Americas Top DUI DWI Lawyers Attorneys™

Erase DUI convictions after five years, says state legislator | 11alive.com

2012-01-29T19:33:00.001-06:00

Erase DUI convictions after five years, says state legislator 11alive.com Finally, a possible end to the MADDness as a legislator realizes that the modern-day lynching of people who make one mistake in their lives must end. I want all of those who oppose this bill to send in their names and addresses, so others may dig up your dirt and hopefully expose you for a lifetime of ridicule and shame as well. 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!

Kane County to step up drunken-driving crackdown on Super Bowl Sunday

2012-01-29T11:29:00.000-06:00

Kane County to step up drunken-driving crackdown on Super Bowl Sunday It is disgusting what politicians like Kane County States Attorney Joe McMahon are willing to do once in power. Why doesn't he step up and agree with the Chicago Tribune and Sun-Times, and declare us "The Land of Lincoln, Not the Land of Vampires" 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 - Illinois Dismisses Illegal DUI Stop from Anonymous Call

2012-01-23T13:41:00.000-06:00

Congratulations goes out to Earl Vergara, NCDD member and Illinois attorney who handled this matter on appeal. In People of Illinois v. Smulik, --- N.E.2d ----, 2012 IL App (2d) 110110, 2012 WL 34367 (Ill.App. 2 Dist.) the police received a call of "a possible DUI with complainant following." The police located the vehicle that fit the description parked in a gas station. The police pulled behind the vehicle, but the officer believed she did not block in the defendant's car. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka. The trial court found that a seizure had nevertheless occurred, and that the seizure was unsupported by reasonable suspicion.

The appellate court affirmed the motion to quash arrest, writing:

“A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority.” Village of Mundelein v. Minx, 352 Ill.App.3d 216, 219 (2004).

In City of Highland Park v. Lee, 291 Ill.App.3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill.App.3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md.Ct.Spec.App.1998) (“Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.”). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill.App.3d at 220 (“when [the defendant] noticed the emergency lights, he submitted to them and did not leave”).

Applying the above law to the facts of this case, the court stated:

"At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop. We observed:

“An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). [Citation.] A stop may also be based on information received from members of the public. [Citation.] However, the informant's tip must bear “ ‘some indicia of reliability’ “ in order to justify the stop. [Citation.] ‘[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge.’ [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. [Citation.]

"The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. [Citation.] Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. [Citation.] This court has observed that ‘[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person.’ [Citation.] There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered ‘truly anonymous,’ even if the caller does not specifically identify himself or herself. [Citation.] The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. [Citations.]” Linley, 388 Ill.App.3d at 750–51.

Concluding that the stop was illegal, the court concluded:

"Here the stop was based on a tip received from an informant .FN2 The tip was conveyed to Johnson by a dispatcher; it does not appear that Johnson spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind defendant's vehicle. Accordingly, only the information relayed by the dispatcher to Johnson is germane to the question of whether the stop was supported by a reasonable suspicion that defendant had committed or was about to commit a crime. What Johnson knew based on the dispatch was that the informant had observed an individual drinking at an establishment called Redstone. The informant thought that the subject of the tip was “drunk,” and she was “concerned about him driving.” The subject was driving a silver Jeep, and the informant, who was following him, advised police of the vehicle's location and license plate number. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short."

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!

OWI Laws: Wisconsin Conviction For Operation Improper

2012-01-23T13:38:00.000-06:00

Today's DAD comes to us thanks to the watchful eyes of Wisconsin Attorney Tracey Wood. The case itself was handled by NCDD member Lauren Stuckert of Regent Andrew Mishlove's office. In the case, the jury convicted the driver of OWI. The officer had observed a white van parked in the bar’s parking lot and a man, later identified as the defendant Herbst, seated in the driver’s seat slumped over the steering wheel, with the engine running. Over objection, the prosecutor was allowed to argue to the jury that even touching the steering wheel constituted 'operation'.

On appeal, the court found that the evidence was sufficient to convict, but that the argument denied the defendant a fair trial. Because prosecutor's often attempt to 'bend' the law's definitions into thier favor, asnd then on appeal argue that the errors were harmless, or cured by a written jury instruction, the opinion is incorporated verbatim:

"We acknowledge that, in general, counsel has wide latitude in closing argument and that it is within the trial court’s sound discretion to control the content of closing arguments. See State v. Lenarchick, 74 Wis. 2d 425, 457, 247 N.W.2d 80 (1976); State v. Cockrell, 2007 WI App 217, ¶41, 306 Wis. 2d 52, 741 N.W.2d 267. However, “[c]ounsel is not permitted to make statements of the law which are of dubious correctness.” State v. Bougneit, 97 Wis. 2d 687, 699-700, 294 N.W.2d 675 (Ct. App. 1980). Where counsel’s inaccurate statements likely affected the jury’s verdict, reversal is appropriate where the trial court erroneously exercised its discretion. See Lenarchick, 74 Wis. 2d at 457-58.

"We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel. If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat. § 347.63(3)(b), that is a correct statement of the law. But that is not how the City framed its discussion of the meaning of “operate.” The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.

"Moreover, in overruling defense counsel’s objection to the City’s inaccurate statement of the law regarding what constitutes “operate,” the trial court appeared to defer to the jury’s understanding of whether simply having hands on a steering wheel is “operating” within the meaning of the statute by stating: “This is final—this is argument, counsel. She’s allowed that latitude. I will allow her to do that. These people are intelligent people. They can make that decision. That’s their job.” (Emphasis added.) It is not clear what the court intended by responding to defense counsel’s objection in this manner. However, it is possible that a reasonable juror, listening to the City’s erroneous statement of the law, defense counsel’s objection, and the court’s response, would be confused as to a juror’s proper role in deciding what constitutes “operate” and whether simple placement of hands on a steering wheel is manipulating or activating the controls of a motor vehicle.

"Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction. The court did so here. However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition. The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.” That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel. The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”

Due to the misstatements of law by the prosecutor, coupled with the judge's apparent tacit approval of it by failing to intervene and sustain the objection, a new trial was ordered.

Editor's Note: Kudos to the defense attorney for timely objecting, thus preserving the error for appeal!

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- Florida Says Drug Stop is Legal

2012-01-13T14:53:00.002-06:00

This case comes to DAD from Fort Pierce and Key West Florida Attorney Mike Kessler. (Notice: Beginning in 2012, if you send DAD an appellate decision and your info, if DAD uses it here you will get credit and a link to your site). In May v. State of Florida, the appeals court held that the officer had reasonable suspicion to stop a vehicle where the officer saw a car leave a pharmacy suspected of prescription fraud, followed the car, and saw the occupants pass around a prescription bottle as if each was removing some of the items in the bottle. The police claimed they had observed a brake light violation, but the State stipulated that a stop for such an incident alone would have been invalid. The State then argued the stop was valid based upon the suspected illegal pill-sharing:

"[A]t the suppression hearing the detective testified that from her training and experience, a lot of narcotics violations by hand-to-hand transactions or “sharing of pills” typically occur in the parking lots of pain clinics. She also testified that the pain clinic under investigation was a “cash only” operation, which is the situation with a majority of pain clinics. She further testified that it is common to observe people leaving pain clinics engage in conduct she referred to as “sharing of pills,” in which people “divvy up the proceeds of what they received from the doctor.” She explained that often the drugs obtained by the patient leaving the pain clinic are given to the driver of the vehicle as payment for driving the patient to the clinic. Frequently, the situation is a “sponsorship” arrangement whereby a person in the vehicle supplies the cash to purchase the drugs. In return, for supplying the cash, the sponsor is given some of the drugs. The detective also testified: “But the fact that the pill bottle goes around was suspicious, especially working diversion cases and these types of crimes, people don't share their prescription bottle.”

