [considers] all of the evidence (including the defendant's confession) and [decides] whether the State [has] established each element of the charged crime beyond a reasonable doubt.
Dodds, 997 P.2d at 540."
Under the “implicit element” approach, if the trial judge rules that corpus delicti is satisfied, the jury would hear the defendant's confession, only to later be asked to set the confession to one side and determine whether the government's remaining evidence is sufficient to establish the corpus delicti. As the appellate court stated:
"One might doubt whether jurors, having heard the defendant's confession to a heinous crime, could dispassionately discharge this duty."
The appellate court then decided that the trial judge should make the determination as to the corpus delicti rule:
"In sum, Alaska cases have historically employed the “evidentiary foundation” approach to corpus delicti, and there are good reasons to question the “implicit elements” approach. Accordingly, we now hold that Alaska law follows the “evidentiary foundation” approach to corpus delicti. Under the “evidentiary foundation” approach to corpus delicti, the decision as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, not the jury. Therefore, Langevin's trial judge correctly denied Langevin's request to have the jury decide this matter."
The appeals court then reviewed the facts to determine whether the trial court properly found that the corpus delicti had been proven. The facts and testimony were summarized as follows:
In the early morning hours of November 27, 2008, officers of the Fairbanks police went to an apartment building in response to a report of a domestic dispute. This report was made by Langevin's girlfriend, Shari Kelly. Based on what the police discovered when they arrived, Langevin was charged with driving under the influence. Here is the State's evidence, presented in the light most favorable to the jury's verdict:
When the police arrived, they found Langevin in the hallway outside his apartment. Langevin told the officers that he had been standing outside for over an hour—that Kelly had taken his keys and had locked him out of their residence. This statement was verified when the police entered the residence and interviewed Kelly; they found the keys in her possession.
Langevin was visibly intoxicated; in fact, he conceded to the officers that he was “three sheets to the wind”. However, Langevin also stated several times that he had not had anything to drink since he arrived home. Rather, Langevin said, he and Kelly had been drinking at the Manchu Bar earlier that night.
According to Langevin, he and Kelly stayed at the bar until closing time (which, under Fairbanks law, would have been 3:00 a.m.), and then he started driving them home. In his statements to the police, Langevin gave two accounts of how his driving ended. At one point in the interview, Langevin indicated that he drove all the way home, at which point he stopped and said, “I'm not driving no more, period. I'm throwing the keys away.” But at another point in the interview, Langevin said that Kelly grabbed the keys while he was driving ( i.e., while the keys were in the ignition) and turned the truck off.
*2 Langevin pointed out the truck that he had driven. However, the police did not check the truck to see if the engine was warm or to see if there was any other indication that the truck had been recently driven.
Langevin's statement that he had not been drinking since he came home was corroborated by the fact that the officers could not see any containers of alcoholic beverages in Langevin's vicinity.
At Langevin's trial, the State did not call Kelly as a witness, nor did the State present any other witnesses who had actually seen Langevin driving the truck, or who had seen Langevin and Kelly at the Manchu Bar earlier that morning.
The appellate court found that these facts failed to prove the corpus delicti of the offense:
"Apart from the inferences that might be drawn from Langevin's admissions to the police, there was no independent evidence to establish why Langevin and Kelly had quarreled, or when she had taken his keys. While the independent evidence was consistent with Langevin's claim that Kelly took his keys after he drove home under the influence, the independent evidence was just as consistent with the supposition that Kelly took the keys from Langevin as they were leaving the Manchu Bar, to prevent Langevin from assuming physical control of the vehicle while he was under the influence. Indeed, the independent evidence was also just as consistent with the supposition that Langevin and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and then Kelly quarreled with Langevin and threw him out of the apartment—but kept his keys so that he would not be able to drive."
The court then had to decide whether the appropriate remedy was an acquittal or a new trial. In finding that a new trial, rather than acquittal, was appropriate, the court wrote:
"[U]nder Alaska's “evidentiary foundation” approach to corpus delicti, the corroborating evidence is not an element of the State's proof; rather, it is the foundation that must be laid to make the defendant's confession admissible in evidence.
The defendant may raise a corpus delicti objection when the government first offers the confession in evidence, or the defendant may wait until the government concludes its case-in-chief. But either way, the objection is of the same nature. A corpus delicti objection is not the same as an assertion that the government's evidence is legally insufficient to support a verdict in the government's favor. Rather, a corpus delicti objection is an assertion that the government should not be allowed, or should not have been allowed, to introduce the defendant's confession as part of its case.
Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defendant's remedy is a new trial. As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 40–42; 109 S.Ct. 285, 290–92; 102 L.Ed.2d 265 (1988), and as this Court held in Houston–Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992), a defendant who successfully contends on appeal that the trial judge should have excluded a portion of the government's evidence can not then argue that the government's remaining evidence was insufficient to withstand a motion for judgement of acquittal. Rather, the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial—even the evidence that was wrongfully admitted. See LaFave, Israel, and King, Criminal Procedure, § 25.4(c), Vol. 6, pp. 651–52.
As we noted earlier, had the trial judge sustained Langevin's corpus delicti objection, the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. And we can not know what additional evidence the State might have presented to corroborate Langevin's confession if the trial judge had ruled that the State's existing evidence was not sufficient for this purpose. See Houston–Hult, 843 P.2d at 1265 n. 2"
Therefore, the judgment was vacated and the cause was remanded for a new trial.
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Friday, June 10, 2011
DUI Arrest - Florida Allows Challenges To Unlawful Arrest Suspensions
In Florida Department of Highway Safety v. Hernandez, --- So.3d ----, 2011 WL 2224791 (Fla.), the Supreme Court of Florida was asked to decide the following two questions:
Can the DHSMV suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?
Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?
