Destroyed video of field sobriety tests
The Alaska Court of Appeals has ruled that the “loss or destruction of evidence” instruction regarding a destroyed video of the FSTs and breath test still left the jury enough to find guilt beyond a reasonable doubt.
The Cite: Bradley v Alaska, Alaska Court of Appeals No. A-9877, Issued November 28, 2008
Quote from the opinion:
Bradley claims that based on the "loss or destruction of evidence" jury instruction, there was insufficient evidence supporting the DUI verdict. That is, he contends that had the members of the jury followed this instruction and presumed that the lost or destroyed evidence was favorable to Bradley, they could not have found him guilty of driving while under the influence. But in this case, the jury could disregard the evidence surrounding the field sobriety tests and the DataMaster processing and still convict Bradley of driving while under the influence.
My Comments: A curative jury instruction, by its nature, gives the jury a chance to consider whatever the issue is. This ruling makes sense.
Field sobriety test cross examination "not relevant"
The Court of Appeals of Kansas upheld the conviction of a DUI defendant when the trial judge refused to allow the defense lawyer to question the officer about other people not being able to do the field sobriety tests.
The Cite: Kansas v. Garcia, Court of Appeals of Kansas, Opinion issued November 26, 2008.
Quote from the opinion:
The trial court did not err in ruling Garcia could not ask the trooper about specific contents of the NHTSA manual without first producing the manual.
The fact that other people are unable to complete the test, whether because of their own intoxication or some physical ailment, does not have any tendency in reason to prove or disprove Garcia's impairment. The trial court did not abuse its discretion in concluding this evidence was irrelevant.
My Analysis: Now, more than ever before, it is important to go into every DUI trial armed with an expert who can discuss the meaning of the NHTSA and other supporting studies to challenge the field tests. In this political climate, a defense lawyer should never rely on “getting it from the officer.” There are just too many things that can go wrong, the most obvious of which is that the officer can lie or claim a lack of knowledge to discuss the NHTSA manuals.
This is a terrible ruling, and one that shows the lengths to which some trial courts will bend over backwards to make it easy on DUI prosecutors. It also shows the trend of appellate courts to leave the trial judges' bad decisions alone.
Continue Reading...Excused DUI jury never made it out of box
Interesting DUI procedural case out of Los Angeles, California.
The trial judge mistakenly discharged the jury after they found the defendant guilty, and forgot to ask them to decide the issue of the defendant’s prior conviction. The prosecutor brought it to the judge’s attention immediately and the judge then charged them to go and decide the issue.
Here, the defense argued that the rule that once a jury is released they can’t be reconvened. However, the jury in this case, following its discharge, literally never made it out of the box.
The Cite: People v. Kimbell, Court of Appeals of California, Published on November 25, 2008.
Relevant quote from the opinion:
Here, the jury had not even left the jury box when the prosecution brought the irregularity to the court’s attention. There is no contention the jury was exposed to any outside influence. Nor is there any contention Kimbell was prejudiced. Instead, Kimbell attempts to hold the trial court to a hard and fast rule that the jury may not be reconvened once verbally told they were excused by the court. Shaffer and Hendricks hold otherwise.
My Comments: Good ruling. Reversal of conviction on this issue would undermine the sanity and credibility of the justice system. The backlash would have been worse than the trial court’s mistake, amounting to getting off “on a technicality.” While I typically side with the defense and want to err on the side of protecting Constitutional safeguards, I also route for the integrity of the justice system, and here integrity prevailed.
PBT given by jail employee is constitutional
This DUI hits just keep on coming. Here is a gem out of the Court of Appeals of Minnesota.
In most states the Preliminary Breath Test (PBT) is considered junk science and can’t be used against a DUI defendant. Minnesota decided that not only is it admissible, but that it can be administered by non-law-enforcement jail personnel, and then used to satisfy Admin Per Se in a license suspension action. Not to let this prosecution of what sounds like a nasty DUI related assault go down the systems drain in the interest of protecting the Constitution, the court then held that a two-minute opportunity to contact an attorney is sufficient to avoid a right to counsel violation.
The Cite: Mell v. Commissioner of Public Safety, Court of Appeals of Minnesota, Opinion issued November 25, 2008.
A PBT can be administered by a non-officer jail employee, and then used to satisfy Admin Per Se:
We reject the claim that the administration of the PBT by the jailer was improper simply because it was not done incident to Minn.Stat. § 169A.41. That statute does not limit use of the PBT to traffic stops.
We conclude that Chisago County's legitimate interests in operating its jail safely outweighed appellant's claim of privacy, that the administration of the PBT was justified by legitimate government interests in operating the jail, and that the administration of the PBT did not violate either the federal or state constitutions.
In this case, Officer Puelston personally detected the odor of alcohol on appellant and observed that appellant had been driving. Later in the evening, he learned that appellant took a PBT and had an alcohol concentration of more than 0.08. With this information, Officer Puelston had probable cause to believe that appellant was violating Minn.Stat. § 169A.20 and the authority to read appellant the implied-consent advisory.
A two-minute window of opportunity what a phone and phone directory in the middle of the night was sufficient access to counsel:
We recognize that appellant's arrest and his implied-consent decision were made late at night and that Deputy Puelston decided that he had vindicated appellant's right to counsel after only a few minutes. Nonetheless, based on the totality of the circumstances, we conclude the record adequately supports the district court's finding that Deputy Puelston vindicated appellant's right to counsel by providing a telephone, directory, and time to make contact with an attorney and the finding that appellant ended any good-faith effort to contact an attorney by the time he was asked whether he would take the test. Consequently, we conclude that appellant's right to counsel was not violated.
My Comments: Allowing a non-commissioned jail employee to collect this type of evidence creates an excellent opportunity for those to whom DUI defense attorneys refer as “cop wannabes,” to “play one on TV.” This is a slippery slope, and very slippery at that, when it starts with allowing the application and use of junk science like a PTB.