Even though an objective view of the facts might appear to show only wholly innocent conduct, the court gave great weight to the officer's experience in findsing that the stop was still valid:

"As we observed in Santiago v. State, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006),

Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week, the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.”

(quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)). In Santiago we went on to say that it was not necessary that an officer actually observe drugs change hands to establish reasonable suspicion. Instead, an officer may rely on other circumstances, such as “whether the officer can see either drugs or money being transferred, the officer's narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site.” Id. at 1279.

"A police officer may stop a person for the purpose of investigating possible criminal behavior if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Davis, 849 So. 2d 398 (Fla. 4th DCA 2003). “In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So. 2d 185 (Fla. 1993). “A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge and experience.” Davis, 849 So. 2d at 400 (citing Stevens, 354 So. 2d at 1247 (emphasis added).⁴

Continuing, the court wrote:

"Our prior statements in Benemerito, Santiago, and Davis lead us to conclude that in determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer's perspective and the officer's training and experience.⁵ What may appear to be innocent conduct to the average citizen, who is unaware of how drug crimes are committed, may reasonably appear suspicious to an officer. In this case, the officer testified about a pattern of illegal conduct (“sharing of pills”) which the officer learned through observation and training occurs with regularity at or near cash-only pain clinics. “Sharing of pills” is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal “sharing of pills.” “Sharing of pills” behavior is a very different illegal drug activity than the hand-to-hand sales transactions involved in Benemerito and Santiago.⁶ As we said in Santiago, observation of drugs is not necessary in the context of hand-to-hand sales of drugs. In the context of “sharing of pills,” it seems to us that observation of the drugs themselves is likewise not necessary and observation of passing a prescription pill bottle is sufficient."

The court thus affirmed the denial of the motion to suppress.

Editor's note: although 'deference to the police officer is found nowhere in the US Constitution, the presumption of innocence and the requirement of a search warrant are explicitly written therein.

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!

DWI Law- Cheap DWI Lawyer's Client Allowed to Vacate Jail Sentence and Plea

2012-01-06T12:24:00.000-06:00

What happens when a client comes to you after he has already hired another lawyer, and has already pleaded guilty and been sentenced? Most attorneys will turn that person away, and for good reasons. However, there may be another avenue available. In People v. Rivera, --- N.Y.S.2d ----, 2012 WL 17681 (N.Y.A.D. 1 Dept.), 2012 N.Y. Slip Op. 00043, the defendant hired a second attorney to vacate the plea, and the trial court agreed. On appeal, the court affirmed, writing:

"The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404 [1995] ).

"Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.

"The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case."

The appeals court unanimously affirmed the motion to vacate the plea.

Editor's note: This case should serve as a warning to cheap-priced 'dumptruck' lawyers that fail to perform an adequate investigation prior to disposing of a case, that such conduct might fall below the standards of practice in their community.

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!

DWI Law - Woman Convicted of DWI Without Alcotest Loses 'High Heels' Defense

2012-01-05T14:25:00.000-06:00

As reported in the New Jersey Law Journal:

With all the attention given to the debut of the high-tech Alcotest, it's easy to forget that drunken driving convictions can still be based on old-fashioned field sobriety tests.

That means a woman was justly convicted, without use of Alcotest results, based on unstable driving and deficient motor skills at a traffic stop that she blamed on a health disorder and on wearing high-heel shoes, the Appellate Division ruled Tuesday in State v. Salkewicz, A-0224-10.

"We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance in the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt," Judges Clarkson Fisher Jr. and Linda Baxter said in affirming the conviction.

Barbara Salkewicz was stopped on Oct. 3, 2008, in Manchester Township by Patrolman Adam Emmons, who had observed her repeatedly crossing the center line on Route 70 and driving erratically. She admitted to having had two glasses of wine.

Emmons had her perform sobriety tests, which she failed. She was unable to walk a straight line heel to toe or to stand with her feet together and raise one foot off the ground as directed. Taken to a police station, Salkewicz agreed to an Alcotest, the results of which showed a blood-alcohol content of 0.15 percent.

At her Manchester Township trial, Salkewicz's attorney, Evan Levow, objected to the admission of the Alcotest results because the administrator, Sgt. James Delane, failed to first observe her for a minimum of 20 minutes.

Municipal Court Judge Phillip Miller allowed the results to be admitted. Salkewicz entered a guilty plea conditioned on preserving her right to appeal. Miller agreed to stay the sentence.

Ocean County Superior Court Judge Ronald Hoffman remanded the case, saying Miller should have considered whether he could have convicted Salkewicz on Emmons' observations and Salkewicz's difficulties with the sobriety tests.

At the second trial, the municipal prosecutor, Valter Must, said he could no longer rely on the Alcotest results since he could not guarantee that Delane waited the required 20 minutes.

By then, Manchester had a new judge, Daniel Sahin, who based his decision to convict Salkewicz on a videotape of the traffic stop.

Levow had argued that Salkewicz was unsteady because she was wearing high heels and suffered from Graves disease, an autoimmune disorder, and that she momentarily drove erratically because she was reaching down to pick up something she had dropped.

Salkewicz again appealed and Hoffman upheld the conviction. Must had no authority to suppress the Alcotest results but the videotape showed ample evidence that Salkewicz was under the influence of alcohol, he said.

Hoffman said there was no way to tell whether high heels were to blame, since Salkewicz was wearing long slacks that went all the way to the ground. He noted that a state police expert's report did not state that said Graves disease could cause a person to be unsteady.

On appeal, Fisher and Baxter said that Must was within his rights not to introduce the Alcotest results at the second trial, and whether they were admitted or not made no difference.

"Here, the evidence presented before the municipal court was more than sufficient to establish that defendant was under the influence of alcohol while operating her vehicle."

Fisher and Baxter acknowledged that Salkewicz claimed that she had dropped something and that she couldn't do the tests well because of her high heels and her Graves disease, but they declined to use that to overturn the conviction.

"Although a defendant may proffer an innocent explanation for his or her conduct, that explanation will not exclude a finding of guilt when the evidence is sufficient to leave the fact-finder firmly convinced that the defendant is guilty of the offense charged," they said.

Levow says he will ask the panel to reconsider its decision because it did not have the benefit of being able to review the videotape.

"It's bizarre," Levow, of Levow and Associates in Cherry Hill, says of the ruling. "I'm going to ask for reconsideration because they didn't have all the evidence. They gave no weight to the fact that she has a neurological condition and was wearing high heels."

Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling demonstrates that drunken drivers can still be convicted based on visual evidence. "It's part of the statute," he says. "People forget about that."

--- A.3d ----, 2012 WL 17834 (N.J.Super.A.D.)

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!

DWI Appeal - South Dakota Grants New Trial When Attorney Ineffective

2012-01-04T16:00:00.000-06:00

In Engesser v. Dooley, --- F.Supp.2d ----, 2011 WL 4625986 (D.S.D.) the defendant was convicted of vehicular homicide. His appeal was denied. His first writ for habeas corpus was denied. His habeas relief in federal court was denied, and then the denial was affirmed on appeal. His second writ of habeas corpus was granted, but then reversed on appeal. His third state writ was denied. He then filed his second federal writ for habeas relief, and the district court in the instant case granted the petition.

The factual predicate of defendant's claim for a successive filing of a federal habeas petition (that he had newly discovered evidence that was not available during the previous filings), was made through the testimony of a new witness, who testified at the writ hearing that the defendant was not driving vehicle at time of crash. This witness, who testified he saw a woman driving vehicle just minutes before fatal crash, had not been contacted about the case until a few weeks prior to federal habeas evidentiary hearing, and his name was not listed as witness to crash or events preceding it.