The court answered these questions as follows:
"We agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305–08 (Fla. 5th DCA 2008), review denied, 984 So.2d 519 (Fla.2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. We further agree that the driver whose license is suspended should be able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer, who is reviewing the legality of the suspension. We thus answer the first certified question in the negative and the second certified question in the affirmative, approve Hernandez, approve of the reasoning in Pelham, and quash McLaughlin."
The Florida Court reasoned as follows:
"Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006),FN4 commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's “implied consent law”).FN5 The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(1)(a) 1.a., Fla. Stat. (emphasis added). The statute further provides that the test “ must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So.2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”
The DSMHV had argued that, under an additional statute delineating the issues that could be raised at the DMV hearing, the legislature had specifically deleted the issue of the legality of the arrest (by amendment). "In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006–290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process." The court held as follows:
"Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest."
Finally, the Supreme Court held that the defendant must have the right to challenge the legality of the arrest, and that the hearing officer has the obligation to review the legality of the arrest, stating:
"Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable—and unconstitutional—result."
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Can the DHSMV suspend a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?
Is the issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver's license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?
The court answered these questions as follows:
"We agree with the First District in Hernandez, 995 So.2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304, 305–08 (Fla. 5th DCA 2008), review denied, 984 So.2d 519 (Fla.2008), that a suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. We further agree that the driver whose license is suspended should be able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer, who is reviewing the legality of the suspension. We thus answer the first certified question in the negative and the second certified question in the affirmative, approve Hernandez, approve of the reasoning in Pelham, and quash McLaughlin."
The Florida Court reasoned as follows:
"Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver's license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006),FN4 commonly known as the implied consent law. See State v. Miles, 775 So.2d 950, 952 (Fla.2000) (recognizing section 316.1932, Florida Statutes, as part of Florida's “implied consent law”).FN5 The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(1)(a) 1.a., Fla. Stat. (emphasis added). The statute further provides that the test “ must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So.2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”
The DSMHV had argued that, under an additional statute delineating the issues that could be raised at the DMV hearing, the legislature had specifically deleted the issue of the legality of the arrest (by amendment). "In the prior version of the statute, the hearing officer's scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch.2006–290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process." The court held as follows:
"Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges, because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So.2d 709, 710 (Fla.1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest."
Finally, the Supreme Court held that the defendant must have the right to challenge the legality of the arrest, and that the hearing officer has the obligation to review the legality of the arrest, stating:
"Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable—and unconstitutional—result."
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Thursday, June 09, 2011
Wrongful Convictions
Wrongful Convictions
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Wednesday, June 08, 2011
DUI Appeal - Handcuffing Person Does Not Always Mean Arrest Says Minnesota
In Myhre v. Commissioner of Public Safety, --- N.W.2d ----, 2011 WL 2175838 (Minn.App.) the defendant appealed the revocation of his driving privileges, arguing that he was 'in custody' at the time he was interrogated and therefore his statements were obtained in violation of Miranda. On appeal, the facts revealed that the defendant was found inside the garage of a home by the owner, who did not know him. Apparently, the intoxicate man had stepped out of a neighbor's home to have a smoke and was confused upon re-entry. A small, diminutive female police officer, unsure about the facts upon arrival, handcuffed the individual for officer safety. he was then interrogated, where it was learned that he was a guest next door, had driven to the home after drinking, and had not driven after driving.
The appeals court found that the defendant was not "in custody" when he was handcuffed and interrogated. Rather than focusing on "whether a reasonable person, innocent of a crime, would believe they were no longer free to leave" as required by the SCOTUS decision in Mendenhall, the court focused instead on the officer's reasonableness:
Once the Minnesota Appeals court wrongfully applied the 4th amendment test of 'reasonableness' to the legal issue, rather than the 6th amendment test of 'custody', the result was inevitable and the refusal to suppress the defendant's non-Mirandized answers was affirmed.
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The appeals court found that the defendant was not "in custody" when he was handcuffed and interrogated. Rather than focusing on "whether a reasonable person, innocent of a crime, would believe they were no longer free to leave" as required by the SCOTUS decision in Mendenhall, the court focused instead on the officer's reasonableness:
"The district court found that Officer Carlson is “female and of smaller stature.” The district court also found the Officer Carlson was alone at the scene and that when she arrived the “parties were breathing heavily and Officer Carlson could tell that there had been an argument.” Based on these facts, we agree with the district court's determination that, under these circumstances, it was reasonable for Officer Carlson to handcuff appellant and remove him from the garage for officer safety reasons.
We also agree with the district court's determination that Officer Carlson's questions did not go beyond the scope of an initial investigation. After arriving at the scene, the officers quickly determined that appellant did not live at the residence and that he was not supposed to be there. Questions regarding where appellant was coming from and how he arrived at the residence were relevant to the initial investigation."
Once the Minnesota Appeals court wrongfully applied the 4th amendment test of 'reasonableness' to the legal issue, rather than the 6th amendment test of 'custody', the result was inevitable and the refusal to suppress the defendant's non-Mirandized answers was affirmed.
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Tuesday, June 07, 2011
DUI Appeal - Mississippi Court Allows Inspector Records Despite Lack of Confrontation
This case comes to DAD thanks to the watchful eyes of NCDD member Lance Mixon. In Matthies v. State of Mississippi, --- So.3d ----, 2011 WL 2120060 (Miss.App.), the defendant argued on appeal that his confrontation rights were violated when the person who 'calibrated' the machine did not testify at trial. The calibration certificates were filled out on September 1, 2008, and October 2, 2008, and certify that the Intoxilyzer 8000 machine administered to Matthies was in “working condition” and met “acceptable standards of accuracy.”
