DUI Laws - Montana Jury Selection Comments by Prosecutor OK

In City of Billings v. Staebler, --- P.3d ----, 2011 WL 4828842 (Mont.), 2011 MT 254 the defendant appealed her conviction on the ground including that the prosecution voir dire of the jurors was improper. On appeal, the defense brief complained of the following items as ineffective assistance at trial:

"Counsel also argued that Staebler's trial counsel's failure to object in three instances amounted to prejudicial ineffective assistance of counsel. Specifically, the attorney was ineffective when: (1) he did not object to the prosecutor's statement that someone is always being struck and killed by drunk drivers; (2) he failed to request private questioning of a prospective juror who had familiarity with a person being killed by a drunk driver; and (3) he failed to object to the hypothetical inference that a child may be killed due to Staebler's driving."

"Before the district court, Staebler appeared with privately retained counsel who challenged Staebler's conviction in a written brief. Counsel alleged that Staebler was not afforded a fair trial, where, during voir dire, the prosecutor referenced a Billings Gazette newspaper series on driving under the influence of alcohol. The prosecutor quoted material from this series, noting that for drinking *2 and driving offenses, “there is always somebody being struck or killed.”

The appeals court wrote:

"The City attorney referenced DUI newspaper stories that frequently and dramatically report deaths that are occasioned by drunk drivers. She also addressed the less extreme cases involving drivers who had a few drinks and were stopped by an experienced officer upon witnessing slightly impaired driving. We find nothing in her comments that served to unfairly imply either that Staebler's conduct was any worse than it actually was or that it involved death or serious injury. When explaining the gradations, or levels, of intoxication, the City attorney merely discussed both extremes. The appellate court held that this was not error.

"Staebler's second claim of error pertained to a discussion between the City attorney and a prospective juror regarding the prospective juror's friend whose daughter had been killed in a DUI accident. This discussion was not lengthy and it allowed the City to determine that the prospective juror should be removed for cause. Apparently the juror made several unusual comments. We see nothing in the record indicating that other members of the jury were inflamed or prejudiced against Staebler by the completely unpredictable comments of this juror."

 In conclusion, the trial court found no error and affirmed.
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Field sobriety tests may not be always be accurate - News Story - KTVU San Francisco

Field sobriety tests may not be always be accurate - News Story - KTVU San Francisco 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!

DUI Law - Michigan Says Certificate of Mailing Inadmissible Confrontation Clause Violation

This case comes to DAD thanks to the watchful eyes of incoming Michigan State Delegate Mike Nichols. In People V. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.) the State appealed the circuit court's order denying the prosecution's motion in limine to admit the Secretary of State's certificate of mailing on the ground that it violated defendant's right to confront witnesses against him.

According to the pertinent facts, a police officer cited defendant for driving while license suspended, (DWLS). The prosecutor obtained defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office. Included as part of defendant's driving record is a “Certificate of Mailing of Orders and Rest Lics .” The certificate provides in the relevant provisions:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 [handwritten] OFFICER OR EMPLOYEE F. BUETER

 On July 27, 2010, the district court held a hearing on the prosecutor's motion in limine. The district court held that by its nature, a “certificate” requires a signature and that because, “I don't find any other reason why this document would be used except in litigation,” the Confrontation Clause in the sixth amendment of the federal Constitution requires that, in order for the certificate to be admitted in defendant's trial, the person who prepared the certificate must appear and be subject to cross-examination. In sum, the district court denied the prosecution's motion in limine finding that a signature was required on the certificate in order for it to be effective as a basis for a DWLS charge, and, that admission of the certificate without testimony of its author would violate defendant's Sixth Amendment Confrontational Clause rights.


On appeal, the prosecutor argued that the certificate of mailing at issue is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” [ Melendez–Diaz, 129 S.Ct at 2538–2539 (citations omitted).]

The Michigan appellate court wrote in response:


"The prosecutor asserts that the situation in the present case is identical, arguing that Secretary of State records are similar to a clerk's certification. The prosecutor has missed a crucial distinction. If the document at issue was merely a copy of defendant's driving record sent along with the “Certificate of Mailing,” and “F. Beuter” was merely certifying the authenticity of that record, the prosecutor would have an excellent point. But, the copy of the record is not at issue and Beuter was not certifying its authenticity. Beuter was certifying that the notice of suspension had been sent, the very fact that must be proved to convict defendant of DWLS. The critical distinction is that the author of the certificate of mailing, here F. Bueter, is providing more than mere authentication of documents, he is actually attesting to a required element of the charge. Unlike a docketing statement or clerk's certification, the certificate of mailing will be used against defendant to prove an element of DWLS–2nd offense and is necessary for establishing an essential fact at trial.