The second predicate (i.e. a constitutional violation occurred during his case) was that. but for his attorney's ineffective assistance in failing to investigate and call two other eyewitnesses as witnesses to the fatal car accident at defendant's criminal trial for vehicular homicide and vehicular battery, no reasonable factfinder would have found defendant guilty; if the trial attorney had interviewed eyewitnesses and called them as witnesses, their testimony would have directly contradicted state trooper's assertion that defendant was driver of vehicle in accident, and only state court to have considered eyewitnesses' testimony and to weigh testimony against evidence presented at trial found their testimony would have changed the outcome of the trial.

Because of the above, the district court found that sufficient evidence established a violation and granted the petition.

Editor's note: this case represents a wonderful blueprint for how to prove up a successive petition for federal habeas relief. It is also a valuable lesson for attorneys as to their obligation to interview witnesses prior to trial and to call witnesses at trial when necessary.

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 Appeal - Nevada Says Retrograde Extrapolation Evidence Too Dangerous for Trial

2012-01-03T15:31:00.000-06:00

In State of Nevada v. Eighth Judicial District Court, et. al., --- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84 the trial court held that the probative value of retrograde extrapolation that was based on single sample of blood taken more than two hours after a collision was substantially outweighed by the danger of unfair prejudice, and thus precluded its admission at trial.

According to the indictment, the defendant (Armstrong) was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor. After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol.

"The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002)."

The State then filed a petition for a writ of mandamus against the judge, seeking to force the judge to admit the retrograde evidence. On appeal, the Supreme Court of Nevada affirmed, finding that even though retrograde extrapolation evidence was relevant, there was a danger of unfair prejudice.

"Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:

(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.

46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

The Court wrote:

"We agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced."

"[T]he State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.

Concluding, the Court stated:

"Although several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.

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 - Illinois Sanctions Loss of Videotape

2011-12-30T12:24:00.001-06:00

In People v. Kladis, 2011 IL 110920 (decided December 30, 2011) the Illinois Supreme Court affirmed a trial court ruling, barring any evidence that was contained on a videotape that was negligently erased after it had been requested by defense counsel. The facts established that within 5 days after the defendant had been arrested for DUI (and 25 days prior to the first court date) the defense filed and hand delivered a discovery request for inter alia, any and all videotapes of the stop and arrest of the defendant.

On the first court date, the State failed to produce the tape. After confirming with the arresting officer that the incident was videotaped, the matter was continued so that the state could obtain a copy of the video for the defense. At the next court date, it was learned that the police department, pursuant to policy, had automatically purged the tape (25 days after the request was handed to the prosecutor and hours prior to the 1st court date). The trial court barred introduction of any evidence that would have been on the tape, including the driving of the car, the field sobriety tests, and the manner in which the defendant exited the vehicle.

The Supreme Court first dealt with the State's argument that the video was not 'discoverable' because discovery for misdemeanors is extremely limited, and videotapes were not included on the list of things that a defendant can seek in a misdemeanor DUI, based on an old 1974 decision on discovery. The Supreme Court in the instant case stated that the 1974 decision was merely a review of the status of custom and practice at that time, and was not intended to remain static, nor was it intended to "not take into account the fundamental changes which have occurred in law or society since that ruling."

"In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties." The Suprem Court therefore held that videotapes were discoverable.

In terms of the propriety of the sanctions incurred for failing to comply with discovery, the court found the sanctions proportionate to the violation. "Here, the court properly exercised its discretion in choosing from the spectrum of available options and narrowly tailoring its sanction to bar the State from introducing testimony regarding what was contained in the video recording."

Congratulations go out to Attorney Ed Maloney, partner to new NCDD member Thomas Moran.

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 - Tennessee Limits Power of Police to Arrest Outside Municipality

2011-12-29T11:38:00.000-06:00

In State of Tennessee v. Cox, Slip Copy, 2011 WL 4716284 (Tenn.Crim.App.) the appellate court affirmed a trial court ruling, holding that a Tennessee Valley Authority police officer had no jurisdiction to stop a vehicle outside of his jurisdiction. The state tied to argue that, like other police officers, the TVA police still have police power throughout the State. In distinguishing, the court relied on the enabling statute which provides that a TVA peace officer:

“shall have and exercise ... the power to make arrests for public offenses ... committed upon, about, or against TVA property or on public roads or rights-of-way passing through or over such property, and, while in pursuit of a person fleeing after committing such an offense, may pursue the person and make arrest anywhere in the state.... Notwithstanding any other provision of law, the authorities, responsibilities and liabilities of such officers shall be limited as provided for under this section.” (emphasis supplied)

The State then tried to use the 'citizen arrest' statute as an alternative basis for the stop. Unfortunately, the record made in the trial court by the prosecutor was poor:

"The State contends that even if Tennessee Code Annotated section 39–3–120 is not applicable, Officer Smith had the authority to make the stop pursuant to Tennessee Code Annotated section 40–7–109, the “citizen's arrest” statute. This claim is likewise unavailing. Tennessee Code Annotated section 40–7–109 provides that in limited situations, a private citizen may be authorized to make an arrest. However, as the defendant notes, the record provided on appeal does not reflect Officer Smith's reason for stopping the defendant, leaving us unable to determine whether there was a legitimate basis for the stop. Therefore, “this court must presume that the trial court's rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App.1991)

Editor's Note: This case is a good example of what a defendant should argue if the State tries to seek an alternate ground on appeal for reversal - keep in mind that most prosecutors at the trial level do not think about 'making a record' before filing a knee-jerk appeal. 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!

DWI Law - New York Says Falure To Cross on Field Tests Not Ineffective

2011-12-28T12:25:00.000-06:00

In People of the State of New York v. Biro, --- N.Y.S.2d ----, 2011 WL 2279160 (N.Y.A.D. 4 Dept.), 2011 N.Y. Slip Op. 04856 the defendant was convicted of DWI and he claimed that his lawyer was ineffective. The lawyer did not challenge the legality of the stop, probable cause for the arrest, nor did he cross-examine the arresting officers on the field tests or chemical tests. The appellate court rejected that proposition:

"Although defense counsel did not cross-examine the officers concerning administration of the field and chemical sobriety tests, defendant fails to identify a single error in those tests with respect to which defense counsel should have inquired. Moreover, the record establishes that defense counsel's strategy was to challenge the People's allegation that defendant was operating the vehicle in question, an element of the charges against him. In accordance with that strategy, defense counsel elicited testimony during cross-examination of the officers that the vehicle was stopped and the engine was off when they approached it, that the vehicle appeared to be disabled and that the vehicle may have been operated by defendant's father, who was sitting in the passenger seat thereof."

Very little in regards to the facts was recited in the opinion, other than the fact that the vehicle was parked partially in the traffic lane of a roadway, thereby creating a traffic hazard. Additionally, the record also purportedly established that the police had probable cause to arrest defendant based on, inter alia, the odor of alcohol and the open container of alcohol in the vehicle, defendant's admission that he had been drinking and his failure to pass field sobriety tests.

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 - Georgia Says Prosecutors Mistake Not Double Jeopardy Bar to Retrial

2011-12-28T12:23:00.000-06:00

In Williams v. State, --- S.E.2d ----, 2011 WL 3925582 (Ga.App.) the prosecutor erroneously stated in closing arguments that the defendant had consumed margaritas, when in fact the defendant had admitted consuming 2 1/2 beers. This error was not discovered by the defense until the jury began deliberating. The state offered to have a mistrial, but the defense simply wanted the videotape of the defendant replayed before the jury, where the defendant's true statement would appear. The judge refused to allow a reply of the video. Thereafter, the defense also moved for a mistrial, which was granted.

