Misdemeanor DUI convictions enhance federal felony sentencing
United States Court of Appeals, Eighth Circuit.
UNITED STATES of America, Appellee, v. Gabriel E. PANDO, Appellant. No. 08-1317.
Submitted: Sept. 24, 2008. Filed: Oct. 30, 2008
The eighth circuit has confirmed that a misdemeanor DUI conviction adds a criminal history point for federal felony sentencing.
Sentences for Driving While Intoxicated or Under the Influence. Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted. Such offenses are not minor traffic infractions within the meaning of § 4A1.2(c). *3 USSG § 4A1.2, comment. (n.5) (emphasis added). "States define terms such as 'under the influence' in various ways. In a number of states, the term means simply that an individual's ability to drive a vehicle is impaired. Thus, the reference in Application Note 5 to 'similar offenses' means offenses involving driving and alcohol impairment." United States v. Walling, 974 F.2d 140, 142 (10th Cir.1992) (internal citations omitted).
ANALYSIS: DUI attorneys beware to warn clients who might have a propensity to commit federal felonies that their drunk driving conviction could add months or years to future sentences. Clearly misdemeanor DWI punishments extend beyond the confines of misdemeanor sentencing guidelines.
Oregon DUII Law - Curative instruction not adequate
In the Court of Appeals of Oregon. - STATE of Oregon, Plaintiff-Respondent, v. Brett Alan VEATCH, Defendant-Appellant. D052111T; A132040., Argued and submitted on March 10, 2008. Decided Oct. 29, 2008.
From the defense perspective, this opinion starts out bad and then gets very good at the end. First, the court affirms that an officer doesn't have to give a defendant privacy to talk with an attorney until contact with a live attorney is made.
Consistently with Durbin, we conclude that defendant's reasonable opportunity to consult with counsel was not violated because Berry remained in the room while defendant left messages and asked his mother for a referral. Indeed, as we noted in State v. Matviyenko, 212 Or.App. 125, 130, 157 P3d 268 (2007), "an officer may be justified in remaining in the room until contact with an attorney is made in order to ensure that the suspect actually calls an attorney rather than using the telephone for some inappropriate purpose." The trial court did not err in denying the motion to suppress.
The court also considered the issue of whether a curative instruction was sufficient, and if not, whether the failure of defense counsel to specifically object to the content of the instruction failed to preserve the issue for appeal.
The court found that the issue was preserved:
We next consider the state's contention that defendant's failure to object to the sufficiency of the curative instruction nullified his mistrial motion for purposes of this appeal. We conclude that it did not. Neither we nor the Supreme Court have ever held that, when a trial court gives a curative instruction in response to objectionable testimony, the defendant must object to the sufficiency of the instruction in order to be permitted to raise on appeal an otherwise properly preserved mistrial motion based on that testimony. In short, if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction.
The issue of the adequacy of the curative instruction regarding Defendant's request for counsel was next considered:
The state agrees that it is improper to admit evidence of a defendant's invocation of constitutional rights, but it argues that the curative instruction was sufficient to ensure that defendant received a fair trial.
The court decided the issue of whether the curative instruction was sufficient to divert the jury's attention from an inference of guilt based on the request for counsel.
We conclude that Berry's statement likely gave rise to an adverse inference of guilt. The jury was informed that defendant had invoked the right to counsel in response to being asked whether he would submit to a potentially incriminating breath test. Berry's statement was not incidental to some other point that the jury was more likely to be focusing on. As defendant argues, under the circumstances, a jury would likely infer that a person arrested for DUII would not ask for an attorney unless he or she was concerned about failing the breath test-in other words, a jury would likely see it as a tacit admission of guilt. Because nothing in the context diverted the jury's attention away from that inference, we cannot say that it is unlikely that the jury drew it.
Here's the instruction that was given by the Judge:
As noted above, the court instructed the jury that "a person has a right to call their lawyer and you're not supposed to make any inferences from that, since they have a right to do it. And so the State's not even supposed to bring it up. * * * The seven of us are going to totally ignore it * * *."
Here's what the Oregon Court of Appeals said:
Because Berry's testimony was prejudicial to the defense and the trial court's instruction did not cure that prejudice, the court abused its discretion in denying defendant's motion for a mistrial.
ANALYSIS: It takes a lot to find an "abuse of discretion" in cases where the trial judge is in the best position to assess the impact of words on a jury in the courtroom. Kudos to the Oregon Court Of Appeals for getting this right. As we say "that is a bell you can't unring."
AN ASIDE: This week has seen a slew of new DUI cases from across the nation that are favorable to the defense. DUI defense lawyers should rejoice in their efforts. While the Constitutional Rights of those accused of DUI/DWI continues to be eroded by state legislators, it is good to see that the appellate benches are making the right calls.
Tennessee DUI Law - Defendant's appearance insufficient to toll statute of limitations
New Caselaw Alert: Supreme Court of Tennessee, at Knoxville.
STATE of Tennessee v. Roy Anthony FERRANTE. No. E2007-00180-SC-R11-CD. Sept. 4, 2008 Session. Oct. 28, 2008.
The Tennessee Supreme Court has ruled that a defendant's presence in court on a DUI case is not sufficient to toll the statute of limitations when the complaint in the case is deficient, and the deficiency is not cured until after the running of the statute of limitations.
This opinion was issued on October 28, 2008 and at the time of this entry has not yet been published.