The prosecutor also argued that the certificate of mailing is admissible because the Secretary of State's records are not prepared “solely” for trial. It cited to state law requiring that notices of suspensions be sent to the driver and that records of the same be maintained. in rejecting this position, the court replied:

"Careful review of MCL 257.204a reveals that it does not require creation of the certificate or maintenance of the certificates in the Secretary of State's records. Although MCL 257.204a(1)(h) requires the maintenance of “notices,” it does not require records to be kept of the certificates verifying the fact that a notice has been sent. Our review of the record in this case shows that the certificate of mailing does not appear in defendant's certified driving record. The Secretary of State created the certificate of mailing independent of MCL 257.204a.


Additionally, the court wrote:


"A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." (emphasis in original)"

In sum, the court stated:


"It is important to keep in mind just what the prosecutor wants to have admitted and what the lower courts refused to admit. It was not defendant's driving record. Nor was it the notice of suspension. It was the certificate of mailing that the notice of suspension was in fact mailed to defendant. The key factor in this case is that the certificate of mailing is proof of notice by virtue of the plain language of MCL 257.212, which will indisputably be used to establish an element of the offense charged."

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DUI Law - Florida Says Search Warrants for Blood Draw on Misdemeanors Illegal

In State of Florida v. Geiss, --- So.3d ----, 2011 WL 2097694 (Fla.App. 5 Dist.), 36 Fla. L. Weekly D1132, the Defendant was charged with driving under the influence (DUI). A search warrant was issued for his blood. The Circuit Court, Brevard County, George Maxwell, J., suppressed results of defendant's blood test. State appealed.


On appeal, the appellate court held that the State lacked statutory authority to draw blood as property used as a means to commit misdemeanor DUI. The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime:

"In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss's prior DUI record, the affidavit for the search warrant did not set forth Geiss's complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562–63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime—whether felony or misdemeanor—may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not."


Geiss argued that blood is not “property” within the meaning of the statute. The appellate court wrote:


"The statute uses the word “property,” a broad and flexible term that is not defined in the statute. It is a term that should properly be construed in the context of the statute's purpose of identifying items that are the proper subject of a search warrant. In that sense, “property” does not exclude those substances that are naturally produced by the human body. Human blood, whether it is being stored for later transfusion in a hospital refrigerator, being donated to a blood bank or flowing through the veins of an arrestee, is something tangible over which a person or entity may exercise ownership, which has value and which may be sold or transferred for consideration like other material objects. In those important respects, blood is indistinguishable from other fluid materials such as vodka, insulin or gasoline and like each of them may be seized, secured and subjected to chemical and other scientific analysis. The fact that it would require an invasive procedure to extract fluids from the human body does not alter the form or composition of human blood or make it any less suitable a subject for a search warrant.




State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Fla. Brevard County Ct.2004), aff'd, Isley v. State, Case No. 05–2004–AP–59852 (Fla. 18th Cir. Ct. 2005). Other Florida trial courts have reached the same conclusion. See State v. St. George, 16 Fla. L. Weekly Supp. 324a (Fla. Duval County Ct.2009); State v. McKinnon, 16 Fla. L. Weekly Supp. 329a (Fla. Duval County Ct.2009). This reasoning is persuasive. Blood may be extracted from the body and donated and/or sold for further use. And, blood has long been routinely seized for testing as evidence in many types of criminal cases. It only makes sense that the legislature would intend the term “property” to broadly include the types of physical items that would routinely be seized in connection with a criminal investigation."


The appellate court nevertheless found that the search warrant was unauthorized:


"However, we agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value.FN4 And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (citations omitted), and that search warrants must strictly conform to the statutes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.


Unfortunately, applying the good faith exception to warrants as stated in U.S. v. Leon, the appeals court held that the good faith exception to the exclusionary rule applied and reversed the suppression.

Editor's Note: Even though this blood draw squeezed in under the gun due to a 'good faith' exception, such an exception arguably cannot be used again, because the courts have now put the police on notice (through this opinion) that such warrants are legally unauthorized.

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DUI Laws - Hawaiii Finds No Probable Cause for DUI Arrest

In Hawaii v. Sereno, 125 Hawai'i 246, 257 P.3d 1223 (Table), 2011 WL 2464753 (Hawai'i App.), the trial court granted a motion to suppress, finding no probable cause to arrest for DUI, after the officer testified that the defendant's car was struck by another vehicle, and then collided with and went into a house. The judge found that, without evidence that the defendant was at fault, the accident itself was of no consequence. The court found that the instances of evasiveness by the defendant were inconsequential as well. Finally, the court found the odor, eyes, and flushed face insufficient for an arrest. the trial court also refused to infer consciousness of guilt from the defendants refusal to perform field sobriety tests.