This opinion is published and is now apparently the law of the land in Minnesota, so I have to believe that the Court of Appeals gave the issue ample thought.
On the other hand, with the right to counsel issues, other states have created a reasonable per se time frame for a DWI suspect to contact an attorney. Two minutes is the shortest I have seen, but since they used to trusty old “totality of the circumstances” rational, this part of the opinion appears to apply on a case-by-case basis and leaves open the possibility that in another Minnesota DUI case a two-minute window could be held unconstitutional.
Officers can be sued in DUI death case
This one is long but worth the read because it explains the treatment of DUI arrestees by many officers. Many people arrested for drunk driving complain that the officers treat them poorly and some are overtly rude.
Ohio has just ruled, in a November 21, 2008 decision, that government personnel can be civilly sued when they release a vehicle of a known DWI driver and then that driver injures or kills another. This case is important, and my opinion is that it will go all the way to the Supreme Court of the United States. If officer liability in this type of situation sticks, plaintiffs’ attorneys will look to police officers and other law enforcement workers when a drunk driver causes grief. Just like in dram shop cases, a technically not-guilty party will be pulled into the civil litigation boat.
While I’m not concerned with the civil aspects of this ruling, it’s impact on officer behavior could be alarming. Do we want officers to start acting to prevent lawsuits rather than doing their jobs of professionally removing impaired drivers from the roads?
The Cite: Estate of Jillian Graves v The City of Circleville, Court of Appeals of Ohio, Decided Nov. 21, 2008.
The Ruling – why police officers and dispatchers can be sued for the premature release of a DUI driver’s vehicle from impound when the DUI driver then kills a third party.
In this case, the Officers failed to ensure that Copley's vehicle remained impounded until released by court order. In doing so, they gave a habitual drunk driver, known to drive on a suspended license, access to his vehicle without a judicial determination that it was safe to do so. The Officers argue that Copley's conduct was the superseding/intervening cause of Ms. Graves's death. However, we do not believe that Ms. Graves's death at Copley's hand was so remote that tort jurisprudence will excuse the officers' conduct as a matter of law. Under the circumstances, it was reasonably foreseeable that Copley would drive his vehicle drunk, cause an accident, and injure or kill another driver. A reasonable trier of fact could find that Ms. Graves's death was the natural and probable consequence of the Officers' premature release of Copley's vehicle. Thus, denial of the Officers' joint motion for summary judgment was appropriate. Therefore, we overrule the Officers' sole assignment of error and affirm the judgment of the trial court.
An analysis of Officer Shaw’s conduct:
The Estate contends that Officer Shaw acted in a wanton or reckless manner when he failed to ensure that Copley's vehicle would not be released without a court order and failed to take any steps to retrieve the vehicle after its premature release. Officer Shaw admitted in his deposition that when he arrested Copley for DUI and DUS, he knew that Copley's license had been suspended due to a prior DUI violation. Officer Shaw knew that under those circumstances Copley's vehicle could not be released without a court order. Yet Officer Shaw did nothing to ensure Copley's vehicle would not be released without a court order. Even after reviewing Copley's lengthy DUI history on the LEADS report, Officer Shaw did nothing to prevent Copley from retrieving the vehicle. Upon learning Copley in fact retrieved the vehicle, Officer Shaw did nothing to secure its return.
Construing all the evidence presented in favor of the Estate, it is apparent that reasonable minds could reach different conclusions regarding whether Officer Shaw acted in a wanton or reckless manner. Based on Officer Shaw's knowledge of Copley's suspended license, extensive DUI record, and most recent arrest for DUI, we find that reasonable minds could conclude that Officer Shaw was aware of facts that would lead a reasonable person to realize not only that allowing Copley to access his vehicle without court permission created an unreasonable risk of physical harm to others on the roadway, but also that such risk was substantially greater than that which was necessary to make his conduct negligent. Reasonable minds could likewise conclude that given Copley's propensity to drive under the influence, Officer Shaw must have been conscious that his failure to follow the impound procedure would in all probability result in injury.
Officer Eversole’s conduct:
While it is unclear from Officer Eversole's deposition testimony whether he knew that Copley's vehicle had not been properly impounded, a reasonable jury could conclude that he did based on Ms. Brewer's testimony. Construing all the evidence presented in favor of the Estate, it is apparent that reasonable minds could reach different conclusions regarding whether Officer Eversole acted in a wanton or reckless manner. Based on Officer Shaw's knowledge of the charges, knowledge that the vehicle had not been properly impounded, and concern that Copley would kill someone with the vehicle, we find that reasonable minds could conclude that Officer Eversole was aware of facts that would lead a reasonable person to realize not only that allowing Copley to have access to his vehicle without court permission created an unreasonable risk of physical harm to others on the roadway, but also that such risk was substantially greater than that which was necessary to make his conduct negligent. Reasonable minds could likewise conclude that in light of Officer Eversole's verbalized concern that Copley would kill someone with the car, Officer Eversole must have been conscious that his failure to follow the impound procedure would in all probability result in injury.
Could the dispatcher’s conduct amount to more than negligence?
Construing all the evidence presented in favor of the Estate, it is apparent that reasonable minds could reach different conclusions regarding whether Dispatcher Carpenter acted in a wanton or reckless manner. The Estate presented evidence that Dispatcher Carpenter knew of the charges, knew of Copley's criminal record, and should have known the department's procedures for impounding vehicles. Based on this evidence, we find that reasonable minds could conclude that Dispatcher Carpenter was aware of or should have been aware of facts that would lead a reasonable person to realize not only that allowing Copley to have access to his vehicle without court permission created an unreasonable risk of physical harm to others on the roadway, but also that such risk was substantially greater than that which was necessary to make his conduct negligent. Reasonable minds could likewise conclude that in light of this evidence, Dispatcher Carpenter must have been conscious that ignoring proper impound procedure would in all probability result in injury.