Prior to retrial, the defense then moved for a dismissal under double jeopardy (i.e. motion for plea in bar) claiming that the prosecutor goaded defendant into asking for a mistrial. On appeal, the law was discussed as follows:

"As an initial matter, to the extent that Williams subsequently consented to and joined in the State's motion for a mistrial, he could not later use the mistrial as the basis for a plea of double jeopardy. See Bellew v. State, 304 Ga.App. 529, 532(1), 697 S.E.2d 249 (2010). Notwithstanding Williams's contention that he was goaded into joining the mistrial motion, no basis for reversal has been shown. Where, as here, a mistrial is granted at the request of a criminal defendant, retrial is not prohibited on the basis of double jeopardy unless it is established that the State intended to goad the defendant into moving for a mistrial in order for the State to avoid a reversal due to prosecutorial or judicial error, or otherwise to obtain a more favorable chance of a guilty verdict on retrial."

Holding that the retrial was not prohibited by double jeopardy, the court wrote:

"The record in this case supports the trial court's finding that the prosecutor's mistake was unintentional and was not intended to goad Williams's counsel into moving for a mistrial. The record reflects that the prosecutor's mistake was neither blatant, deliberate, nor made in bad faith. No objection was raised at the time that the mistake was made. And when Williams's counsel later discovered and raised the issue, he likewise expressed a belief that the prosecutor's misstatement was “unintentional” and that “the prosecution didn't make th[e] error to goad [the defense] into moving to mistrial[.]” The evidence thus reflects that “[a]lthough the prosecutor was mistaken or confused as to the [evidence regarding the type of alcoholic beverage that Williams consumed], the record shows the prosecutor's mistake[ ][was] made in good faith and reveals the state's intention was not to provoke mistrial.” (Citation and punctuation omitted.) State v. Oliver, 188 Ga.App. 47, 51(3), 372 S.E.2d 256 (1988). See also Mathis v. State, 276 Ga.App. 587, 588, 623 S.E.2d 674 (2005) (concluding that retrial was not barred since the prosecutor's improper comments during closing argument were not made with an objective to abort the trial and subvert double jeopardy protections).

"Moreover, “the prosecution had already built its case against the defendant and had no reason to abort the first trial by forcing a mistrial.” (Citation and punctuation omitted.) Oliver, supra, 188 Ga.App. at 52(3), 372 S.E.2d 256. Regardless of the type of alcoholic beverage that Williams had consumed, the evidence was sufficient to support the charged offenses. See OCGA §§ 40–6–181(b)(5), 40–6–253(b)(1), 40–6–391(a)(1) and (5). Under these circumstances, the prosecutor's mistaken argument appears to have been made in a zealous attempt to obtain a conviction, rather than to force a mistrial. See Roscoe v. State, 286 Ga. 325, 327, 687 S.E.2d 455 (2009) (affirming the denial of the defendant's plea in bar since the evidence established that the prosecutor's erroneous opening statements were made while aggressively seeking a conviction, not a mistrial); State v. Traylor, 281 Ga. 730, 734, 642 S.E.2d 700 (2007) (concluding that defendant's retrial was not barred since there was no evidence to support a finding that the prosecutor's misconduct was intended to terminate the trial, rather than enhance the likelihood of conviction).

"Since the evidence supports the trial court's findings that the prosecutor's mistake did not rise to the level of intentional prosecutorial misconduct and was not intended to subvert double jeopardy protections, we affirm the denial of Williams's plea in bar.

Editor's Note: What I found odd was the fact that the video did not go back with the jury so they could play it during deliberations - a practice commonly done in Illinois (over defense objections). I would be interested in hering what other courts do with video during jury deliberations...
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!

DWI Law- Illegal Search Warrant Suppresses Blood Draw Says Texas

2011-12-28T12:20:00.000-06:00

In Crider v. State of Texas, --- S.W.3d ----, 2011 WL 5554806 (Tex.Crim.App.) the defendant appealed the denial of his motion to suppress the search warrant. He claimed that the warrant failed to establish that the warrant was "timely" and not "stale". The appellate court agreed, holding that:

"[T]he affidavit in this case is not sufficient to show probable cause because there could have been a twenty-five-hour gap between the time the officer first stopped appellant and the time he obtained a search warrant for blood."

In discussing the requirements for a search warrant, the court pointed to the law governing timeliness for the search warrant, otherwise referred to as the 'staleness doctrine":

"Probable cause is not determined by merely counting the number of days between the time of the facts relied upon and the warrant's issuance. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical considerations of every day life. The test is one of common sense."

"Affidavits are to be read “realistically and with common sense,” and reasonable inferences may be drawn from the facts and circumstances set out within the four corners of the affidavit.FN8 But there must be sufficient facts within the affidavit to support a probable-cause finding that the evidence is still available and in the same location. We agree that the “proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.” FN9 No hard-and-fast rule sets the outer limit of time between stopping an apparently intoxicated driver and the existence of probable cause that evidence of intoxication will still be found within that person's blood. The ultimate criteria in determining the evaporation of probable cause are not found in case law, but in reason and common sense. The hare and the tortoise do not disappear over the hill at the same speed. The likelihood that the evidence sought is still available and in the same place is a function, not just of the watch or the calendar, but of the particular variables in the case:

(1) the type of crime—short-term intoxication versus long-term criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a bank vault filled with deeds, a “meth lab,” or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience or secure operational base.”

Applying the above, the court then determined the likelihood that alcohol would still be found using a scientific analysis:

"Assuming that a suspect did not drink after being stopped by an officer, at least “some” evidence of alcoholic “intoxication” (defined as 0.08 BAC) should still be in his blood system four hours later because it takes at least four hours for the average person to eliminate 0.08 grams of alcohol (per one hundred milliliters of blood) at a rate of 0.02 grams of alcohol (per one hundred milliliters of blood) per hour. Put simply, it takes four hours of hourly 0.02 BAC decreases to make a BAC of 0.08 drop to zero.

The higher the level of intoxication at the time of the stop, the longer some evidence of alcoholic intoxication would remain in the blood. For example, if the average person's blood-alcohol level were twice the limit of legal intoxication, with a BAC of 0.16 at the time he were stopped, his level would be approximately 0.08 four hours later, and some level of alcohol would still be in his blood up to seven to eight hours later.FN14 But it would be exceedingly unlikely that a person who was tested some 24 hours after he ceased drinking would register any detectible level of alcohol in his blood. (This would correspond to an initial blood-alcohol content of 0.48, six times the legal limit and nearly lethal.)

The court also held that it must use the most extreme time periods when applying the stalenss doctrine:

"United States v. Button, 653 F.2d 319, 324–25 (8th Cir .1981) This case gave rise to the so-called “ Button Rule” of staleness:

"Generally when the courts are forced to make an assumption as to when transactions occurred “within” a given period, for purposes of determining probable cause, it must be assumed that the transactions took place in the most remote part of the given period.... The reason for this policy is obvious. If this were not the construction given to this phrase, stale information could be made to appear current by the mere use of “within” language. For example, if a dozen drug purchases were made in the first week of January and one wished to obtain a search warrant in the first week of March based solely on this information he would need only say that “within the last two months a dozen purchases were made”, rather than “a dozen purchases were made in the first week of January.”

Based upon all of the above, the appellate court held that the search warrant was defective, and remanded the case with directions.

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!