On appeal, the granting of the motion to suppress was affirmed:



"Although Officer Arnds did not “acknowledge that he did not observe [Sereno's] speech was slurred,” considering that the officer did not observe Sereno to have any problems with balance or fumbling of paperwork, that Sereno “produced all documentation as requested” and “responded to all questions[,]” where “all answers were appropriate and consistent[;]”that the district court, upon viewing the video of the accident scene found “that [Sereno] displayed no overt indicia of intoxication or impairment due to alcohol[;]”that “[t]he videographer testified that he could not smell alcohol from [Sereno] from a couple of feet distance[;]”and that Sereno had admitted to Officer Arnds that he had been drinking, the district court's conclusion that Sereno had nothing to hide “by turning away or maintaining distance” from the officer and declining to “infer a consciousness of guilt” therefrom is not wrong."
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DUI Law - Utah Upholds Stop On Collective Knowledge Doctrine

In State of Utah v. Houston, one cop --- P.3d ----, 2011 WL 4865169 (Utah App.), 2011 UT App 350 the State appealed the district court's grant of Defendant Patricia Salazar Houston's motion to suppress evidence seized after a traffic stop. The facts were as follows:

"In November 2008, Deputy Avery Stewart responded to a report of retail theft at a grocery store in Providence, Utah. While on site, Deputy Stewart spoke to Trooper Phil Rawlinson, who was off duty at the time. While the two were speaking, Trooper Rawlinson observed Houston driving her car out of the grocery store parking lot. Trooper Rawlinson had previously arrested and cited Houston on numerous occasions. Twice in 2006, he was involved in arresting Houston for driving under the influence, and in 2007, he issued Houston two citations for driving under a revoked license. When arresting Houston in 2006, Trooper Rawlinson discovered that Houston's license was revoked until 2012. In addition, just a few days before seeing Houston in November 2008, Trooper Rawlinson verified in a Driver License Division computer database that Houston's license was still revoked."

The appeals court first discussed the law commonly referred to as "the collective knowledge doctrine":

"Typically, the “officer's own observations and inferences” support his or her reasonable suspicion determination. See State v. Case, 884 P.2d 1274, 1276–77 (Utah Ct.App.1994). “However, ‘under certain circumstances the officer may rely on other sources of information’ such as ‘bulletins[ ] or flyers received from other law enforcement sources,’ so long as ‘the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop.’ “ State v. Roybal, 2010 UT 34, ¶ 14, 232 P.3d 1016 (alteration in original) (quoting Case, 884 P.2d at 1277). A “flyer” has been defined as “any information intended to prompt investigation that is transmitted through police channels, regardless of method.” Id. (internal quotation marks omitted). Also, “the collective knowledge doctrine (sometimes referred to as the fellow officer rule) allows the objectively reasonable articulable suspicion to be based on the totality of the circumstances and the collective knowledge of all the officers involved.” State v. Prows, 2007 UT App 409, ¶ 13, 178 P.3d 908 (internal quotation marks omitted). In Prows, we held that if one officer had reasonable suspicion to effectuate a level two traffic stop and passed that information along to a second officer, under the collective knowledge doctrine, that reasonable suspicion was imputed to the second officer and justified the second officer's level two traffic stop." 

"Thus, if Trooper Rawlinson possessed reasonable suspicion that Houston was driving a vehicle with a revoked driver license, then that reasonable suspicion can be imputed to Deputy Stewart. This is true regardless of whether Trooper Rawlinson articulated how he obtained his knowledge about Houston's driver license to Deputy Stewart. See Case, 884 P.2d at 1277 & n. 5 (emphasizing that only the originating officer is required to have reasonable suspicion and that the second officer may accept the information “at face value”).

Applying that doctrine to the instant case, the court found that the stop was proper, and reversed:

"[W]e determine that Trooper Rawlinson had sufficient personal interactions with and knowledge about Houston, including a recent verification of her license's status, to raise reasonable suspicion that Houston was driving on a revoked license. The record indicates that Trooper Rawlinson verified the status of Houston's license on the Driver License Division computer a few days prior to Houston's November 2008 arrest, which the district court acknowledged in voicing its concern that Deputy Stewart had not obtained this precise information from Trooper Rawlinson before stopping Houston. Upon seeing Houston drive out of the lot, Trooper Rawlinson was able to identify her by name to Deputy Stewart and articulate that she was driving on a revoked license.


In spite of the possibility of a glitch in the Driver License Division computer that Trooper Rawlinson used or that Houston's license could have been reinstated just after Trooper Rawlinson used the computer, which were concerns articulated by the district court, we conclude that Trooper Rawlinson had reasonable suspicion that Houston's license was still revoked. Because Trooper Rawlinson had reasonable suspicion that Houston was driving a vehicle with a revoked driver license, that reasonable suspicion is imputed to Deputy Stewart. See Prows, 2007 UT App 409, ¶ 14. Therefore, Deputy Stewart had reasonable suspicion that Houston was driving on a revoked license, which justified the traffic stop."