My Comments: This is another symptom of the “war on drunk driving,” and I’m sure that MADD will rejoice in this ruling. I wonder, however, if it serves the public interest. On the one hand, a habitual drunk driver is unlikely to have insurance or resources for a victim’s family to go after. On the other hand, this case could taint all future actions of the officers involved, and make it more likely that they will err on the side of not giving a citizen the benefit of the doubt.
No easy solutions here. Interested to hear your point of view.
Delaying a DUI jail sentence
There are very few public stories that catch our interest, as most fall into the category of propaganda or celebrity gossip. This story is different. It is about a 10-time DUI convict, condemned to another 4 years in prison.
This poor guy's daughter is sick and needs a kidney. The justice system is allowing him to delay his start date for the sentence in order to donate a kidney to her.
Kidney disease is tangible and one that our court's honor and pay attention to. Alcoholism is, for the most part, treated as a criminal rather than medical problem.
Excerpts from the AP Article: (link)
He was given a 4-year prison sentence, but it won't begin until January. Prosecutor Sandra Donaghy said the start of Lawrence's sentence was set back so he can contribute one his kidneys to his seriously ill daughter. Court records show Lawrence has 10 previous DUI convictions in Knox County and one each in Sevier and Union counties. A call to arms for DUI attorneys, and prosecutors: Start educating your colleagues, judges, court staff and the public about the disease of alcoholism. Until we start treating the underlying cause of drunk driving, we will never solve the symptoms, which often come in the form of multiple DWI arrests.
Terrible blood chain of custody DUI case
In a stunning reversal of a DUI dismissal, the Court of Criminal Appeals of Tennessee sent a case back to the trial court finding that the trial judge abused his discretion in ruling that the chain of custody for the blood test had not been established.
The Cite: Tennessee v. Dyer, Court of Criminal Appeals of Tennessee, Issued November 19, 2008.
The facts (which rely on hearsay and speculation to establish):
The facts of the case herein reveal that Officer Mara took Appellee to the hospital and witnessed what he believed to be a nurse or a nurse practitioner draw Appellee's blood and place it into the blood kit that Officer Mara provided. There is no indication that his belief was incorrect. Officer Mara testified that he placed the blood kit in the trunk of his car and transported it back to police headquarters where he placed it in an evidence bag and put it inside an evidence locker. The key to the evidence locker is possessed only by the evidence technician at the police department. Special Agent Crews testified that the blood sample was hand-delivered to the TBI by Mike Durham and received by the TBI evidence technicians. Special Agent Crews explained the TBI procedure for the receipt and processing of blood samples. The sample was sealed when it was received by Special Agent Crews, and he had "no reason to believe the blood sample wasn't in good condition."
The strange ruling:
We determine that the State sufficiently established the chain of custody of the blood sample. Therefore, the trial court erred in excluding the results of the blood test, dismissing the indictment, and dismissing the case with prejudice. Accordingly, we reverse and remand this case for reinstatement of the indictment and a new trial.
My comments: This one is a hard DUI decision to swallow. My guess is that this opinion remains unpublished because it is so bad. My hope is that they attorneys involved take this case up higher. To allow the evidence presented here to suffice as a proper chain of custody effectively renders a bad chain of custody in Tennessee an affirmative defense for which the DUI defendant has the burden of proof.
My hat goes off to the trial judge who did the right thing.
DUI judges behaving badly
The cite: Tennessee v. Gaddis (decided 11/20/08 by the Court of Criminal Appeals of Tennessee).
The third issue on appeal in this case was:
“(3) argues that the trial judge erred in permitting certain colorful but crude testimony describing the Defendant as "shit-faced" and by making disparaging comments about defense counsel in front of the jury”
What the officer said on the witness stand:
“When asked if he noticed "anything else about [the Defendant's] demeanor or appearance," Officer Beeam responded, "Well, an intoxicated person has a look about them.... I call it 'shit-faced.' " According to Officer Beeam, the Defendant had "that look about him" on the evening in question. Officer Beeam witnessed Officer Monteith explaining the implied consent form to the Defendant, and Officer Beeam also affixed his signature to the form.”
Was the judge wrong, or just acting like a jerk in the following exchange taken from the record:
Q. Okay. You found out the driver's license had expired. How long had that been expired?
A. Well, I had to run them through the computer, I think they had been expired--
MR. ROGERS: Objection, your Honor.
THE COURT: Sustained.
GENERAL WINNINGHAM: Pardon?
THE COURT: Sustained.
GENERAL WINNINGHAM: I didn't hear what his objection was, your Honor.
MR. ROGERS: Hearsay.
THE COURT: It's not relevant. Move on.
Q. Do you know how long the license had expired?
MR. ROGERS: Objection?
THE COURT: Sustained.
GENERAL WINNINGHAM: Your Honor, may I approach?
THE COURT: You can approach.
(GENERAL WINNINGHAM APPROACHED THE BENCH AND THE FOLLOWING TOOK PLACE OUT OF THE HEARING OF THE JURY:)
GENERAL WINNINGHAM: Your Honor, we've discussed the records and—
THE COURT: Just ask him about the sheet.
GENERAL WINNINGHAM: I just wanted to make sure that I--
THE COURT: Go ahead.
(THIS CONCLUDED THE CONFERENCE AT THE BENCH AND THE FOLLOWING TOOK PLACE IN THE HEARING OF THE JURY:)
MR. ROGERS: Did I miss it?
THE COURT: Yes, you missed it.
MR. ROGERS: I'm sorry, Judge, I've got up as quick as I could.
THE COURT: You've got to move quicker.
MR. ROGERS: I guess I'm getting old, I can't move much quicker.
THE COURT: That's where us little people have an advantage sometimes.
The Ruling on issue(s) number three:
The Defendant failed to make a contemporaneous objection to either of the statements. "Objections must be timely and specific." Tenn. R. Evid. 103, Advisory Commission Comments. Relief is not available to a party who is responsible for, or fails to take action to prevent, an error. Tenn. R.App. P. 36(a). Additionally, the Defendant did not include the trial court's comments about defense counsel as error in his motion for new trial. Generally, issues are waived if they are not presented in a motion for new trial. See Tenn. R.App. P. 3(e). Accordingly, we conclude that the Defendant's assignments of error are waived.