The Mississippi Appeals Court first reviewed cases from other jurisdictions involving similar issues:
The Mississippi court found the language in the Ramirez decision (cited above) most persuasive. "In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:
The Matthies court concluded:
Editor's Note: What bothers this editor the most from these decisions is the claim that 'all the inspector is doing is finding the machines accurate'. However, the machines themselves are designed to do the same thing that was found problematic in Melendez-Diaz: determine the identity of a particular substance and then subsequently weigh it. Whereas Melendez identified the substance in the bag as cocaine, in this case the machine identified the substance in the lungs as alcohol. An inspector who 'calibrates' a device is performing some of the same activities that are performed by a GC tech. Finally, the Intoxilyzer actually 'weighs' the amount of alcohol as well, which is a key component to the innocence or guilt of the driver. It seems to me that these courts are being disingenuous in their so-called distinctions between drug gc-ms cases and dui breath-test cases.
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The Mississippi Appeals Court first reviewed cases from other jurisdictions involving similar issues:
"Since the Melendez–Diaz Court expressly declined to answer the question before us, we look to other jurisdictions. Courts having occasion to consider intoxilyzer inspection, maintenance, or calibration records post- Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature. See United States v. Forstell, 656 F.Supp.2d 578, 580–82 (E.D.Va.2009); State v. Linder, 2010 WL 3760744, *2 (Ariz . Ct.App.2010); Jacobson v. State, 703 S.E.2d 376, 379 (Ga.Ct.App.2010); People v. Jacobs, 939 N.E.2d 64, 71–72 (Ill.App.Ct.2010); Ramirez v. State, 928 N.E.2d 214, 219–20 (Ind .Ct.App.2010); State v. Johnson, 233 P.3d 290, 299 (Kan.Ct.App.2010); State v. Bergin, 217 P.3d 1087, 1089 (Or.Ct.App.2009); Settlemire v. State, 323 S.W.3d 520, 521–22 (Tex.Ct.App.2010); Hamilton v. State, 2010 WL 4260608, * 3 (Alaska Ct.App.2010) (unreported decision). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial).
The Mississippi court found the language in the Ramirez decision (cited above) most persuasive. "In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:
"Melendez–Diaz does not hold that routine calibration records are always nontestimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. ... The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant." Ramirez, 928 N.E.2d at 219.
The Matthies court concluded:
"The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the Intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Matthies. Therefore, the calibration records in this case are different from the lab analysts' certificates at issue in Melendez–Diaz, which were prepared after the drug seizure to establish at the defendant's trial that the substance obtained from him was cocaine."
Editor's Note: What bothers this editor the most from these decisions is the claim that 'all the inspector is doing is finding the machines accurate'. However, the machines themselves are designed to do the same thing that was found problematic in Melendez-Diaz: determine the identity of a particular substance and then subsequently weigh it. Whereas Melendez identified the substance in the bag as cocaine, in this case the machine identified the substance in the lungs as alcohol. An inspector who 'calibrates' a device is performing some of the same activities that are performed by a GC tech. Finally, the Intoxilyzer actually 'weighs' the amount of alcohol as well, which is a key component to the innocence or guilt of the driver. It seems to me that these courts are being disingenuous in their so-called distinctions between drug gc-ms cases and dui breath-test cases.
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Monday, June 06, 2011
DUI Appeal - Lidar Speed Guns OK Says Oregon Court
In State of Oregon v. Branch, --- P.3d ----, 2011 WL 2138054 (Or.App.), a non-DUI case, the court was asked to determine the admissibility of LIDAR for the purpose of measuring distance. The defense argued that the trial court erred by failing to perform a Frye/Daubert styled hearing regarding its general admissibility. On appeal, the court first explained the fundamentals of Lidar, and whether Lidar was 'scientific evidence' :
"Lidar devices “shoot” a series of laser pulses at a target, generally one every five milliseconds. When a pulse hits the target, a portion of the light from the laser beam is reflected back to the device. Lidar devices calculate the distance between the target and the device by analyzing the average time that it takes the reflected light to return to the device from the target through an algorithm based on the speed of light, which is a known constant; that process of measurement is similar to the process by which radar devices measure distance and speed. Vladimir A. Kovalev & William E. Eichinger, Elastic Lidar: Theory, Practice, and Analysis Methods 53 (2004); Mark Fischetti, Working Knowledge: Radar Guns, Sci Am, Mar 2001, at 76, 77.
Lidar devices consist of three basic components: (1) a laser diode, which serves as the source of the laser pulses; (2) a photoreceiver, which receives the reflected light and converts it into an electrical signal; and (3) a computer system, which tracks the time that elapses between the laser pulses leaving the device and the generation of the electrical signal and calculates the distance to the target. Kovalev & Eichinger, Elastic Lidar at 53. The devices have numerous applications, ranging from the everyday, e.g., measuring distances and angles on construction sites and in surveying projects, Jeff Hecht & Dick Teresi, Laser: Light of a Million Uses 154–56 (1988), to the more far reaching, e.g., measuring the distance to and orbit of the moon, J.O. Dickey et al., Lunar Laser Ranging: A Continuing Legacy of the Apollo Program, Sci, July 22, 1994, at 482, 482.
Here, as noted, the distance evidence proffered by the state is based on the premise that measurements of distance can be derived through the lidar device's use of a certain scientific principle, viz., the speed of light. Data generated by the computer in the device are then analyzed through the use of a mathematical algorithm based on that principle. As such, that distance evidence draws its convincing force from a scientific principle and would be more persuasive to the trier of fact due to its scientific nature. Accordingly, we conclude that it is scientific evidence."
The court then described its role in regards to admitting scientific evidence:
“[I]n the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding. Once a trial court has decided that proffered expert scientific testimony is scientifically valid and has admitted such evidence for the particular purpose to which it is directed, and that decision is affirmed by this court in a published opinion, it will become precedent controlling subsequent trials.”
321 Or at 293 (footnote omitted; emphasis added). Therefore, before applying the multifactor test to the evidence in question, a court must decide whether the scientific evidence is of a type for which the test outlined in Brown and O'Key does not apply: viz., evidence whose admissibility an Oregon appellate court has approved; evidence whose scientific validity is clear; evidence whose scientific validity may properly be established through judicial notice; or evidence whose prima facie scientific validity has been established legislatively. See Laird C. Kirkpatrick, Oregon Evidence § 702.04[1][b], at 606 (5th ed 2007).