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OUI Law - Mass Court Allows Extraterritorial Arrest Under Inevitable Discovery Doctrine

In Commonwealth v. Lahey, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 4790770 (Mass.App.Ct.) a police officer who was outside his jurisdiction, and returning to his territory following an ambulance escort to a hospital, came across a drunk driver travelling in the oncoming lanes, who ran him off the road. He turned around, caught up to the car, and ultimately arrested the individual for DUI. A police officer from the correct town was less than one minute away as a result of a dispatch he had received regarding the same vehicle.
On appeal, the court found that the original stop of the vehicle was improper, as it was an extrajurisdictional arrest by an officer without authority. The court also found that, even though the driver had 7 DUIs and therefore was committing a felony, the stop was not authorized under the felony exception to the law, since the cop had no knowledge of the priors until later. The appeals court also found that there was no community caretaking exception to the extrajurisdictional arrest doctrine, and held that it was up to the legislature to so carve an exception.
However, the appeals court did find that suppression was not available, under the inevitable discovery doctrine. The court found that the proper arresting authority, being so close to the event and having been specifically dispatched to the area for the purpose of finding the drunk driver, would have inevitably stopped and arrested the same.
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OUI Law - MA Law on Juror Replacement During Deliberations

In today's case the issue involved the replacement of a juror during deliberations. In Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.) during jury deliberations, the trial judge dismissed a juror because of a communication problem raised by other jurors. The defendant appealed upon two grounds: (1) that the judge discharged the juror without good cause in violation of the defendant's due process rights; and (2) that the judge's failure to instruct the remaining jurors on the reason for the discharge prejudiced the defendant.







The appeals court found no error:







"The trial judge did not abuse his discretion when he removed Mr. B because he had language problems. Mr. B admitted that he was having difficulty understanding the deliberations. When the judge asked Mr. B whether he did not feel fluent enough, Mr. B's response—“To make a decide this case”—permitted the trial judge to find that Mr. B had problems with the English language. See Commonwealth v. Leftwich, 430 Mass. 865, 873 (2000) (noting that inability to perform functions of juror must be supported by record). An inability to speak and understand the English language disqualifies a person from jury service; thus it is good cause for discharge. See G.L. c. 234A, § 4; Commonwealth v. Acen, 396 Mass. 472, 479 (1986) (“It is unquestionable that an ability to speak English is a relevant and important qualification for jurors”). Additionally, the language problem was obviously personal to Mr. B and unrelated to the issues of the case."







As to instructing the other jurors as to the reason for discharge, the law on that issue in MA states:







“If a juror is discharged and an alternate substituted, the jury should be instructed not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846. However, “[a] judge is not required in every case to adhere to the precise language ... used in Commonwealth v. Connor.” Commonwealth v. Zimmerman, supra at 151. Some circumstances that surround the discharge of a deliberating juror “will leave no room for speculation as to the reason for the discharge, such that the failure to give a Connor instruction is not error.” Ibid .







The appeals court found no actual error. "This case presents the circumstances which do not require the Connor instruction. The reason for the discharge was obvious to all the jurors. The judge was informed that “several” jurors were having difficulty communicating with Mr. B. In each individual colloquy, the judge confirmed the issue by referencing a difficulty in communicating with Mr. B."

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DUI Law - Ohio Says Reasonable Suspicion Means More than Mere Odor

In State of Ohio v. Santiago, Slip Copy, 2011 WL 4863973 (Ohio App. 2 Dist.), 2011 -Ohio- 5292, the defendant was arrested for DUI and during an inventory search drugs were found in the glovebox. On appeal the defendant contested, inter alia, the basis for the request to submit to field sobriety testing. The defendant agreed that the initial stop for a minor traffic offense (driving left of center) was lawful, but he contended that the additional request for the performance of filed sobriety tests was not supported by ample reasonable suspicion. The Ohio Court first examined precedent:



"In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No.2000–CA–30. See, also, State v. Swartz, Miami App. No.2008CA31, 2009–Ohio–902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No.2001CA35, 2001–Ohio–7081 (holding that “strong” odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).







"Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a “very fact-intensive” determination. State v. Wells, Montgomery App. No. 20798, 2005–Ohio–5008, ¶ 9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, Montgomery App. No. 19323, 2003–Ohio–1047, ¶ 14, quoting State v.. Andrews (1991), 57 Ohio St.3d 86, 87–88."







The court then recited the applicable facts in the instant appeal:







"At the suppression hearing, Officer Kunkleman testified that he observed Santiago “driving left of center, driving down the middle of the roadway” in the early morning hours of December 6, 2009; there were two passengers in the car. Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found “suspicious.” When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were “tired” and “glassy” and that an “odor of alcohol” was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could “smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage” on Santiago."







The court then concluded that reasonable suspicion existed:







"The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago)—independent of the car or someone else in the car—smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.