Nonetheless, we find it necessary to admonish the trial court. A bench conference should not have been conducted without defense counsel, and the trial judge's comments to defense counsel following the bench conference, regarding his stature and girth, were inappropriate, particularly when made in front of the jury. See Tenn. R. Sup.Ct. 10, Canon 3B(4), (5). Moreover, the trial court should have preserved the dignity and decorum of the courtroom by admonishing Officer Beeam for his crude and vulgar language. See Tenn. R. Sup.Ct. 10, Canon 3 B(3). However, the record does not establish that the trial court's actions deprived the Defendant of a fair trial.
Analysis and practice tips: That’s life in the big city folks. A trial judge can bully the defense attorney all he wants. The less competent the trial attorney (or the worse day she is having) to more leeway the trial judge has to be jerk.
The issue comes down to did the defendant and his lawyer jump through the proper procedural hoops? The answer is that they did not. No timely objection. No mention of the issue in the motion for new trial. Sorry, no love from the court of appeals
Warning: This opinion is not currently published so use caution in citing as authority.
Florida DUI refusal license suspension reversed by appeals court
A Florida appellate court has reversed an implied consent license suspension in DUI case where the Administrative Law Judge failed to consider the legality of the petitioner’s arrest.
The Cite: District Court of Appeal of Florida, First District. William HERNANDEZ, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. No. 1D08-1424. Nov. 21, 2008. See Hernandez v. Florida Department of Highway Safety and Motor Vehicles.
The Holding: This court's review is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Section 316.1932 unambiguously provides that a driver has impliedly consented to submit to a breath or blood test only when such is incidental to a lawful arrest. Given this clear statement of law, the circuit court here erred when it held that the DHSMV hearing officer did not err when it failed to consider the legality of Hernandez' arrest. We therefore grant the petition for writ of certiorari, quash the circuit court's order denying certiorari relief and remand the cause to the circuit court for further proceedings consistent with this opinion.
My Comments: Good ruling. Often times bad rulings from ALJs go unchecked because the cost of an appeal outweighs the potential benefit. The DUI defense lawyers in this case did an excellent job and the appeals judge made the right decision.
Defense expert can not rely on preliminary breath test result
In most states the preliminary breath test (PBT) result is not admissible in DUI cases. The PBT is typically inadmissible because it is inaccurate. However, when a PBT is exonerating, and an evidentiary breath or blood test is incriminating, the defense may want the PBT admitted into evidence.
The Opinion: The Court of Appeals of Wisconsin in State v. Fisher, decided against the admission of a defense-favorable PBT on 9/10/08.
Quotes: A general description of the difference between a PBT and an evidentiary breath test:
Unlike the Intoximeter, the PBT is not tested for accuracy either immediately before or after a test. The intoximeter is a “quantitative” test and the PBT is a “qualitative” test.
Clearly, the former test calls for an accurate “measurement” that is, after all, the definition of the word “quantitative”-something “involving the measurement of quantity or amount.” Webster's Third New Int'l Dictionary 1859 (3d ed.1993). A qualitative analysis, as any chemistry major would know, merely determines the constituents of a substance without any regard to the quantity of each. Id. at 1858. Thus, as succinctly defined in the administrative code, the qualitative breath test is for the purpose of determining only whether alcohol is present or not.
Quotes: Why the defense expert was not allowed to proffer an opinion based on the PBT:
Dr. Steele can compare the PBT result with a blood test result 100 times and be convinced as to the reliability of his absorption curve analysis. But is his analysis valid? We must answer the question “no” because Fischer's PBT result is not an empirically tested measurement.
Why allow an expert, one with a science background, to rely on a test whose accuracy at the time of the test cannot be authenticated as a foundation for an opinion? That makes no sense.
Discussion: In DUI cases experts often “backdoor” inadmissible evidence into their opinion. Experts on both sides of the “v” do it. Both prosecutors and defense lawyers at times knowingly allow and even encourage such testimony. In this case, as an example, a defense lawyer could ask the expert generally:
“Given your review of the materials in this case and your whole knowledge of the facts, do you have an opinion as to whether it is possible that Fisher could have been below the legal limit.”
Without qualifying that the expert can only form such an opinion by presuming that the PBT is accurate (an assumption that no honest expert can make), the answer would be garbage and the legal ethics of the question questionable.
Drug DUI news: Rx med affirmative defense fails
North Dakota has a law that absolves people of criminal culpability if they drive impaired by prescription medications when used as directed. This case tests the reach of that law and what must be provided and proved for a DUI defendant to succeed with such a claim.
Relevant excerpts from the opinion:
We begin by noting that there is no argument on appeal that Bitz was not impaired on November 21, 2007; rather, the crux of her argument involves whether over-the-counter medications are included within the purview of N.D.C.C. § 39-08-01(1), and whether there was sufficient evidence that she violated this section. We also note that no evidence was introduced at trial to establish which drug or drugs predominately caused Bitz's impairment on the road. Further, the State did not introduce evidence linking the medications found in her urine with her impairment. Notwithstanding the shortcomings in the evidence, the language of the statute and the latitude accorded the jury in drawing reasonable inferences from the evidence requires us to conclude that a rational factfinder could have found Bitz guilty of driving while under the influence of drugs.
At trial, the forensic scientist testified to the effects and classifications of the drugs found in Bitz's urine sample. Tramadol is a prescription analgesic used to treat pain. Two bottles of Tramadol prescribed to Bitz were admitted into evidence, and neither contained a disclaimer warning against driving after taking the medication. No testimony was presented by the prescribing practitioner. The forensic scientist testified that acetaminophen, ibuprofen, and naproxen are all over-the-counter analgesics, most commonly found in Tylenol, Motrin, and Aleve, respectively. Diphenhydramine or dimenhydrinate is most commonly found in Tylenol PM and Benadryl.