Finally, it held that Lidar was a clear case for admissibility without the need for a Frye-type hearing:
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"Lidar devices “shoot” a series of laser pulses at a target, generally one every five milliseconds. When a pulse hits the target, a portion of the light from the laser beam is reflected back to the device. Lidar devices calculate the distance between the target and the device by analyzing the average time that it takes the reflected light to return to the device from the target through an algorithm based on the speed of light, which is a known constant; that process of measurement is similar to the process by which radar devices measure distance and speed. Vladimir A. Kovalev & William E. Eichinger, Elastic Lidar: Theory, Practice, and Analysis Methods 53 (2004); Mark Fischetti, Working Knowledge: Radar Guns, Sci Am, Mar 2001, at 76, 77.
Lidar devices consist of three basic components: (1) a laser diode, which serves as the source of the laser pulses; (2) a photoreceiver, which receives the reflected light and converts it into an electrical signal; and (3) a computer system, which tracks the time that elapses between the laser pulses leaving the device and the generation of the electrical signal and calculates the distance to the target. Kovalev & Eichinger, Elastic Lidar at 53. The devices have numerous applications, ranging from the everyday, e.g., measuring distances and angles on construction sites and in surveying projects, Jeff Hecht & Dick Teresi, Laser: Light of a Million Uses 154–56 (1988), to the more far reaching, e.g., measuring the distance to and orbit of the moon, J.O. Dickey et al., Lunar Laser Ranging: A Continuing Legacy of the Apollo Program, Sci, July 22, 1994, at 482, 482.
Here, as noted, the distance evidence proffered by the state is based on the premise that measurements of distance can be derived through the lidar device's use of a certain scientific principle, viz., the speed of light. Data generated by the computer in the device are then analyzed through the use of a mathematical algorithm based on that principle. As such, that distance evidence draws its convincing force from a scientific principle and would be more persuasive to the trier of fact due to its scientific nature. Accordingly, we conclude that it is scientific evidence."
The court then described its role in regards to admitting scientific evidence:
“[I]n the absence of a clear case, a case for judicial notice, or a case of prima facie legislative recognition, trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid. This is especially true in cases where the proffered expert scientific testimony is innovative, nontraditional, unconventional, controversial, or close to the frontier of understanding. Once a trial court has decided that proffered expert scientific testimony is scientifically valid and has admitted such evidence for the particular purpose to which it is directed, and that decision is affirmed by this court in a published opinion, it will become precedent controlling subsequent trials.”
321 Or at 293 (footnote omitted; emphasis added). Therefore, before applying the multifactor test to the evidence in question, a court must decide whether the scientific evidence is of a type for which the test outlined in Brown and O'Key does not apply: viz., evidence whose admissibility an Oregon appellate court has approved; evidence whose scientific validity is clear; evidence whose scientific validity may properly be established through judicial notice; or evidence whose prima facie scientific validity has been established legislatively. See Laird C. Kirkpatrick, Oregon Evidence § 702.04[1][b], at 606 (5th ed 2007).
Finally, it held that Lidar was a clear case for admissibility without the need for a Frye-type hearing:
"As noted above, the basic scientific principle underlying the conclusions generated by the algorithm used by a lidar device—the distance measurements—is the speed of light, one of the “fundamental constants of physics and chemistry” in our universe. Peter J. Mohr et al., CODATA Recommended Values of the Fundamental Physical Constants: 2006, at 95 tbl L (2007). The universal acceptance of using lidar devices to measure distances is shown by its widespread, everyday use in multiple contexts, including its pervasive use as a replacement for tape measures in construction projects and as a measuring device for surveying purposes. Further, as Balzer testified at trial, law enforcement departments nationwide, including the Portland Police Department for the past 13 years, routinely use lidar devices for forensic purposes, e.g., to measure distances and the speed of automobiles. Put succinctly, the employment of a lidar device to measure distance is far from a novel means of obtaining those measurements. Further, and importantly, although defendant argues that the state failed to present evidence at trial to establish that the scientific principles behind the development and use of lidar devices to measure distance are universally accepted in the scientific community, he does not substantively challenge on appeal those principles or the scientific validity of using lidar devices to measure distances."Therefore, the appeals court found that there was no error in the admission of the lidar device's measurement of distance in the case sub judice.
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DUI Appeal - Nevada Rejects Paramedic Privilege
In Rogers v. State of Nevada, --- P.3d ----, 2011 WL 2162759 (Nev.), 127 Nev. Adv. Op. 25, the defendant was convicted by a jury of driving under the influence of a controlled substance (marijuana) causing substantial bodily harm, for which he was sentenced to serve 24 to 60 months in prison. Part of the evidence the jury heard came from a paramedic who took Rogers by ambulance to the hospital. At the hospital Rogers consented to a blood test, which came back positive for marijuana. Earlier, Rogers had asked Friedlander not to tell the police about his marijuana use. Torn between his conflicting duties to Rogers and to the public, Friedlander sought advice from another EMT, who advised Friedlander to pass the information along to the Highway Patrol officer investigating the accident, which Friedlander did. The paramedic testified that Rogers confided that he had smoked marijuana before the accident. On appeal Rogers argued that his statement to the paramedic was inadmissible because it was protected by Nevada's doctor-patient privilege.