The opinion also noted that other Ohio courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8–04–10, 2006–Ohio–6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003–Ohio–162.

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DUI Law - Florida Court Refuses Source Code Subpoena

This case comes to DAD from the watchful eyes of Bubba Head. NCDD member Mike Snure's firm was involved. In CMI Inc. v. Ulloa, --- So.3d ----, 2011 WL 4102296 (Fla.App. 5 Dist.), 36 Fla. L. Weekly D2044, the manufacturer of the Intoxilyzer 5000 and 8000 breath testing machines challenged the county court decisions in the underlying prosecutions of several defendants for driving under the influence of alcohol (DUI), denying manufacturer's motions to quash subpoenas duces tecum, and seeking to require production of computer source code for manufacturer's machines, which subpoenas had been served on the manufacturer's registered agent in the state of Florida v. Kentucky.



The appellate court held that the defendants could not obtain documents containing source code simply by serving subpoenas duces tecum on the manufacturer's registered agent in state. This case is in direct contradiction to the other Florida case of CMI, Inc. v. Landrum, 64 So.3d 693 (Fla. 2d DCA 2010), review denied, 54 So.3d 973 (Fla.2011). it also contradicts the Georgia case of Yeary v. State, --- S.E.2d ----, 2011 WL 2436664 (Ga.).



Looks like the Florida Supreme Court will have to settle the issue after all....

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DUI Law - Nebraska Says Driveway Arrest and Refusal Illegal

This case has plenty of great statements of law. In State of Nebraska v. McCave, --- N.W.2d ----, 282 Neb. 500, 2011 WL 4861872 (Neb.) the defendant is found inside his car allegedly intoxicated. The car is parked in the private driveway of his father's house with the vehicle not running. While he was listening to music on the car radio, his father told him to turn the volume down and leave. After he refused, his father called the police. The police, after a confrontation, arrested McCave for trespass and driving under the influence of alcohol (DUI). Later, the State additionally charged him with resisting arrest, refusing to submit to a chemical breath test, and possessing an open container of alcohol in a vehicle.







As per the opinion, this appeal presents several interrelated issues:







1. Did the evidence show that McCave had operated or was in actual physical control of his vehicle on a public highway or on private property that is open to public access?







2. Did the evidence show that McCave possessed an open container of alcohol on a public highway or in a public parking area?







3. Does an officer's lack of probable cause for a DUI arrest bar a prosecution for refusing to submit to a chemical test?







4. In the criminal trespass prosecution, was evidence showing that McCave's stepmother had consented to McCave's presence at her house admissible?









In Nebraska, a DUI must occur on public property, or on private property that is open to the public access. Nebraska had found that an appartment parking lot was open to access. here, the Supreme Court found as a matter of law that a private residential driveway does not constitute a place where DUI can occur, as it is not "open to public access."



Further, the high court found that the cops did not have probable cause to arrest for DUI, so the defendant's refusal should have been suppressed. Additionally, the Supreme Court found that retrial was not warranted becuase as a matter of law the evidence was insufficient to convict.



Lastly, the court found that the statement of the sister of defendant, i.e. that the defendant had permission to be on the property, was not 'hearsay" becuase it constituted a "verbal act" and as such should have been admitted in regards to the trespass count. . "A verbal act is a statement that has legal significance, i.e., it brings about a legal consequence simply because it was spoken." "A statement offered to prove its impact on the listener, instead of its truth, is offered for a valid nonhearsay purpose if the listener's knowledge, belief, response, or state of mind after hearing the statement is relevant to an issue in the case."

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DUI Law - Wisconsin Says Car Search For Pot OK After OWI Arrest

In State of Wisconsin v. Billips, Slip Copy, 2011 WL 4578555 (Wis.App.), the defendant Billips was stopped for speeding. The officer Kinservik noticed some open bottles in the vehicle, one of which had dark liquid similar to alcohol. The driver was removed and eventually arrested for OWI. Subsequent to the arrest, the officer returned to the vehicle, recovered the open bottle, and also located a marijuana cigar end, a “blunt,” in plain view on the center console of the car. The officer then searched a purse that was in the backseat of the car and found more marijuana inside the purse. The defendant claimed that these items were located during an illegal inventory search that violated the recent SCOTUS case of Arizona v. Gant.
The appeals court reversed, holding that the search of the vehicle was justified to find more evidence of intoxication, including returning to the vehicle to recover the open bottle of possible alcohol:


"In reaching our conclusion, we reject Billips' contention that Kinservik's removal of an open bottle of alcohol prior to her arrest renders the subsequent search of her vehicle unreasonable under Gant. Specifically, Billips contends that at the point of her arrest, “it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle.... [I]f Ms. Billips left intoxicants in plain view in her vehicle, it is not reasonable to assume there were others stashed away out of the deputy's sight.” In other words, Billips argues that because Kinservik had already removed some evidence from her vehicle, it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. This same argument was considered by this court in State v. Smiter, 2011 WI App 15, ¶ 16, 331 Wis.2d 431, 793 N.W.2d 920, and rejected as “nonsensical.” There, the court observed, “ Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found.” Smiter, 331 Wis.2d 431, ¶ 16."