Bitz argues there was insufficient evidence to sustain her conviction for driving under the influence, because she met her burden of proof under N.D.C.C. § 39-08-01 by showing her impairment was caused by a medication prescribed by a physician, and she took that medication as instructed by the prescription. Bitz preserved the issue of sufficiency of the evidence for appellate review.
Likewise, a person can be under the influence of drugs even if the drugs taken by that individual were over-the-counter medications, so long as the drugs or substances had an intoxicating effect or impaired the person's ability to operate a vehicle. While Bitz argues her intake of over-the-counter medications is irrelevant to her ability to drive, the legislature's focus on limiting the defense to prescribed drugs, our rules of statutory interpretation, and our prior legal analysis in Thornton on the scope of intoxicating substances, indicate otherwise.
Analysis: As with any affirmative defense in DUI cases, it is highly improbable to succeed unless presented with strong factual backing. This case could have succeeded on the facts if the prescribing doctor was brought in to testify and eliminated the non-prescription drugs as contributing factors to impairment.
An aside: If the goal is to prevent accidents, then why should prescription medication have its own affirmative defense? I wonder this in the context of alcohol impairment cases, which totally lack a mens rea (guilty mind) element. In other words, a drunk driver does not need to intend to drive drunk nor possess any knowledge that he is impaired. This law from North Dakota seems like a double standard that favors big pharmacy. It also seems like an impossible judicial standard to govern.
Thirty-five years in prison for drug-related DUI deaths
The Mississippi Court of Appeals has issued a lengthy opinion in the case of the horrific drug-related DUI deaths of four young college students. The driver, on a cocktail of impairing prescription drugs was ultimately convicted of four counts and sentences to consecutive sentences of 15 years on each. Some of the time was suspended, leaving her with a total of 35 years in prison.
There are more questions answered in the opinion (cited with link below) than this post addresses. Some of the major ones are quoted separately below.
Excerpts from the case and holdings:
There are several important holdings in this opinion, which are addressed one at a time below.
Issue: Was Testimony of a blood test result taken outside of 2 hours improperly admitted into evidence?
Holding: Based on our review of the record, we find no evidence of deliberate delay on behalf of Officer Brantley. The evidence shows that Officer Brantley was not immediately aware that Teston was under the influence, and he was not immediately aware of her involvement in the accident. Further delay was caused by the time it took for the tow truck to arrive, the travel time to the police station, and the travel time to the hospital. Also, we do not find any evidence that Teston was prejudiced by the lapse in time. Thus, we find that the trial court did not err by admitting Teston's blood test results into evidence.
Issue: Was the state’s expert improperly allowed to testify to an opinion of the defendant’s level of impairment at the time of the accident?
Holding: The trial court is in the best position to determine relevancy and reliability of expert testimony, and in this case, the trial court determined that Dr. Barbieri's testimony was relevant and reliable. Based upon a review of the record, we find that the trial court did not abuse its discretion by allowing Dr. Barbieri's expert testimony.
Issue: Did the prosecutor improperly comment on the defendant’s right to remain silent?
Holding: When viewed in the context of the entire argument, the disputed statement--"She can't come here with a straight face and tell you I lied for whatever kind, sweet reason counsel opposite might have you believe"--is not a comment on Teston's failure to testify. The prosecutor simply responded to the comments that defense counsel made during closing argument. Therefore, we find that the trial court did not err by denying Teston's motion for a mistrial.
Issue: Were circumstantial admissions of the defendant improperly admitted into evidence to establish that she was the driver of the vehicle?
Holding: Additionally, Officer Brantley testified that Teston identified herself as the driver of the black Honda. Teston also argues that although she identified herself to Officer Brantley as the driver of the black Honda, Officer Brantley did not ask her if she was driving at the time of the accident. We find that this is of no consequence. Based on our review of the record, we find that the State presented direct evidence identifying Teston as the driver of the black Honda, and we did not find any evidence in the record that would refute this fact. Thus, we find that the trial court did not err by denying Teston's circumstantial-evidence instruction.
Issue: Is an actual prison sentence of 35 years excessive for the deaths of four young people?
Holding: In this case, Teston was found guilty on all four counts and was sentenced to serve consecutive terms of fifteen years on each count, totaling sixty years, with thirty years suspended and five years of post-release supervision, leaving Teston with thirty years to serve. We find that Teston's sentence is not grossly disproportionate to the crimes committed because the trial court sentenced her within the guidelines provided by the statute. Thus, we find that Teston's argument is without merit.
My Analysis: This is a gut-wrenching case, and one that could happen to anybody taking prescription medications and driving around. It shows that alcohol is not the only (or even primary) danger in impaired driving cases anymore. Thanks to the efforts of the pharmacy companies and the tolerance of the federal government for their ads, we have created a whole new breed of dangerous drug-impaired driver.
DUI Practice Tip: It is becoming more and more important for attorneys involved in impaired driving litigation to master the tools of detection of drug impaired drivers. I highly recommend studying the DRE manuals, and researching the effects of prescription drugs on driving.
DUI manslaughter not "crime of violence"
The United States Court of Appeals, Ninth Circuit, has held that a California conviction for DUI/manslaughter, in the absence of gross negligence, didn’t qualify as a “crime of violence” for the purpose of enhancing a sentence for previous post-conviction deportation for a felony.
The Cite: United States Court of Appeals, Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Javier GOMEZ-LEON, Defendant-Appellant. No. 05-50138. Argued and Submitted March 4, 2008. Filed Sept. 24, 2008.