Rogers bases his EMT- or paramedic-patient privilege claim on the doctor-patient privilege. The doctor-patient privilege did not exist at common law. 2 C. Mueller & L. Kirkpatrick, Federal Evidence § 5.42 (3d ed.2010) (discussing Lord Mansfield's comments, in Duchess of Kingston's Trial, 20 Howell's State Trials 355, 573 (H.L.1776), that a physician committed no indiscretion when he revealed communications between himself and his patient “in a court of justice”). Its existence and scope depend on statute. Id. In Nevada, the doctor-patient privilege is codified at NRS 49.215–.245. NRS 49.225 states the general rule of doctor-patient privilege, as follows:
On appeal, the appellate court held that a paramedic did not qualify as a "doctor" for purposes of the privilege, and that therefore the statement made to the paramedic was not covered as a privileged communication by the statute:
The court, in order to ensure that this defendant's conviction would stick, further cemented its position as follows:
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Rogers bases his EMT- or paramedic-patient privilege claim on the doctor-patient privilege. The doctor-patient privilege did not exist at common law. 2 C. Mueller & L. Kirkpatrick, Federal Evidence § 5.42 (3d ed.2010) (discussing Lord Mansfield's comments, in Duchess of Kingston's Trial, 20 Howell's State Trials 355, 573 (H.L.1776), that a physician committed no indiscretion when he revealed communications between himself and his patient “in a court of justice”). Its existence and scope depend on statute. Id. In Nevada, the doctor-patient privilege is codified at NRS 49.215–.245. NRS 49.225 states the general rule of doctor-patient privilege, as follows:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among the patient, the patient's doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family.
On appeal, the appellate court held that a paramedic did not qualify as a "doctor" for purposes of the privilege, and that therefore the statement made to the paramedic was not covered as a privileged communication by the statute:
The Legislature recognizes and regulates EMTs as professionals whose services are “necessary for the health and safety of the people of Nevada.” NRS 450B.015; see NRS Chapter 450B. Over the years, the Legislature has expanded the definition of “doctor” for purposes of the doctor-patient privilege from the narrow Nevada-licensed “physician or surgeon” definition set forth in Fouquette, 67 Nev. at 536–37, 221 P.2d at 420–21, to encompass any person licensed or reasonably believed to be licensed under the laws of any state or nation to practice medicine, dentistry, or osteopathy, or who is employed as a psychiatric social worker. NRS 49.215(2). Despite this expansion, the Legislature has not included EMTs or paramedics in NRS 49.215(2)'s definition of “doctor.” As first responders, EMTs see and hear things that later witnesses can only surmise or reconstruct. Applying the narrow construction conventional to this court's interpretation of testimonial privilege statutes, we conclude that the doctor-patient privilege in NRS 49.225 does not apply to communications between an EMT or paramedic and patient when those communications do not occur in the presence, or at the direction, of a doctor, as defined in NRS 49.215(2). Accord Med–Express, Inc. v. Tarpley, 629 So.2d 331, 332 (La.1993) (because “ambulance technicians [are] not physician[s]' as [defined by statute], there is no privilege”); State v. LaRoche, 442 A.2d 602, 603 (N.H.1982) (“[t]he statute ... by its terms, applies only to physicians and surgeons and those working under their supervision [; s]ince EMT's are not physicians or surgeons, and there was no evidence that the EMT's were working under the supervision of a physician or surgeon, the privilege cannot protect the defendant's admission in the ambulance”); State v. Ross, 947 P.2d 1290, 1292 (Wash.Ct.App.1997) (a privilege statute covering statements “to physicians, surgeons, or osteopathic physicians or surgeons” does cover communications to a “responding paramedic”).
The court, in order to ensure that this defendant's conviction would stick, further cemented its position as follows:
Accepting Rogers' argument that, because an EMT is required by law to report to a medical director, this makes communications between an injured person and an EMT privileged would in effect expand the doctor-patient relationship to cover all EMT-patient communications and ignore the plain language in NRS 49.225. We recognize that a policy argument can be made that people who receive EMT services should enjoy the protections of the doctor-patient privilege for communications between them and the first responders. See People v. Mirque, 758 N.Y.S.2d 471, 477 (Crim.Ct.2003) (“A patient bound for the hospital by ambulance should not be required to master the rules of agency before speaking freely”; extending New York's physician-patient privilege to reach a patient's statement to an EMT); contra People v. Ackerson, 566 N.Y.S.2d 833, 834 (County Ct.1991). However, we cannot ignore the substantial competing concern with availability of evidence, particularly in the first-responder setting. Many of the cases addressing EMT-privilege or paramedic-privilege claims have arisen in the context of prosecutions for driving under the influence of drugs or alcohol. State v. Gates, No. 09–1241, 2010 WL 2598334 (Iowa Ct.App. Jun. 30, 2010); People v. Mirque, 758 N.Y.S.2d 471 (Crim.Ct.2003); State v. Barrett, No. CA2003–10–261, 2004 WL 2340658 (Ohio Ct.App. Oct. 18, 2004); State v. Ross, 947 P.2d 1290 (Wash.Ct.App.1997). It is for “the Legislature, not the court, ... to extend the literal language of the [doctor-patient] privilege [statute] to include paramedics.” Ross, 947 P.2d at 1293; Darnell, 674 N.E.2d at 22 (“were we to recognize that all communications between [emergency responders] and patients were privileged, we would be limiting the amount of testimony which could be offered at trial and, thereby, impeding the search for truth,” a “policy decision[ best left] to the legislature”); see also NRS 49.015(1) (providing that there are no testimonial privileges other than those required by the United States or Nevada Constitutions or provided by statute).
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Sunday, June 05, 2011
DWI Appeal - When the Juror and Witness Know Each Other
In Morris v. State of Texas, --- S.W.3d ----, 2011 WL 2163719 (Tex.App.-Dallas), the defendant appealed the conviction for DWI on the basis that the trial court should have declared a mistrial when it came out during trial that one of the jurors knew one of the witnesses.