"Here, it was reasonable for Kinservik to believe that further evidence related to Billips' OWI arrest might be found in the vehicle. We agree with the State that this would include alcohol or any other substance that would contribute to the impairment of the driver.FN3 At the time of the search, Kinservik had yet to remove the plastic bag with liquid on top of it. Further, when he entered the vehicle, Kinservik testified: “I found what I know to be an end of a marijuana cigar, a blunt, that was in plain view when I entered the vehicle.” FN4 This additional discovery further supports the reasonableness of the search of Billips' vehicle, including the purse in the back seat. See Gant, 129 S.Ct. at 1719 (citing New York v. Belton, 453 U.S. 454 (1981) and Thornton v. United States, 541 U.S. 615 (2004), in which the defendants were arrested for drug offenses, as cases in which “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein”). Under Gant, Kinservik could lawfully search both the vehicle and the purse for further evidence related to OWI."
 

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DUI Law - Underage Consumption Can't Be Based On Cop Sniff

This case comes from NCDD Member Steven Hernandez, and it is a great one! In State of New Jersey v. Koch, Not Reported in A.3d, 2011 WL 4434949 (N.J.Super.A.D.), the defendant was convicted in the Municipal Court of Mansfield of underage consumption of alcohol. Koch, an eighteen-year-old high school student, went to a party with his nineteen-year-old girlfriend Ashley. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no MirandaFN2 warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

According to DeWitt, just before he sniffed Koch, the young man said spontaneously, “I only had one.” He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a “sober” driver. No summonses were issued at that time.

Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, “the operator of the [Pontiac] when I first arrived was not Zeb Koch.” DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because “Ashley Perch was only 17 years old and was not allowed to drive after midnight.”

Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.

Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.

After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.

The defense attempted to introduce into evidence as Exhibit D–5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it was a part of the record on appeal. One of the issues raised dealt with the admissibility of the video. The appeals court viewed the video. The video showed that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.

Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge. The defendant was convicted of the charge in the municipal court, and the conviction was affirmed in the trial court.

On appeal, the court held that the video was erroneously excluded:

"After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D–5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver."

The appellate court also found that the defendant was in custody, and that the 'sniff' of his breath should have been preceded by Miranda warnings:

"The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look “not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 1689–90, 64 L. Ed.2d 297, 307–08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S.Ct. at 1690, 64 L. Ed.2d at 308."

Finally, the court found that the smell of defendant's breath was insufficient to prove the charge of unlawful consumption as a matter of law:
"Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D–5, which was erroneously excluded. The conviction cannot stand."

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DUI Law - Kansas Says Brights Stop is Illegal

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In State of Kansas v. Peach, Slip Copy, 2011 WL 4440184 (Table) (Kan.App.), the driver passed a cop car parked on the side of the road. The police vehicle may have had its headlights on or just the parking lights. The defendant did not dim his brights as he passed, so the police officer stopped the defendant. The trial court found the stop illegal:

"The district court reasoned that the statute Hendricks asserted Peach violated requires that a driver dim his or her high-beam headlights when approaching “an oncoming vehicle within 500 feet....” K.S.A. 8–1725(a). (Emphasis added.) On the undisputed evidence, Hendricks' police cruiser was parked on the side of the road. It was stationary. Accordingly, the district court concluded it could not have been an oncoming vehicle within the meaning of the statute, and Peach, therefore, had no obligation to dim his headlights.

The appellate court affirmed:

In construing statutory provisions, the appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). It is not the courts' business or function to add to or take away from the language of a statute. And the courts should not impose some meaning on a statute beyond what the words themselves convey through their common and usual definitions. * * * *

The common meaning of “oncoming” entails movement forward. Webster's Third New International Dictionary Unabridged 1575 (1966) (Oncoming means “moving forward upon one.”); Oxford American Desk Dictionary and Thesaurus 575 (2d ed. 2001) (Oncoming means “approaching from the front” and may be considered synonymous with “advancing” or “arriving.”); The American Heritage College Dictionary 971 (4th ed. 2004) (Oncoming means “coming nearer [or] approaching.”). An oncoming army is one that is advancing rather than bivouacked. The same may be said of cars. Hendricks' police cruiser was not “oncoming” when Peach drove by.