Relevant quotes from the case:
Gomez was not convicted of ordinary involuntary or vehicular manslaughter, as California defines it; he was convicted of vehicular manslaughter while intoxicated, a particular type of manslaughter. Some states have created special statutes to punish drunk driving homicides as “a number of states have enacted statutes creating the new crime of homicide by automobile.” See 2 LaFave, supra, § 15.4(e) (stating that such a statute is “related to the crime of manslaughter but is not manslaughter proper”). Typically, such statutes require proof of intoxication while driving a vehicle and are punished less severely than manslaughter. 2 LaFave, supra, § 15.4(e). Commensurate with lesser punishment is a lesser mens rea requirement, where the state often permits conviction under the statute when the defendant has a mens rea that is less than recklessness…
Since Gomez's conviction under California Penal Code section 192(c)(3) (1998) for “vehicular manslaughter while intoxicated without gross negligence” is an offense that requires only proof of ordinary negligence, it cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Therefore, the district court erred in finding that it was a “crime of violence” for the purposes of applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Neither Gomez's conviction for a “drug trafficking offense” nor his conviction under California Penal Code section 192(c)(3) justifies the application of a sixteen-level enhancement under U.S.S.G. § 2L1.2(b). Consequently, Gomez's sentence is vacated and the case is remanded to the district court for re-sentencing in a manner consistent with our opinion.
Analysis and significance: This case is sure to touch a nerve among those debating the illegal immigration issue. On the one side is the argument that this guy is a felon. He was here illegally. He was deported. He came back. He then killed somebody, albeit by negligence.
On the other hand is the argument that a DUI manslaughter is not an intentional killing in the conventional sense, and a person, legally in the country or not, should not be punished disproportionally by virtue of who he or she is, and that we should all be punished based only on what we have done.
DUI defendant who fled with a good plea agreement on the table
The Arizona court of appeals has granted review but denied relief in a DUI injury case where the defendant failed to take a favorable plea agreement, failed to appear in court, and was later apprehended. The defendant blamed his attorney, saying essentially that the attorney didn’t adequately advise him of the plea agreement. He claimed that if he had been properly advised, he would have taken it and not taken off.
The Cite: Court of Appeals of Arizona, Division 2, Department A. The STATE of Arizona, Respondent, v. Jose Luis Velasquez ORDUNA, Petitioner. No. 2 CA-CR 2008-0048-PR. Nov. 13, 2008.
The facts as taken from the opinion:
In 2001, Orduna was indicted on charges of aggravated assault with a deadly weapon or dangerous instrument, criminal damage, leaving the scene of an accident involving injury, driving under the influence of an intoxicant (DUI), driving with an alcohol concentration of .10 or more, and driving under the extreme influence of intoxicating liquor. The state offered a plea agreement allowing Orduna to plead guilty to aggravated assault, criminal damage, and misdemeanor DUI but withdrew that offer when Orduna absconded and did not appear at the change-of-plea hearing....
After he was apprehended, Orduna moved for an order directing the prosecutor to reinstate the plea offer. He asserted his counsel had inadequately explained it to him and suggested that he would have accepted the plea agreement and not absconded if counsel had been effective. The trial court denied his motion after an evidentiary hearing, and a jury found Orduna guilty of all charges except leaving the scene of an accident. The court sentenced him to concurrent terms of imprisonment, the longest of which was six years...
Analysis and commentary: It is extremely common in criminal cases, especially felonies, that the defendant blames the attorney upon conviction. While it is important to always work in the client’s best interest, it is also important to make sure that the client’s file is documented with every conversation.
For highly favorable plea agreements, it is also a good practice to put the terms of the agreement in writing and present it to the client. This will help avoid a misunderstanding about the terms of the plea agreement, and will also protect the lawyer in the even the client later claims that the agreement wasn’t presented.
This case occurred in Arizona. In Arizona criminal cases, a “Donald” hearing is available. At that hearing, the terms of the plea agreement are presented to the defendant on the record in open court, and the deadline for accepting the plea agreement is also stated. This protects the defense lawyer from claims such as the defendant in this case made. More importantly, it protects the defendant from an attorney who may have forgotten to explain the terms or the deadline.
As always, the most important thing to keep in mind when representing DUI clients is communication. It is better to repeat yourself several times than to risk your client either not hearing your message or not understanding it.
Missouri DUI license case - metabolic curve testimony
In a Missouri DUI license suspension case, the Missouri Court of Appeals upheld the admissibility of evidence concerning the metabolic curve of the driver. This scientific principal goes by a variety of different names, the most common of which is probably “retrograde extrapolation.” The idea is to predict an alcohol level at a point other than that at which the blood or breath test was taken.
The Cite: Krieger v. Director of Revenue, --- S.W.3d ----, 2008 WL 4200774, Mo.App. W.D.,2008. September 16, 2008
Relevant excerpts from the opinion:
In his sole point on appeal, the Director asserts that Krieger did not rebut his prima facie case. In particular, the Director contends that the circuit court erred in admitting the results of Martinez's calculation of Krieger's blood alcohol content based upon the “metabolic curve.”
Martinez based his “metabolic curve” calculation upon information that Krieger stopped drinking only five to ten minutes before she was stopped by the police.
Analysis: Most DUI defendants are under the mistaken impression that drinking a lot right before the stop hurts their case. Especially in breath test cases, the opposite is often true. The closer in time the last drink to the application of a breath test, the more likely it is that the person was still in the absorptive phase of alcohol metabolism. In the absorptive phase, studies show that a person’s average partition ratio is lower than the 2100:1 that all breath test devices are programmed to expect. Therefore, as long as the DUI defense lawyer is allowed to present this evidence, drinking close to the time of the stop is helpful in breath test cases.
The trend amongst states is to legislate out the defense’s ability to present retrograde testimony. The most common way of doing so is to make any alcohol level above the legal limit within 2 hour of driving per se illegal. In an extreme example, a person could chug a pint of vodka, immediately get into the car, and immediately get pulled over leaving the bar parking lot two minutes later. At the time of driving the person could be under the legal limit of .08. An hour later that same person, having consumed no additional alcohol, could be above a .20.