During voir dire, no one was asked whether they knew any of the witnesses. After trial began, a witness to the defendants driving revealed that she knew one of the jurors. The witness was called outside the jury's presence and testified that she and one of the jurors had played soccer together for about two years, but had not been in contact for over a year. Morris moved for a mistrial arguing that the juror would likely find the witness credible because of their prior relationship. The trial judge then questioned the juror, who confirmed she had played soccer with the witness for one season about two years before, but they did not have a relationship outside of soccer and they had not spoken since then. The juror said that her prior relationship with the witness would not affect her in deciding the case. The trial court denied the motion for a mistrial.
The decision not to declare a mistrial was affirmed:
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During voir dire, no one was asked whether they knew any of the witnesses. After trial began, a witness to the defendants driving revealed that she knew one of the jurors. The witness was called outside the jury's presence and testified that she and one of the jurors had played soccer together for about two years, but had not been in contact for over a year. Morris moved for a mistrial arguing that the juror would likely find the witness credible because of their prior relationship. The trial judge then questioned the juror, who confirmed she had played soccer with the witness for one season about two years before, but they did not have a relationship outside of soccer and they had not spoken since then. The juror said that her prior relationship with the witness would not affect her in deciding the case. The trial court denied the motion for a mistrial.
The decision not to declare a mistrial was affirmed:
"The “mere fact that a juror knows, or is a neighbor, or an intimate acquaintance of, and on friendly relations with, one of the parties to a suit, is not sufficient basis for disqualification.” Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App. [Panel Op.] 1982) (quoting Allbright v. Smith, 5 S.W.2d 970 (Tex. Comm'n App.1928, judgm't adopted)). Mere acquaintance with the defendant or a State's witness is not a sufficient basis for disqualification of a juror. See Taylor v. State, 671 S.W.2d 679, 681 (Tex.App.—Dallas 1984, pet. ref'd). The juror's statement that the prior relationship would not affect her decision in the case supports the trial court's ruling. We overrule Morris's first point of error.
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Saturday, June 04, 2011
DWI Appeal - Notice and Demand Statutes and the Right of Confrontation
After SCOTUS approved of the use of notice-and-demand statutes, counsel needs to be conscientious of these provisions. In State of New Jersey v. Heisler, --- A.3d ----, 2011 WL 1885670 (N.J.Super.A.D.) the defendant was charged with (and convicted of) driving under the influence of marijuana. The New Jersey statute first requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and “all reports relating to the analysis in question.” Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate.
In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.
The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:
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In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.
The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:
"We find persuasive defendant's argument that he was not obliged to object to the introduction of the lab certificate until ten days after receiving supporting lab reports and data. To rule otherwise would undermine the dual goals of the notice and demand statute, N .J.S.A. 2C:35–19: (1) to enable defendants to make informed decisions regarding whether to object; and (2) to conserve time and resources of State Laboratory personnel by avoiding unnecessary court appearances. Because defendant objected before the State furnished him with the supporting materials, his objection was timely. Therefore, the court erred in admitting the lab certificate without testimony from the lab analyst and an opportunity for cross-examination."The case was remanded for a new trial. Of note was the appellate court's additional ruling barring the State from admitting the lab evidence:
"However, the State shall not have the opportunity to call the lab analyst and to cure the initial error of admitting the lab certificate. “A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial trial which were necessary to support a conviction.” State v. McLendon, 331 N.J.Super. 104, 108 (App.Div.2000)."Lastly, there was an interesting discussion of how to deal with defense attorneys who ALWAYS object to lab reports and insist on confrontation:
While we have discouraged a defendant's “pro forma insistence” that the author of a lab certificate appear in court, we have recognized the defendant's right of confrontation. State v. Kent, supra, 391 N.J.Super. at 380; see also id. at 385–90 (Stern, J., concurring) (concluding that the Supreme Court would apply the Confrontation Clause protections to defendants in prosecutions for quasi-criminal violations involving driving while intoxicated). A defendant need not justify his or her decision to exercise his or her constitutional right of confrontation. An accused is entitled to confront the lab certificate's author, so long as a timely objection is made. State v. Rehmann, ––– N.J.Super. ––––, –––– (App.Div.2011) (slip op. at 5) (“Prior to Melendez–Diaz, we recognized the accused's right to confront the author of a BAC certificate.”); State v. Kent, supra, 391 N.J.Super. at 375 (holding that “defendant was constitutionally entitled to cross-examine the declarants who authored” laboratory reports and blood sample certificate); id. at 382 (stating that defendant may waive his confrontation right by failing to make timely demand for the author's appearance)."
"The effective operation of the notice and demand statute depends in part on the presumption that, as a practical matter, “in the majority of cases a defendant will not challenge the certificate ‘either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance.’ “ State v. Simbara, supra, 175 N.J. at 49 (quoting State v. Miller, supra, 170 N.J. at 431). However, if the defendant is unable to determine, because of the absence of laboratory data, whether there is a basis to wage a “true contest” over the nature of the substance, then the defendant may lodge a protective objection."
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Friday, June 03, 2011
DUI Appeal - Trial Taxes and LIDAR in Vermont
State of Vermont v. de Macedo Soares, --- A.3d ----, 2011 WL 2091122 (Vt.), 2011 VT 56 is not a DUI - it is a speeding LIDAR case. However, the challenges raised may help DUI/DWI attorneys. Here, the defense challenged the legality of a system where those who went to trial were required to pay more than those who pleaded guilty. Defendant first argued that the traffic citation was unconstitutional because: (1) the penalty range applies only when a defendant chooses to maintain a constitutionally protected right to challenge the citation; (2) the $50 in court costs is assessed only if a defendant is found guilty following a hearing; (3) the waiver amount is an improper incentive to settle that chills a defendant's right to challenge a citation; (4) the solicitation of a guilty plea violates the principle of a presumption of innocence; and (5) the process for issuing a citation does not assure a knowing and intelligent waiver of constitutional rights.