The State also tried to advance a good-faith exception, which was also rejected:

"In Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 638–39, 176 P.3d 938 (2008), the court held that “an officer's mistake of law alone can render a traffic stop violative of the Fourth Amendment....” The court cited cases from the United States Court of Appeals for the Tenth Circuit and other federal authority supporting that principle. While the holding in Martin is not stated as rule without exception or to be invariably applied, the court certainly recognized a law enforcement officer's misunderstanding of the correct construction of a statute upon which he or she relied in making a stop and in seizing evidence would permit a formidable and likely successful Fourth Amendment challenge to those actions."

Editor's Note: Yes, this case is a real 'Peach' for the defense!

DUI Laws - Maryland Bars Tests Where Analyst Doesnt Testify

In the upcoming months, SCOTUS will be deciding whether the Confrontation Clause is violated when a profile of DNA is developed from semen left on a victim by a non-testifying analyst is then used by a testifying analyst who offers the opinion that there is a 'match' with the defendant. This case is known as Williams v. Illinois.

In Derr v. State of Maryland, --- A.3d ----, 2011 WL 4483937 (Md.), the same factual issue occurred. A person was sexually assaulted in 1985 and swabs were obtained, which contained semen. Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence. A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). Dr. Donovan did not testify at trial.

In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists (who also did not testify at trial) and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists' results, Dr. Luttman determined that the reference sample matched Derr's profile in CODIS and so testified. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team's analysis, with no indication that she observed the “bench work” ^FN5 at the time it was performed by her team.

The appeals court stated as follows:

"In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause."

In concluding that the Confrontation Clause was violated, the court stated:

"When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. This is because “the prosecution may not introduce such [evidence] without offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2709, 180 L.Ed.2d at 615. In the case of DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713–17, 180 L.Ed.2d at 619–24.

"We reach this conclusion for several reasons. First, the DNA profile and report are made for the primary purpose of establishing facts relevant to a later prosecution, and an objective analyst would understand that the statements will be used in a later trial. Stated differently, the analyst who generated the report must have known that the purpose of the testing was ultimately to establish the perpetrator's identity through DNA evidence. Second, the testing results, and the resulting DNA profile, can be considered an affidavit because they are the functional equivalent of in-court testimony, offered to establish prima facie evidence of guilt, which constitutes formalized testimonial material. Third, the statements produced by DNA testing are testimony under Crawford because the statements are solemn declarations made to prove a fact, namely the identification of the sample and possible match. Finally, the analyst who performs the DNA analysis is a witness for the purpose of the Confrontation Clause because the DNA profile created is a representation “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2714, 180 L.Ed.2d at 621. Therefore, the DNA profiles created by lab analysts, the reports they produce, and the conclusions or opinions they form contain testimonial statements that are subject to the requirements of the Confrontation Clause.^FN12"

The court also discussed the claim that Rule 703 (the same as FRE 703) should allow such evidence to be admitted:

"In evaluating a Confrontation Clause claim of this sort, involving surrogate testimony and scientific testing, we must address the continued validity and application of Md. Rule 5–703. We shall hold that, because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5–703 offends the Confrontation Clause, such testimony will not be admissible. As the United States Supreme Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ “ Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion. In such a case, Md. Rule 5–703, as applied, would not appear to offend the Confrontation Clause.

Thus, the defendant's judgment was reversed.

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DUI Laws - Making Prisoner Wear Jail Attire Illegal During Trial

Some of us have clients who remain in custody while they are being tried. When that happens, keep in mind that it is unconstitutional to force a man (or woman) to trial while attired in prison garb. In Leslie Smith v. Commonwealth of Kentucky, Not Reported in S.W.3d, 2011 WL 4407486 (Ky.App.), the defendant was brought to trial for first-degree promoting contraband for allegedly possessing marijuana while confined in the Green River Correctional Complex, and one count of being a first-degree persistent felony offender. A bifurcated jury trial was conducted on November 17, 2009. During the entirety of the jury trial, Smith wore prison-issued khaki pants and a khaki shirt. The khaki shirt included a white label, sewn on the left side of the shirt, which contained Smith's name and inmate number. At the conclusion of the trial's first phase, the jury found Smith guilty of one count of first-degree promoting contraband.


In Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the United States Supreme Court recognized the inherent prejudice suffered by a defendant who is forced to appear before a jury in distinctive prison garments. The Court held that it is reversible error if, over a defense objection, the defendant is compelled to appear in jail clothing before a jury. Estelle, 425 U.S. at 512–13. Kentucky has likewise acknowledged that requiring a defendant to appear in front of a jury in identifiable jail attire constitutes reversible error provided the defendant properly objects. Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (1976). Estelle and Scrivener clearly hold, however, that a defendant's failure to object “to being tried in prison attire, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at 512–13; Scrivener, 539 S.W.2d at 292.