Aside – DUI cases are not about fairness: It hardly seems fair to prosecute a person from “drunk driving” when they weren’t drunk or impaired while behind the wheel. The short answer is that the law doesn’t care about the reality of impairment, only what fits into the purview of the statute under which prosecution is pursued. All DUI lawyers know this already, but for my non-attorney readers and the young ones who are still under the illusion of fairness, this aside is for you.
Alabama Federal Case: Miranda and arrest issues
This case involves a DUI related contact with the police, but ultimately an arrest on more serious federal weapons charges. What is interesting here is not the federal value as precedent on Miranda issues (which were the crux of the opinion), but the procedure quoted below.
The Cite: United States Court of Appeals, Eleventh Circuit. UNITED STATES of America, PlaintiffAppellee, v. William Lenories WRIGHT, Defendant-Appellant. No. 08-10935 Non-Argument Calendar. Nov. 12, 2008.
Relevant excerpts from the case:
Hendrix smelled alcohol on Wright's breath and noticed that Wright's speech was slurred. Because of the rain, mud and heavy traffic, Hendrix could not conduct a field sobriety test. However, he did conduct a preliminary breath test, which showed that Wright's blood-alcohol content was .11, over Alabama's legal limit. Hendrix learned that Wright's driver's license was suspended and that Davis did not have a driver's license…
Because neither Wright nor Davis could drive the truck, Hendrix impounded the vehicle and called for a wrecker. Hendrix placed Wright in his patrol car to transport him to the station where he could conduct a field sobriety test under a canopy. Hendrix explained that, although he knew Wright was under the influence of alcohol, he did not arrest Wright for DUI at the scene because he had not yet performed a field sobriety test…
Hendrix returned to the truck to perform an inventory search before the wrecker arrived. Hendrix asked Davis, who was covering herself with a jacket and a blanket, to get out of the truck. As Davis exited the vehicle, Deputy Kevin McNatt, who was assisting Hendrix, pulled away the jacket and blanket, revealing a pistol lying in the middle of the bench seat…
The R & R concluded that once Wright admitted he did not have a permit for the firearm, probable cause existed to arrest him. Thus, the second search following his arrest, which uncovered the Crown Royal bag containing drugs, was incident to Wright's lawful arrest. The R & R also concluded that the brief time between the initial search and the reading of the Miranda rights did not render Wright's post-Miranda statements inadmissible…
Wright objected to the R & R. After de novo review, the district court overruled Wright's objections, adopted the R & R and denied Wright's motion to suppress…
Discussion: It is interesting to see the differences in when a police officer will deem a person to be under arrest for drunk driving. In some jurisdictions, an odor of alcohol and bad driving seems to be enough. In others, they feel that they need some confirmation via a field sobriety test or a preliminary breath test.
Request for other attorneys: If you have had a case where a DUI arrest was made on just an odor of alcohol and a traffic infraction, and that case stood up to a motion to dismiss, please comment or email me privately. I am conducting an informal survey of what police agencies from around the world deem sufficient grounds to place a person under arrest for DWI (as opposed to merely detaining for further investigation).
California DUI Case - Is there a right to plead guilty?
The California Court of Appeals has ruled that, essentially, a judge did not harm a DUI defendant’s case by refusing to accept a plea of guilty. This case has not been officially published in California.
The Cite: Court of Appeal, Sixth District, California. The PEOPLE, Plaintiff and Respondent, v. Gabriel COLIN, Defendant and Appellant. No. H032202. (Santa Cruz County Super. Ct. No. F14255). Nov. 12, 2008.
Excerpts from the opinion:
Milligan asked the city court on March 20, 2007, to enter a guilty plea to the DUI and other related citations. The city court informed Milligan that it wished to confer with counsel for the State, who was out of the office that day, before it accepted Milligan's plea. The State moved to dismiss the DUI and related citations approximately a week later. The city court granted the State's motion over Milligan's objections.
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The court in Peplow determined that Montana statutes confer upon a defendant the right to plead guilty to the crime charged "before or during trial," pursuant to § 46-16-105, MCA. Thus, the court concluded that the district court had erred in refusing to accept Peplow's guilty pleas to several pending charges at the beginning of the trial. Peplow, ¶ 43. This conclusion did not end the inquiry. The Court proceeded to address whether the district court's error in denying Peplow his statutory right to plead guilty prejudiced Peplow's defense to the other pending charges. Peplow, ¶¶ 46-56. The Court deemed that the error constituted a type of trial error susceptible to harmless error analysis. Peplow, ¶ 46.
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The court in Peplow held that the district court's refusal to accept his guilty plea prejudiced his defense. Peplow, ¶ 56. Peplow attempted to enter his guilty plea to two of his five charges pending in the district court. Peplow, ¶ 12. The jury ultimately found Peplow guilty on all charges. Peplow, ¶ 16. Here, by contrast the State moved to dismiss the DUI charge against Milligan in city court. The city court granted the motion and dismissed the DUI charges. Milligan fails to explain how the city court's refusal to accept his guilty plea to the DUI charges prejudiced him with respect to the final resolution of the DUI charges in light of the fact that the city court dismissed the DUI charges. We can see no prejudice under these circumstances and deem harmless any error that the city court may have committed in denying Milligan his statutory right to plead guilty to the DUI charges.
Analysis and Opinion: There are plenty of reasons why a DUI defendant would want to plead guilty, and why the prosecutor may not want that to happen. The most obvious reason is so that double jeopardy attaches and the defendant can’t be tried again.
Some states have cases or statutes designed to thwart the double jeopardy angle when a defendant pleads guilty while hiding information such as the existence of an allegeable prior conviction. Nevertheless, a plea of guilty often times shuts down any inquiry that the prosecution may make into the defendant’s history.
Another reason that a DUI defendant might want to plead guilty to a charge is so that a jury would not hear about it when deciding the more serious counts in a multi-charge prosecution. For example, if a person is pulled over for misdemeanor DUI and it is discovered that he has a trunk full of drugs, he may plead to the less serious DUI to try to prevent the jury from hearing that he was also drunk when it decides his fate on the felony drug charges.