The Vermont court acknowledged that the arguments had merit, but ultimately declined to find in the defendant's favor, stating as follows:
Insofar as the LIDAR Frye issue (which was also raised) was concerned, the court also found againt the defendant:
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The Vermont court acknowledged that the arguments had merit, but ultimately declined to find in the defendant's favor, stating as follows:
"Defendant was cited for a civil traffic violation, not a criminal offense; therefore, the principal cases he relies on to support his constitutional arguments— United States v. Jackson, 390 U.S. 570 (1968) and Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620 (1973)—are inapposite. In Jackson, the Supreme Court struck down the death penalty clause of the Federal Kidnapping Act, which allowed the death penalty to be imposed only on those defendants who were found guilty after pleading not guilty and requesting a jury trial. 390 U.S. at 585. The Court concluded that applying the death penalty only to defendants who assert their right to contest their guilt before a jury unconstitutionally chilled defendants' right to plead not guilty and to demand a jury trial. Id. at 581. In Veilleux, we applied the Jackson rationale to strike down a statute that provided for a six-month driver's license suspension only for defendants who pled not guilty after being charged with driving while intoxicated. 131 Vt. at 38–39, 300 A.2d at 624. We emphasized that the provision could not pass constitutional muster because the license suspension “falls only upon those who exercise the fundamental right to plead not guilty to a criminal charge upon which the constitutional rights guaranteed to a defendant in criminal proceeding are contingent.” Id. at 40, 300 A.2d at 625."
Insofar as the LIDAR Frye issue (which was also raised) was concerned, the court also found againt the defendant:
"Before the traffic bureau, defendant moved to dismiss all evidence concerning use of laser technology for “lack of foundation” because “there is no judicial notice of laser.” In making this argument, defendant cited an Illinois appellate court case rejecting a trial court's judicial notice of an evidentiary hearing held in an unrelated trial court case in which the court found the use of a laser device to be generally accepted. See People v. Canulli, 792 N.E.2d 438, 444–45 (Ill.App.Ct.2003). On appeal, in a one-sentence argument, defendant asserts that the court erred in admitting the LIDAR results because radar and LIDAR are not the same, no Vermont authorities confirm the reliability or admissibility of LIDAR technology, and the district court did not give “judicial notice” of the reliability of the technology. We find no merit to this argument. Defendant has not identified any evidence suggesting that the LIDAR device incorporates a novel technology or is significantly different from or less accurate than other speed-detection devices. Indeed, several jurisdictions, including Illinois, have held that the reliability of this technology has been sufficiently demonstrated to allow its introduction into evidence without first holding an underlying evidentiary hearing on its reliability. See, e.g., State v. Williamson, 166 P.3d 387, 389–90 (Idaho Ct.App.2007) (citing other jurisdictions that have accepted general reliability of laser device in support of holding “that laser speed detection devices are generally reliable and their results may be admitted into evidence in Idaho courts” without either taking specific judicial notice or requiring scientific evidence of laser's reliability); People v. Mann, 922 N.E.2d 533, 537–38 (Ill.App.Ct.2010) (concluding that decisions from other jurisdictions “are ample authority that the use of LIDAR to measure the speed of moving vehicles is based on generally accepted scientific principles”). Defendant's reliance upon Canulli is unavailing insofar as the appellate court in that case reversed the trial court because it had relied upon an inadequately litigated, nonbinding decision in another trial court case involving a different type of laser technology from the technology being challenged in Canulli. See Mann, 922 N.E.2d at 535–36; Canulli, 792 N.E.2d at 444–45. Accordingly, the hearing officer did not abuse his discretion in admitting results from the use of the LIDAR laser device without first holding an evidentiary hearing on the device's reliability.
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DUI Appeal - Sobriety Tests Inadmissible in Per Se Case Says Ohio Court
The below case was provided to DAD thanks to the watchful eyes (and summary) of NCDD member Jeff Meadows. He has provided the summary below:
State v. Henricksson
4/4/2011
2011-Ohio-1632
12th District Court of Appeals
Document QUICK LINK: View Court Published Official Document
Issues: HGN, video, admissibility, 4511.19(A)(1)(h)
Case Summary Overview:
D was stopped for weaving within her lane and changing lanes without signaling. Ultimately she was arrested for OVI and charged with A1a and A1h. Her MTS was denied and the case was tried to the court - whereupon the prosecutor dismissed the A1a and went forward with ONLY the A1h charge.
During trial, the Defense tried to offer evidence of the HGN and cruiser-cam video, but the State objected and the court sustained the objection. Defendant was convicted and sentenced to the high tier penalties. This appeal followed raising many issues but of particular importance is the issue of admissibility of the HGN and video on a PER SE trial.
HELD: The 12th District affirmed holding: "..the state was only required to prove two elements; namely, that appellant was operating a vehicle within the state, and that, at the time of the offense, she had a concentration of .17 of one gram or more by weight of alcohol per 210 liters of her breath." "See State v. Jobe (July 13, 1998), Clermont App. No. CA97-10-083, at 4-5; State v.
Knapke, Franklin App. No. 08AP-933, 2009-Ohio-2989, ¶8. As a result, because these two facts are the only facts of consequence in this case, the HGN test results, as well as the
video taken from Trooper Bierer''s in-dash camera, are not relevant in prosecuting a violation of R.C. 4811.19(A)(1)(h), and therefore, not admissible.1 See State v. Boyd (1985), 18 Ohio St.3d 30, 31; see, also, State v. Obhof, Franklin App. No. 07AP-324, 2007-Ohio-5661, ¶16; Evid.R. 402."
They also include an interesting footnote that states: "It should be noted, however, that appellant could have challenged the accuracy of her specific breathalyzer test result by introducing evidence showing "something went wrong with [the] test and consequently, the result
was at variance with what the approved testing procedure should have produced." Columbus v. Aleshire, 187
Ohio App.3d 660, 2010-Ohio-2773, ¶24, 27; see, also, State v. Tanner (1984), 15 Ohio St.3d 1, 6 ("[a] defendant
may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy
of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels")."