DWI Law - Texas Holds HGN Cannot Be Used to Prove Blood Alcohol Content

2011-12-28T12:17:00.000-06:00

In Jones v. State of Texas, Not Reported in S.W.3d, 2011 WL 5607832 (Tex.App.-Dallas), the defendant on appeal complained that the trial court erred when it allowed the police to correlate the results of an HGN test to a BAC of 'over 0.08'. Specifically, the appeals court wrote:

"The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769; Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). It is error to allow such testimony at trial. See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ “ was impermissible correlation of defendant's performance on HGN test to blood alcohol content); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees. Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues. Odom continued:

ODOM: A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point. So there is a total of six clues on this HGN or eye test. There are six clues. A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE: There are statistics that go along that you talked about?

ODOM: Yes, if they meet that decision point which in this case is four. If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE: Your Honor, I am going to object to that. That is improper. In Texas it is not recognized as being equivalent to any number. It would be on BAC. That is case law.

COURT: I think that is cross examination. Overruled."

The appeals court found that the admission was error. The appeals court then had to decide whether the error was harmless. The court reviewed the remaining testimony, noting that this remark was only made once out of 173 pages of testimony (who said length doesn't count?). The appeals court also concentrated in particular on the defendant's expert Dr. Lance Platt, summarizing his testimony as follows:

"After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test. Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing. His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas. According to Platt, there are three parts to an investigation for driving while intoxicated: vehicle in motion, personal contact, and sobriety testing. Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

"Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system. Platt also discussed the heel-to-toe walk and the one-legged stand tests overall. Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest. When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

"On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested. Platt testified without objection that, in his research, 91 .6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher. Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.” He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests. Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests."

The appeals court concluded that the error was harmless:

"Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury. The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages. The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment. The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening. The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station. Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night. After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial."

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 - Defendant Represents Self - Blows Easy Win

2011-12-28T12:15:00.000-06:00

Today's DAD should be copied and given to potential clients who try to 'save money' and represent themselves. In City of Olmstead Falls v. Buckwald Slip Copy, 2011 WL 6009591 (Ohio App. 8 Dist.), 2011 -Ohio- 6174 the defendant was found guilty of drunk driving while riding a bicycle. unfortunately, he represented himself. Buckwald pleaded no contest to driving under the influence, and the court sentenced him to ten days in jail, one-year driver's license suspension, and a $500 fine suspended. Apparently at some point he learned that he could have won his case with a good lawyer, and then filed an untimely motion to reconsider (another blunder by an untrained citizen). After losing that, he filed an untimely application to re-open, which could only be successful if he alleged incompetent counsel.

As the United States Supreme Court noted in Faretta v. California (1975), 422 U.S. 806, 834, n. 46, 95 S.Ct. 2525, “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ “ Oh well, better luck next time (and you know there will be). 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!

DWI Law - Minnesota OKs Stop From Stale Computer records

2011-12-28T12:13:00.000-06:00

In State of Minnesota v. Nelson, Not Reported in N.W.2d, 2011 WL 6015167 (Minn.App.) a police officer ran the plates of a vehicle and the computer reported the plates expired, even though the plates appeared to have valid and current tags. The cop stopped the car, and determined that the tags were valid, but that the records of the Department of Public safety were not current (by several days). During the stop Deputy Silgjord noticed indicia of intoxication and arrested appellant for driving while impaired. Appellant was charged with first-degree driving while impaired and first-degree driving while impaired (over .08). Appellant moved to suppress the evidence from the stop, arguing that the stop was unconstitutional. The district court upheld the stop and denied appellant's motion and this appeal followed.

In denying the appeal, the majority wrote:

"We recently held that a discrepancy between displayed license-plate tabs and information derived from an officer's onboard computer system constitutes an objectively reasonable basis to initiate an investigatory stop. State v. Cox, ––– N.W.2d ––––, ––––, 2011 WL 5903399, at *1(Minn.App. Nov. 28, 2011). Our holding in Cox compels a similar result here. Upon observing a discrepancy between the displayed license-plate tabs on appellant's vehicle and the information contained in the state's computer database, the officer had an objectively reasonable basis for the stop. The district court therefore did not err by denying appellant's suppression motion."

The dissent wrote:

"[T]he United States Supreme Court has held:

[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979). Investigatory stops to check a vehicle's registration are therefore unconstitutional, unless supported by reasonable, articulable suspicion. By allowing an officer to stop a vehicle that is displaying current, legally purchased, properly affixed registration tabs, the majority has upheld a stop based upon the state's failure to keep its records current. I am aware of no published caselaw—save for this court's recently released opinion in Cox—allowing the police to conduct a seizure based solely on a delayed updating of the state computer system.FN2 Yet that is precisely what the majority has done, first in Cox and again here. I wish to take no part in the upholding of this stop."

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!

DWI Law - Stop for Touching Fog Line Criticized

2011-12-28T12:11:00.000-06:00

Metcalf v. Commissioner of Public Safety, Not Reported in N.W.2d, 2011 WL 6015361 (Minn.App.) upheld a stop of a vehicle for touching the centerline and fogline twice. Of course, other jurisdictions allow for such a stop, but the dissent brings out why this one is so ridiculous. I repeat the dissent in its majority:

"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.

In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.

The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.

Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.

At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."

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 - Mississippi Reverses Conviction For Suspicious Behavior Illegal Stop

2011-12-28T12:09:00.001-06:00

This case comes to DAD from NCDD member Lance Mixon. In Reynolds v. City of Water Valley, --- So.3d ----, 2011 WL 6034360 (Miss.App. 2011) the defendant challenged his conviction based upon a lack of probable cause to stop the vehicle. On the morning of September 6, 2008, at 4:30 a.m., Water Valley Police Officer Christopher Blair was on routine patrol in Water Valley, Mississippi. Officer Blair was stopped at a red light at the intersection of Central Street and North Court Street. While waiting for the light to change, Officer Blair noticed a car stop approximately six-car lengths behind him. When the light changed, both cars proceeded southbound on Central Street. Officer Blair then turned left into a parking lot to perform a security check on the Dollar General business, but he noticed the car continued straight on Central Street. Officer Blair noted the car was a silver Chevrolet Corvette, which he stated was a “very unique car[.]”

After checking the doors, windows, and back of the Dollar General, Officer Blair turned north onto Railroad Street and saw the Corvette driving east on North Court Street. When the Corvette passed him at the intersection of Railroad Street and North Court Street, he noted the car was traveling below the speed limit of twenty-five miles per hour. He also saw that two males were in the Corvette and that the passenger was drinking from a white cup. The passenger pointed at Officer Blair when they drove by his car. Once the passenger pointed to the officer, the Corvette slowed from less than twenty-five miles per hour to approximately five to eight miles per hour. Officer Blair began to follow closely behind the Corvette for a “good little distance” and proceeded to call in the license plate number to dispatch. Dispatch informed Officer Blair that the car belonged to Reynolds and that there were “negative 29s, which means it's not wanted or stolen out of anywhere.” From there, the two cars continued east on North Court Street to Goode Street. Goode Street is a public street that generally runs north and south. To the south, it runs through the elementary school's campus. The Corvette turned right (south) onto Goode Street toward the elementary school; Officer Blair turned left (north) which runs into Jones Street.

Officer Blair traveled approximately 150 feet north on Goode Street when he made the decision to turn around and initiate a traffic stop with the Corvette because he believed it suspicious that the Corvette would be going toward the school at 4:30 a.m. The Corvette had turned around in the elementary school's parking lot and was driving north on Goode Street when the two cars passed each other near the elementary school. After passing each other, Officer Blair turned around, turned on his blue lights, and initiated a traffic stop. In response to Officer Blair, the Corvette immediately pulled over and stopped.