On appeal, the court stated as follows:

"In the case sub judice, the record is clear that Smith did not object to wearing prison-issued clothing either before or during the trial. Thus, Smith's claim of error does not even rise to the level of reversible error, much less palpable error. Additionally, Smith committed the offense for which he was being tried while he was incarcerated. During the first five minutes of voir dire, the Commonwealth advised the jury that this case was about Smith possessing marijuana while confined in prison. Consequently, the jury knew from the trial's commencement that Smith was currently, or at least had recently been, incarcerated. Further, while testifying in his defense, Smith admitted he was a convicted felon currently confined in the Green River Correctional Complex. “No prejudice can result from seeing that which is already known.” Estelle, 425 U.S. at 507 (quoting United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir.1973)). Therefore, we are unable to conclude that there is a substantial probability that the result would have been different if Smith did not appear before the jury in prison attire. Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky.App.2007). Nor can we conclude that Smith's appearance before the jury in prison-issued clothing so seriously affected the fairness or integrity of Smith's trial as to be “shocking or jurisprudentially intolerable” thereby warranting reversal.

A second additional issue was raised on appeal. During sentencing, the state introduced evidence of priors where the charges had been dismissed or the convictions set aside:

"[I]n Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky.1996), our Supreme Court recognized that while KRS 532.055(2)(a) authorizes the Commonwealth to introduce the defendant's prior convictions, it may not introduce prior charges that were ultimately dismissed. “Thus, it is well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside.” Cook v. Commonwealth, 129 S.W.3d 351, 364 (Ky.2004); see also Cuzick, 276 S.W.3d at 264 (recognizing that a charging document may not be admissible during the penalty phase because it may contain “information inconsistent with the final judgment”).
Even though it was error, the court found no substantial prejudice and affirmed the 15 year enhanced sentence.

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Reference Manual on Scientific Evidence: Third Edition Available

Below is a link to a free download to the Reference Manual on Scientific Evidence: Third Edition http://www.nap.edu/catalog.php?record_id=13163 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!

DUI Laws - Kentucky Reverses Drug Conviction Based On Confrontation Violation

This case comes to DAD thanks to the watchful eyes of Founding Member William "Bubba" Head from Georgia. In Whittle v. COMMONWEALTH of Kentucky, --- S.W.3d ----, 2011 WL 4431158 (Ky.), the defendant was charged with possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender. Prior to trial, a juror indicated he was friends with the trooper in the case. In response to how his friendship with a state trooper would affect his participation on the jury, the juror initially stated that he believed he would remain impartial. However, when asked immediately thereafter whether there was “a possibility bias might creep in,” he agreed there was that possibility. Appellant, to no surprise, emphasizes the latter response: the juror's admission that there was a “possibility” that through his friendship with the state trooper, bias in favor of the prosecution could “creep in” to his adjudication. The trial court refused to strike the juror for cause, and on appeal that ruling was affirmed. "A juror must only be struck for cause if there is a probability he will be biased in favor of one party over the other. Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958). Appellant admits that friendship with a law enforcement official does not create inherent bias in a juror toward the prosecution. See Penman v. Commonwealth, 194 S.W.3d 237, 252–53 (Ky.2006), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010). As “even law enforcement personnel are not automatically excluded from the jury panel,” it would be absurd to automatically disqualify their friends. Id. at 252."

At trial, the lab analyst failed to appear, so a supervisor read the lab report into evidence. On appeal, the court found that the admission of the evidence that the powder was cocaine violated the Confrontation Clause, despite the fact that a supervisor was there to be cross-examined. In responding to a variety of State arguments attempting to distinguish the SCOTUS cases, the court stated:

"Despite the similarities between the issue presented here and that resolved by the U.S. Supreme Court in Melendez–Diaz, the Commonwealth ventures three arguments for why its authority does not mandate reversal here: It should be distinguished; should not apply retroactively; and any finding of error it mandates here is harmless. Presumably, the Commonwealth would make the same arguments as to Bullcoming.

The best-argument is that Melendez–Diaz should be distinguished from the case at hand. The Commonwealth attempts to distinguish the “certificates of analysis” entered into evidence in Melendez–Diaz because they, unlike the lab report here, were unaccompanied by live witness testimony. It claims that because Terry Comstock testified in court to the contents of this report, and Appellant was free to cross-examine him, his Confrontation Clause rights were satisfied.

This distinction would carry water if Comstock's testimony about testing was the only evidence admitted, and not the report itself. But the report was admitted into evidence. Appellant's opportunity to cross-examine Comstock does not satisfy any potential right to be confronted with the author of the report. See Crawford, 541 U.S. at 51 (noting that in type of English prosecution Confrontation Clause was designed to prevent, “Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court”). Even if Appellant could hypothetically demonstrate that Comstock was ignorant about chemistry or a complete liar, he still could not confront the author of the report."

Thus, the cocaine related convictions were overturned. Because there was no attempt to confront anyone on the marijuana charge (i.e. it appears to have been admitted without a contest) that conviction was affirmed.

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