This commentator finds it interesting that the footnote references the "legislatively determined test procedures" since there are NO LEGISLATIVELY DETERMINED TEST PROCEDURES!!!
This commentator also believes this case can be used to open, or at least unlock the VEGA door since the OSC in VEGA stated: "...Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape..." "...and the completion of field sobriety tests." 12 Ohio St.3d 185, 189.
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State v. Henricksson
4/4/2011
2011-Ohio-1632
12th District Court of Appeals
Document QUICK LINK: View Court Published Official Document
Issues: HGN, video, admissibility, 4511.19(A)(1)(h)
Case Summary Overview:
D was stopped for weaving within her lane and changing lanes without signaling. Ultimately she was arrested for OVI and charged with A1a and A1h. Her MTS was denied and the case was tried to the court - whereupon the prosecutor dismissed the A1a and went forward with ONLY the A1h charge.
During trial, the Defense tried to offer evidence of the HGN and cruiser-cam video, but the State objected and the court sustained the objection. Defendant was convicted and sentenced to the high tier penalties. This appeal followed raising many issues but of particular importance is the issue of admissibility of the HGN and video on a PER SE trial.
HELD: The 12th District affirmed holding: "..the state was only required to prove two elements; namely, that appellant was operating a vehicle within the state, and that, at the time of the offense, she had a concentration of .17 of one gram or more by weight of alcohol per 210 liters of her breath." "See State v. Jobe (July 13, 1998), Clermont App. No. CA97-10-083, at 4-5; State v.
Knapke, Franklin App. No. 08AP-933, 2009-Ohio-2989, ¶8. As a result, because these two facts are the only facts of consequence in this case, the HGN test results, as well as the
video taken from Trooper Bierer''s in-dash camera, are not relevant in prosecuting a violation of R.C. 4811.19(A)(1)(h), and therefore, not admissible.1 See State v. Boyd (1985), 18 Ohio St.3d 30, 31; see, also, State v. Obhof, Franklin App. No. 07AP-324, 2007-Ohio-5661, ¶16; Evid.R. 402."
They also include an interesting footnote that states: "It should be noted, however, that appellant could have challenged the accuracy of her specific breathalyzer test result by introducing evidence showing "something went wrong with [the] test and consequently, the result
was at variance with what the approved testing procedure should have produced." Columbus v. Aleshire, 187
Ohio App.3d 660, 2010-Ohio-2773, ¶24, 27; see, also, State v. Tanner (1984), 15 Ohio St.3d 1, 6 ("[a] defendant
may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy
of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels")."
This commentator finds it interesting that the footnote references the "legislatively determined test procedures" since there are NO LEGISLATIVELY DETERMINED TEST PROCEDURES!!!
This commentator also believes this case can be used to open, or at least unlock the VEGA door since the OSC in VEGA stated: "...Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape..." "...and the completion of field sobriety tests." 12 Ohio St.3d 185, 189.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
Wednesday, June 01, 2011
DWI Appeal - Minnesota Source Code Expert Disallowed
In State of Minnesota v. Hamblin, Not Reported in N.W.2d, 2011 WL 1833089 (Minn.App.) the defense sought funds to provide for an expert to attack the source code of the Intoxilyzer 5000EN. The trial court denied the motion.
On appeal, the court first stated the applicable law:
The court responded as follows:
In denying the appeal, the court found:
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On appeal, the court first stated the applicable law:
"In Minnesota, an indigent defendant may request funding from the district court for necessary expert-witness services. Minn.Stat. § 611.21(a) (2010). On finding that the requested services are necessary, “the court shall authorize counsel to obtain the services on behalf of the defendant.” Id. The burden of making a threshold showing to the district court of the need for expert assistance is on the defendant. State v. Volker, 477 N.W.2d 909, 911 (Minn.App.1991). A defendant must give specific reasons for needing an expert. Id.; State v. Richards, 495 N.W.2d 187, 197–98 (Minn.1992) (stating defendant must present trial court with some specific evidence that expert's testimony is necessary to the defense).
Hamblin argued he needed an expert to make a threshold showing to support his request for production of the Intoxilyzer 5000EN source code. He claimed that because expert services are required for such a request, the court's refusal to grant funds for an expert denied him the right to a fair trial.
The court responded as follows:
"Hamblin accurately asserts that in order to comply with State v.. Underdahl, 767 N.W.2d 677 (Minn.2009) ( Underdahl II ), he needed to obtain expert services. The district court's denial of Hamblin's original motion for discovery of the Intoxilyzer 5000EN source code preceded Underdahl II. Since Underdahl II, we have yet to conclude that a discovery motion seeking an Intoxilyzer source code is sufficient without testimony or an affidavit from an expert witness.FN1 Each time this court has found a denial of a pretrial discovery motion seeking Intoxilyzer source codes to be an abuse of discretion, the appellant has supported the motion with testimony or an affidavit by an expert. See, e.g., State v. Granse, No. A09–2192, 2010 WL 4451243 (Minn.App. Nov. 9, 2010); Scholl, No. A08–2138; Lund, 2009 WL 1587135. Retaining an expert, however, does not guarantee a discovery motion will be granted. Underdahl II requires a “plausible showing” that the Intoxilyzer source code “would be both material and favorable” to appellant. 767 N.W.2d at 684.
In denying the appeal, the court found:
"The extent of Hamblin's argument to the district court in the record on appeal is his attorney's remarks at trial, in which he stated Hamblin requested funds for “a computer forensic expert to evaluate or challenge the results of the Intoxilyzer 5000.” Put another way, it was a “pre- Underdahl II ” argument. Hamblin did not specify why the expert would be necessary to aid Hamblin's defense at trial. The record is barren of any information necessary to determine whether the district court abused its discretion in refusing Hamblin expert-witness fees. We affirm on that issue."
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Cop Pulls Over Drunk Guy in Moto Gear
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