On appeal, the court found the stop of the vehicle illegal:

"At the bench trial, Officer Blair testified that Reynolds's behavior was suspicious and initiated an investigatory stop based upon the following events:

1. Reynolds stopped six-car lengths behind him at the stop light;

2. The car slowed its speed dramatically upon seeing the officer; and

3. The car, although on a public street, was driving toward the elementary school at 4:30 a.m."

Continuing, the appeals court wrote:

"The traffic stop ultimately led to Reynolds's arrest and conviction of DUI. Based on this evidence alone, we find Officer Blair did not have reasonable suspicion sufficient to initiate an investigatory stop under the Terry standard. At the bench trial, Officer Blair testified: Reynolds did not violate any traffic laws; the car had not been reported stolen; and there was not any other suspicious behavior beyond what was previously described. Further, Officer Blair testified that Reynolds did not exhibit any of the usual signs of DUI, such as swerving, failing to dim headlights, or abrupt stopping and starting. He also testified that one reason he was suspicious of the Corvette and decided to initiate the stop was based on the fact that the Corvette was driving toward the elementary school. He testified there “had [been] some break-ins both at the school, high school, [and] other businesses, that's why I was checking Dollar General, so I wanted to turn around and see why they were at the elementary school.” It is unclear from the record whether the elementary school or the high school had been broken into in the past, when the alleged break-in had occurred, and whether the suspects of the break-in had been apprehended. For example, had the suspects already been apprehended, it might not have been reasonable for Officer Blair to be suspicious of a car driving toward the elementary school. Further, once he turned around, Officer Blair saw that the Corvette had not stopped at the elementary school, nor was it doing anything suspicious at the school, yet he still proceeded to initiate the traffic stop. It was not until after Reynolds had exited the car that Officer Blair began to suspect Reynolds might have been drinking and driving. The supreme court has held that if the seizure was an unlawful exercise of the officer's authority, then any evidence that results from the unlawful seizure, in this case evidence of a DUI, is considered fruit of the poisonous tree and should be suppressed. Haddox, 636 So.2d at 1233. Considered as a whole, these acts of “suspicious behavior” do not demonstrate Reynolds had committed any criminal act or that one was imminent. Officer Blair might have been correct under the circumstances in concluding that the Corvette looked suspicious at 4:30 a.m.; however, merely looking suspicious is not sufficient to justify a Terry investigative stop. There was simply no evidence Reynolds had committed any criminal offense or was about to engage in criminal activity. Since Officer Blair lacked the proper reasonable suspicion to initiate a Terry stop, any evidence he found as a result of that stop is considered fruit of the poisonous tree and should have been suppressed at the hearing."
Therefore, the appeals court reversed the conviction for DUI Refusal and remanded with instructions.

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!

OWI Law - Illegal Entry Through Open Door Forces DUI Dismissal

2011-12-28T12:06:00.000-06:00

In State of Iowa v. Dierks, Slip Copy, 2011 WL 6076538 (Table) (Iowa App.), a concerned citizen reported a possible drunk driver. While following that person, the alleged DUI driver pulled into a business garage, parked with the garage overhead open, and entered into a business. The 'business' door was open, but a screen door was closed. The entrance did not appear to be one that would be used by the public at large. The police officer knocked and no one responded. The cop found the driver urinating in the restroom, and asked him to step outside. Once outside, the cop developed probable cause to arrest.

On appeal, the defendant alleged that entry was illegal. The Iowa court wrote:

The determination of whether Dierks “has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation.” See id. at 563 (quoting State v. Legg, 633 N.W .2d 763, 767 (Iowa 2001)). In resolving this issue, we do not ask “whether the individual has chosen to conceal some private activity but whether the government's intrusion infringes upon the personal and societal values protected by” the constitution. Id. (quoting State v. Breuer, 577 N.W.2d 41, 46 (Iowa 1998)).

“Although each case is unique,” we have differentiated business activity in a home. See id. (stating a guest in a home does not have a legitimate expectation of privacy if the guest is “on the premises merely to conduct a business transaction”). Additionally, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).

Courts have also concluded that “[a]n open gate invites entry.” United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (holding no constitutional violation when police entered an open business to ask the owner's permission to conduct a search). In United States v. Sandoval–Vasquez, 435 F.3d 739, 742–44 (7th Cir.2006), the officers in that case entered an open business around 4:30 p.m. by walking through the garage and a pedestrian entrance. The court noted the fact the business “may have been in the process of closing” did not make the entry unconstitutional, and distinguished an earlier case in which the officers unconstitutionally entered “a business they knew was closed.” Id . at 743.

"Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar , 268 F.3d at 532; see also Sandoval–Vasquez, 435 F.3d at 742–44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.

As to the State's claim of exigent circumstances, the court responded:

"The absence of hot pursuit requires us to carefully examine the claim of destruction of evidence. Id. at 566. There was no evidence Dierks knew Quandt was looking for him. There was no evidence Quandt suspected Dierks was engaged in any purposeful activity within the business premises that would destroy the integrity of any future chemical tests. Dierks's opportunity to flee by vehicle was denied, as Quandt blocked Dierks's car in the garage with his patrol car. There was no evidence concerning any efforts by police to seek a warrant or to determine the amount of time it would take to secure a warrant. Like the situation presented in Lovig, the facts here do not support a finding of exigent circumstances. See id. at 566–67. We therefore do not believe Quandt was entitled to enter through the rear door without a warrant or consent."

Therefore, the court reversed the defendant's conviction with directions to suppress.
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 - Illinois Suppresses Blood Test Without Preservatives

2011-12-28T12:02:00.000-06:00

In People v. Hall, --- N.E.2d ----, 2011 IL App (2d) 100,262, 2011 WL 6175606 (Ill.App. 2 Dist.), the defendant (who happens to be a county judge) was arrested for DUI by a police officer named Goldsmith (who is now deceased). During the course of the arrest, the arresting officer, Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and emergency medical technicians tended to defendant for about 25 minutes. Defendant was then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt of the pepper spray. While at the hospital, defendant was hooked up to an electrocardiogram, which detected a rapid heart rate. Before defendant was moved from the emergency room and admitted to the hospital, Goldsmith told him to come to the police station to pick up his citations after he was released. Goldsmith then left, and defendant was moved to a hospital room, where, eventually, several vials of his blood were drawn to be tested for heart-related issues. The following afternoon, defendant was released from the hospital and he picked up his citations at the police station.

The Illinois Attorney General took over the prosecution of this case, as the Lake County State's Attorney determined that his office had a conflict of interest.FN1 An assistant Attorney General, with the help of an assistant State's Attorney, learned that several vials of defendant's blood still remained at Condell. On May 14, 2008, the trial court ordered Condell to release the blood samples to the Vernon Hills police department for transportation to the Illinois State Police (ISP) crime lab for testing. FN2 An ISP technician tested the blood for alcohol concentration on May 15 and reported a blood alcohol concentration (BAC) of 0.107. This information was tendered to defendant on June 11, but the test results remained sealed under court order.

Jennifer Poltorak, a toxicologist at the ISP crime lab with bachelor's degrees in chemistry and forensic science, testified that she received three tubes of defendant's blood for testing, including one tube with a purple stopper. She tested two samples from the purple-topped tube, using a head space gas chromatograph; the average result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the ethanol reading would not have been affected by the presence of methanol in the blood sample. She also testified that it was not unusual to perform a BAC test on a blood sample that was 18 or 19 days old. Defendant's only witness, James O'Donnell, was a pharmacist and professor with bachelor's and doctorate degrees in pharmacy and a master's degree in nutrition. Testifying as an expert in pharmacology, O'Donnell opined that the tubes of defendant's blood were tainted because of a lack of determination of proper storage and the “significant probability” that microbial growth in blood untreated with preservative would lead to the synthesis of alcohol in the samples and would cause a “false positive” reading. Preservatives do not completely kill such bacteria but limit their growth.