We granted permission to appeal to determine whether a criminal defendant's appearance in court is sufficient to commence a prosecution for purposes of tolling the statute of limitations where the purported charging instrument is void ab initio. We hold that a defendant's appearance in court following the issuance of an affidavit of complaint that is void from inception does not toll the running of the statute of limitations. The fatal deficiencies in the affidavit of complaint in this case were not overcome until after the limitations period had expired. Accordingly, the Defendant's motion to dismiss the charge against him in this case must be granted. The judgment of the Court of Criminal Appeals reinstating the charge against the Defendant is reversed, and the charge against the Defendant is dismissed. (Emphasis added).
ANALYSIS: A defendant has the right to a timely and speedy trial. A defendant also has the right to know precisely the charges against him or her. It is the State's job to charge and charge correctly. This case got it right by saying that a prosecutor will not escape the negative consequences of sloppiness through judicial coddling. Great result! Congratulations to the excellent DUI defense lawyers involved.
Mississippi DUI Case - New retrograde extrapolation ruling
In a new, yet unpublished opinion, the Court of Appeals of Mississippi in Mary Reed EVANS, Appellant v. STATE of Mississippi, Appellee. No. 2007-KM-00443-COA, issued on Oct. 28, 2008, ruled that retrograde extrapolation testimony is admissible in a DUI case to show a defendant's projected alcohol level at the time of driving when the alcohol test came over an hour after driving. The holding of the Court was:
For the foregoing reasons, we find the circuit court abused its discretion in excluding the evidence of Evans's consumption of alcohol and the expert testimony of Dr. Rosenhan. Additionally, we reject the State's argument that Dr. Rosenhan is not qualified as an expert in retrograde extrapolation. Accordingly, we reverse and remand for a new trial in accordance with this opinion.
The Westlaw cite for this case is2008 WL 4712062. We will provide a published cite if it becomes available.
ANALYSIS: In many states, the Per Se DUI law that was the subject of this case has language that the Per Se Limit (typically .08 or greater) just has to be proven within two hours of driving. Some states have legislation or caselaw that renders retrograde testimony irrelevant as long as the alcohol test sought to be admitted to prove the Per Se violation was obtained within 2 hours of driving.
This ruling is certainly good for the defense. However, if published, it may open the door to a higher court imposing a time limit of retrograde testimony. In my opinion, it is best for this case to remain unpublished for now.
Georgia DUI Case Law - New probable cause to arrest case
In an opinion published on October 24, 2008, the Georgia Court Of Appeals reversed a conviction because the officer lacked probable cause to arrest for DUI.
The case is Handley v. The State. At present, only the Westlaw site is available 2008 WL 4694283.
The main holdings are quoted below.
"Evidence which shows only that a defendant had alcohol in her body while driving provides insufficient probable cause to arrest for driving under the influence. Impaired driving ability depends solely upon an individual's response to alcohol. Because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver.
Here, the State offered no evidence showing that Handley's driving ability was impaired due to alcohol consumption. The deputy testified that he noticed nothing remarkable about Handley's driving. The State presented no evidence showing that Handley's speech was slurred, her gait was unsteady, or her eyes were bloodshot, watery, or glassy, and the deputy conducted no field sobriety tests. The only evidence offered was that the officer smelled alcohol on Handley's breath, the alco-sensor test revealed the presence of alcohol, and Handley admitted that she had been drinking "earlier in the day." This evidence is insufficient as a matter of law to constitute probable cause to arrest Handley for driving under the influence."
State Ordered To Produce Intoxilyzer Source Code
Tucson, AZ - A Pima County Superior Court Judge has ordered the prosecution to get the Intoxilyzer source code in electronic format from CMI, the maker of the breath testing machine.
In litigation that has spread through most states that use CMI products, CMI has steadfastly refused to divulge the source code behind its machines, claiming that it is work product and proprietary. Defense attorneys have argued, mostly unsuccessfully, that the source code is necessary to analyze whether the machine accurately analyzes breath samples.
In Tucson, Judge Bernini ordered the State to produce it.
DUI attorneys familiar with the case predict that CMI will refuse to hand it over, perhaps because hidden within it is something that shows that the company betrayed its customers, potentially exposing it to lawsuits.
The Tucson Citizen's recent article on the source code ruling explains the lead attorney's theory.
Other attorneys familiar with the issue speculate that CMI will ultimately have to shut down operations, perhaps resuming under another business entity.
In Arizona, the trend is already towards blood draws, with many officers being trained in phlebotomy.
DMV Hearings - Claims that they are rigged in California
In a post today, Lawrence Taylor of duiblog.com made the assertion that DMV hearings in California May be rigged. The basics are that the head hearing officer issued a scathing memo berating judges for bad decisions allowing people to keep their licenses.
The judges or hearing officers who listen to these cases are supposed to be neutral. It is a basic premise of due process. Typically, administrative law judges decisions are reviewable by an appeals court, not the supervisor in the office.
The memo quoted in Mr. Taylor's post makes it sound like the lower ALJ's jobs may be in danger if the boss doesn't agree with their rulings. However, there is no hint that the boss would be reviewing cases where the ALJ suspended the driver's license, only those where no suspension was issued.
The conclusion to be drawn, if the memo is authentic, is that any ALJ in that office that wants to keep his or her job secure would be best served by issuing suspensions, since non-suspensions would be reviewed.
If this is true it is a shameful slap in the face of lawyers and judges who work hard to maintain our justice system, along with due process. No matter which side you are aligned with in the great drunk driving divide, nobody with any legal training who cares about our system could, with clear conscience, condone this memo.