Illinois administrative regulations state:

"Officers shall use DUI kits provided by the Department, if possible. If kits are not available, officers may submit two standard grey top vacuum tubes. (Pursuant to generally accepted industry standards, grey top vacuum tubes contain an anticoagulant and preservative.)"

On appeal, the court found that the failure to comply with this regulation (in that a purple-topper indicates a lack of preservative in violation of the rgulation) rendered the result inadmissible.

Additionally, the state argued that they should only have to 'substantially comply, rather than 'strictly comply' with the regulations.

In rejecting that position, the appeals court stated:

"Here, while there was evidence that the purple-topped tube from which the blood was taken for the BAC test contained an anticoagulant, there is no evidence that the tube contained the required preservative. There was 50% compliance with the requirement that the tube contain both an anticoagulant and preservative; however, there was zero compliance with the requirement that the tube contain a preservative. This is a failure to comply, not “substantial” compliance."

The appeals court also explained when a regulation requires substantial compliance or strict compliance. Quoting from an earlier decision the court explained how, in a case involving the failure to perform a 20 minute observation period (where the defendant admitted that he did not burp regurgitate or place anything in his mouth), substantial compliance might apply, but why here it must be strict compliance :

“The standards exist, not for their own sakes, but in service of the truth-seeking function, which they promote by ensuring that blood, breath, and urine tests are conducted in a manner that produces reliable results. If the standards are to serve this purpose, the rule of substantial compliance must be one that neither blithely ignores the standards nor enforces them in a purely rote manner. We are therefore reluctant to relax the standards when doing so would require inquiry into the scientific basis for a particular standard. However, when it is clear that a particular deviation from the mandated procedures does not pertain to a matter of science, a court is perfectly competent to determine whether, in a given case, the deviation compromised the integrity of the testing process.” People v. Ebert, 401 Ill.App.3d 958 (2010)

Continuing, the appeals court wrote:

"[T]he issue of whether the failure to include preservative in the tube of blood used for defendant's BAC test requires an inquiry into the scientific basis for the requirement. The blood was not tested for almost three weeks after it was drawn; neither the trial court nor this court is “perfectly competent,” in the words of Ebert, to determine whether the failure to include the preservative compromised the integrity of the testing process. See Ebert, 401 Ill.App.3d at 965. The legislature has assigned to the Department of State Police the responsibility to promulgate standards for chemical analyses of blood, urine, and breath and to “prescribe regulations as necessary to implement” section 11–501.2. 625 ILCS 5/11–501.2(a)(1) (West 2006). We will not second-guess the reasoning behind these regulations by considering conflicting testimony regarding scientific matters that are within the purview of the Department of State Police. We cannot conclude that failure to strictly comply with subsection (d) is de minimis. Under the facts of this case, Ebert does not support the State's argument that substantial compliance with the regulation would be sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err in excluding the BAC evidence because the State did not comply with subsection (d)."

The appeals court then affirmed the suppression of the blood test in this matter.
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 - Use of Video Doesnt Violate Confrontation Says Florida

2011-12-28T11:59:00.000-06:00

In State of Florida v. Holland, --- So.3d ----, 2011 WL 6183512 (Fla.App. 4 Dist.) the defendant was stopped and eventually arrested for DUI. After the initial stop, BSO Deputy Grady was called to the scene to perform field sobriety exercises on Holland. He requested Holland undergo a breath test. The interaction between Grady and Holland was recorded by video camera. In particular, the videotape showed Holland's refusal to submit to breath testing, the field sobriety exercises administered by Grady, and the conversations between Grady and Holland during the course of the investigation.

Before Holland's trial, the State announced that it did not intend to call Grady as a witness, prompting Holland to move to suppress all of Grady's involvement in the investigation. This included the entire contents of the videotape. Holland argued that the State's decision not to call Grady would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution,FN1 citing to Crawford v. Washington, 541 U.S. 36 (2004). The trial court agreed and suppressed the video.

On appeal, the court reversed. It found that the defendant's refusal to submit to sobriety cases was admissible, citing to a variety of cases as such:

"First, Holland's refusal to submit to sobriety testing is admissible. This issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) 1.a ., Florida Statutes (2010). Section 316.1932(1)(a) 1.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a) 1.a., Fla. Stat. (2010); see also State v. Kline, 764 So.2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant's refusal to submit to a breath or urine test). We look no further than the legislative directive to conclude that the segment of the videotape showing Holland's refusal is admissible under section 316.1932(1)(a) 1.a. Furthermore, Holland's statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party's own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v. State, 890 So.2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 F. App'x 948, 950 (11th Cir.2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

How the above statutes and caselaw relating to the admissibility of a refusal to submit to a post-arrest breath blood or urine test authorizes the admissibility of evidence of a refusal to submit to pre-arrest field sobriety testing is beyond this author's comprehension. In regards to the remaining portions of the videotape, the court wrote:

"We hold that Grady's statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance of an operative fact that gives rise to legal consequences.” Banks v. State, 790 So.2d 1094, 1097 (Fla.2001). Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein. Id. at 1097–98.

Here, Grady's directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct on the videotape); see also Stotler v. State, 834 So.2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay). The State is correct that Holland's reactions on the videotape would be meaningless without having the benefit of Grady's statements prompting Holland's reactions."

The court reversed and remanded the case to the trial court to determine whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop.

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!

OWI Law - Wisconsin OKs Attack on Prior Convictions to Beat Felony Charges

2011-12-28T11:57:00.000-06:00

In State of Wisconsin v. Decorah, Slip Copy, 2011 WL 6090109 (Wis.App.), the defendant was arrested for his fifth OWI offense. Decorah collaterally attacked a prior OWI conviction, alleging that he did not validly waive his right to counsel in that prior case. In particular, Decorah contended that he did not validly waive his right to counsel in his second OWI case because he did not know the applicable range of penalties when waiving counsel. After a hearing, the circuit court agreed that Decorah did not validly waive his right to counsel in the second OWI case. He was sentenced instead as a 4th offender and then the State appealed. Referring to previous caselaw the court affirmed:

"In Ernst, the supreme court explained that, in the context of sentencing based on prior convictions, a collateral attack may be based on a defendant's having not known or understood information that should have been provided when waiving the right to counsel in the prior proceeding:

[To collaterally attack,] the defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.... For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “ did not know or understand the information which should have been provided ” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel.

Id., ¶ 25 (emphasis added). As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis.2d 300, ¶ 15. Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “ ‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’ “ See Ernst, 283 Wis.2d 300, ¶ 15 (quoting Tovar, 541 U.S. at 81). Thus, Ernst, contrary to the State's position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel."

Editor's Note: Even with a waiver of counsel, a prior conviction might be subject to attack for the reasons stated above.

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!

DWI Law - Minnesota Says Pre-Arrest Silence Can Be Used at Trial

2011-12-28T11:54:00.000-06:00

In Minnesota v. Seebeck, --- N.W.2d ----, 2011 WL 6306620 (Minn.App.) a sheriff's deputy found Shawn Seebeck at two o'clock in the morning, alone, drunk, and wandering away from an unoccupied pickup truck on Highway 23. Seebeck agreed with the deputy that he should not have been driving because of his license revocation, suggested that he was not too impaired to drive, performed field sobriety tests, was arrested for drunk driving, and then submitted to a blood test without ever suggesting that he actually had not been driving. At the impaired-driving trial, the state emphasized Seebeck's omission to the jury, which convicted him. The appellate court was asked to decide whether the federal and state constitutions prohibited the state from emphasizing Seebeck's silence to bolster its trial position that, by saying nothing, Seebeck tacitly verified the deputy's understanding that he had been driving. Additionally, the court was also asked to determine whether the prosecutor plainly erred by misstating the law of physical control of a vehicle under the impaired-driving law.

With regards to pre-arrest silence, the court wrote:

"Seebeck's constitutional challenge to the use of his prearrest silence fails without the need for much discussion under the supreme court's recent decision in State v. Borg, No. A09–0243, ___ N.W.2d ____, 2011 WL 5560172 (Minn. Sept. 21, 2011). The Borg court reasoned that a defendant's silence that “is not in response to a choice compelled by the government to speak or remain silent” is not subject to Fifth Amendment protection. Id. at *7. After it extensively quoted Justice Stevens's concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980) (Stevens, J., concurring), the court expressly adopted his view that the decision whether to admit evidence of prearrest silence (as opposed to postarrest silence) raises no constitutional concerns, posing instead only “a routine evidentiary question.” Id. at *6–7 (quotations omitted). A prosecutor's comment about a defendant's prearrest silence therefore does not offend the defendant's constitutional right to silence. Id. at *7.

Regarding the use of the post-arrest silence, the court stated:

"Seebeck's constitutional challenge concerning the prosecutor's use of his postarrest silence fails for a different reason. The prosecutor pointed out during her opening statement to the jury and also elicited through Deputy Hasch's direct-examination testimony that, neither in responding to being told he was under arrest for drunk driving nor in responding to being advised of his blood-testing duty under the implied-consent law related to drunk driving, did Seebeck ever correct the deputy's assumption that he had been driving. This circumstance is different from those cases in which appellate courts have found no constitutional violation when the prosecutor used the defendant's postarrest silence to impeach the credibility of a defendant's trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 (1982) (holding that absent a Miranda warning, due process is not violated when a prosecutor relies on a defendant's postarrest silence to impeach his trial testimony); State v. Dobbins, 725 N.W.2d 492, 510 (Minn.2006) (recognizing that the Constitution does not bar the use of postarrest silence to impeach the credibility of a defendant who was not given a Miranda warning). In this case, by contrast, the state did not limit its use of the evidence of the defendant's postarrest silence to impeaching his trial testimony; it instead relied broadly on that evidence in its case-in-chief as substantive proof of an element of the offense charged. Neither the federal Supreme Court nor our state supreme court has decided the constitutional implication of a prosecutor's use of a defendant's postarrest, pre- Miranda silence in the prosecutor's case-in-chief rather than solely for impeachment. This court has similarly never answered the question.

"Several federal appellate courts have addressed the question, but with contradictory results. Three federal circuit courts (the Fourth, Eighth, and Eleventh Circuits) have deemed evidence of postarrest, pre- Miranda silence to be constitutionally admissible for use in the state's case-in-chief, while three others (the Seventh, Ninth, and D.C. Circuits) have deemed this use unconstitutional. Compare U.S. v. Love, 767 F.2d 1052, 1063 (4th Cir.1985); U.S. v. Frazier, 408 F.3d 1102, 1109–11 (8th Cir.2005); U.S. v. Rivera, 944 F.2d 1563, 1567–68 (11th Cir.1991), with U.S. v. Hernandez, 948 F.2d 316, 322–24 (7th Cir.1991); U.S. v. Velarde–Gomez, 269 F.3d 1023, 1028–30, 1036 (9th Cir.2001); U.S. v. Moore, 104 F.3d 377, 384–89 (D.C.Cir.1997). Of those courts, the two that most thoroughly addressed the constitutional concerns came to different conclusions. The D.C. Circuit in Moore and the Eighth Circuit in Frazier carefully discussed the compelled-statement concerns of the Fifth Amendment as well as due process concerns indirectly related to Miranda. See Moore, 104 F.3d at 385–87; Frazier, 408 F.3d at 1109–11. The Moore court surveyed the Supreme Court cases and interpreted their rationale to conclude that the prosecution can never constitutionally use a defendant's silence against him as evidence of guilt. 104 F.3d at 389. In contrast, the Frazier court rejected a bright-line prohibition and held that the silence may be applied by the state in its case-in-chief if the silence was not the result of compulsion by law enforcement. 408 F.3d at 1110–11."

Ultimately though, the court chose not to decide which approach to follow, holding that, even if the post-arrest silence was inadmissible, the error was harmless based upon the evidence in the case:

"First, the argument mistakenly assumes that Seebeck's postarrest silence was the only evidence that he was driving. Before Seebeck took the stand, the jury had sufficient evidence other than his silence from which it could have found that he was driving (specifically, his walking alone from the pickup truck in the middle of the night, his acknowledging that he should not have been driving while revoked and saying that he thought he was physically safe to drive, and his prearrest silence). And second, the argument mistakenly assumes that Seebeck's incriminating testimony resulted from his attempt to rebut the evidence inferred from his silence. The incriminating portion of Seebeck's direct testimony about the details of his contact with the vehicle's controls was wholly unnecessary to rebut the inculpatory inference from his silence. So to the extent that Seebeck believed that he needed to testify to rebut the assertion that he was actually driving, that need existed irrespective of any allegedly unconstitutionally admitted evidence of his silence; and the incriminating portion of Seebeck's voluntary testimony was unnecessary to rebut the only incriminating inference that could have been drawn from the challenged evidence. Seebeck's arguments do not overcome our impression beyond a reasonable doubt that the allegedly unconstitutional admission of evidence did not influence the jury in reaching the guilty verdict.

The court concluded that, because his right to remain silent does not prevent the state from using evidence of his prearrest silence and use of his postarrest silence was at most harmless error, and because the prosecutor did not misstate the law of physical control, we affirm.

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 - Arizona Says Illegal Stop for One Brake Light Means Dismissal of Charges

2011-12-28T11:52:00.000-06:00

In State of Arizona v. Fikes, --- P.3d ----, 2011 WL 6318947 (Ariz.App. Div. 2) a police officer observed that the brake light located at the top rear of Fikes's vehicle was not working and stopped him for violating A.R.S. § 28–939. The vehicle's two other brake lights were working. The officer observed no other traffic infractions, nor did the officer articulate any other reason for the stop. After stopping the vehicle, the officer discovered Fikes had been driving under the influence of alcohol. Fikes moved to suppress all of the evidence obtained from the traffic stop on the grounds the officer lacked reasonable suspicion to make the stop. The trial court denied the motion and evidence of the investigation was presented at trial. After Fikes was convicted and sentenced, he appealed.

On appeal, the defendant claimed that the statute only required one working stop lamp, and he had 2 of 3 in working condition. The statutes read that: “A person ... shall not drive a vehicle on the highways unless it is equipped with a stop lamp that meets the requirements of § 28–939.” A.R.S. § 28–927. Section 28–939 is titled “Signal Lamps and Devices,” sets forth some technical requirements for stop and other lamps, and provides in relevant part: “If a vehicle is equipped with a stop lamp or other signal lamps, the lamp or lamps shall: 1. Be maintained at all times in good working condition. 2. Not project a glaring or dazzling light.”

The court found that the statute only required one working lamp, and so they reversed the conviction. At oral argument, the state contended the legislature could have wanted to require all installed stop lamps to work because a non-functioning stop lamp could confuse other drivers. In response, the court wrote:

"However, the legislative history does not indicate that the legislature was concerned with this possibility. And nothing in the record indicates any other driver was or could have been confused here. The state also claimed this decision could discourage police officers from stopping dangerous vehicles under a public-safety or community-welfare exception. See, e.g., State v. Mendoza–Ruiz, 225 Ariz. 473, 240 P.3d 1235 (App.2010); State v. Organ, 225 Ariz. 43, 234 P.3d 611 (App.2010). But the officer here did not testify that he was motivated by public safety or community welfare." 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!