A defendant’s right to plead either guilty or not-guilty is sacred. It is my strong belief that if the State brings criminal charges against a citizen, the State should be ready with all of the information. In other words, if the prosecutor alleges DUI, they should hold off filing the charges until they ascertain whether prior DUI convictions exist. If they exist, then allege them immediately. If not, don’t whine when a defendant tries to plead guilty that more time is needed to investigate the person’s criminal history.
Virginia DUI Caselaw Update: A lesson in deadlines
The Cite: Court of Appeals of Virginia, Chesapeake. Michael Andre ARTIS v. COMMONWEALTH of Virginia. Record No. 2472-07-1. Nov. 12, 2008.
Intro: In an unpublished DUI opinion, the Virginia Court Of Appeals affirmed a conviction when the main basis for appeal was that the trial judge would not entertain a constitutional challenge not timely filed.
Excerpts from the opinion:
We granted Artis's petition for appeal on the sole question whether "the trial court abused its discretion in applying Code § 19.2- 266.2(A)(iii) and Code § 19.2-266.2(B)." Artis acknowledges that he did not comply with the notice requirements of Code § 19.2-266.2. He argues, however, that the trial court erred by failing to consider the motion under the "interests of justice" exception contained in the statute. We disagree and affirm the judgment of the trial court.
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At the conclusion of the presentation of the Commonwealth's case, in arguing his motion to strike, Artis asserted for the first time that his 1998 DUI conviction was not valid to support the offense charged, as a second or subsequent offense.
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Artis argued that even though he failed to give the required notice of his intent to challenge the local code section's constitutionality, the ends of justice required the trial court to consider that issue.
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Under Code § 19.2-266.2, defendants are required "to take certain procedural steps in order to exercise or vindicate [their] constitutional rights." Magruder v. Commonwealth, 275 Va. 283, 300, 657 S.E.2d 113, 121 (2008). "Such requirements are not unconstitutional but 'serve[ ] legitimate state interests in protecting against surprise, harassment, and undue delay.' " Id. (quoting Michigan v. Lucas, 500 U.S. 145, 152-53 (1991)). We have refused to consider a challenge to the constitutionality of a statute where a motion for dismissal of warrant or indictment on the ground that a criminal statute is unconstitutional was not properly presented to the trial court in compliance with Code § 19.2-266.2. See Johnson v. Commonwealth, 37 Va.App. 634, 644-45, 561 S.E.2d 1, 6 (2002); Morrison v. Commonwealth, 37 Va.App. 273, 279, 557 S.E.2d 724, 727 (2002). The requirement that such a motion be made and heard before trial serves the valid purpose of preserving the Commonwealth's right to appeal an adverse ruling. See Code §§ 19.2- 398(E) and 19.2-400; Upchurch, 31 Va.App. at 53, 521 S.E.2d at 292.
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Artis's "interests of justice" argument also fails. Notwithstanding the validity of any provision of the local code, each warrant, the one charging the instant DUI offense, and the one charging the underlying 1998 prior DUI offense, describes the offense charged and cites both the state code section, 18.2-266, and the local code section, 26-72. Accordingly, in each instance Artis was properly informed of the nature and character of the charge against him. He was, in fact, convicted and sentenced for DUI in violation of Code § 18.2-266, the state statute, which he did not challenge.
The judgment of the trial court is affirmed.
DISCUSSION: This is typical, especially in DUI cases. The DUI defense lawyer must be extremely careful to abide by all deadlines. Because drunk driving cases are so unpopular, and because many trial judges are annoyed in having to deal with DWI cases, don’t expect a “do-over” if you blow a deadline.
This goes for lawyers and also for defendant’s representing themselves.
DUI Law Blog Is Now Live: New mission statement
DUI Law Blog is now live again. For return readers, you will notice that a lot has changed. We have big plans for this blog.
News For Lawyers: First, we intend to cover all of the major DUI news stories from around the country. By news, we don't mean which celebrity was busted, or the latest drunk driving related tragedy to hit the news. There are plenty of other sources already covering that kind of stuff. Our coverage of DUI news will be limited to the political, scientific and legal realms. That means that when a new breath test machine hits the market, we will be there. When a new published or unpublished appeals court case involving DUI is issued, we will be there. When a new peer-reviewed scientific article is published, we will cover that too.
New Case Analysis: We are not a citator service, and we can't cover all of the points in every case. We will try to make you aware of every new case that is out there in all 50 states. Each new case will contain either commentary, analysis, a practice tip, or any combination of those three. As time allows, we will also compare and contrast new cases with the status quo from other states.
Participation Welcomed: DUI lawyers who have something that they either want to say, or want us to discuss, please let us know. If there are new cases that slip through the crack, email us the cite and we will post them. This is especially true for lower court opinions, as they may miss our radar screen, especially at the trial court level.
We are excited to embark on this new project, and hope you will find the information provided on this website useful for your practice (or your case).
Sincerely,
Dan Jaffe
Scottsdale, AZ
Tie the DUI judge down to a ruling: Lesson from Montana DUI Law
The Montana Supreme court, in an unpublished DUI case shows that a vague factual conclusion does not always support an appeal. The lesson to be learned is to always tie your judge down.
The Cite: Supreme Court of Montana. STATE of Montana (City of Great Falls), Plaintiff and Appellee, v. Kimbrli Lavon ROSS, Defendant and Appellant. No. DA 07-0740. Submitted on Briefs Sept. 3, 2008. Decided Nov. 10, 2008.
Despite Ross's claim that the Municipal Court rejected evidence from Officer Scheer that Ross's tires hit the curb as it completed the turn onto First Avenue North, there is no evidence to support this contention. The Municipal Court stated the following in its findings of fact:
The officer also testified that the defendant cut the corner at 15th Street and First Ave N. causing her tires to rub against the curb; the defendant disputed that testimony and the videotape did not show the maneuver.
Contrary to Ross's interpretation, the fact that the court recognized that the videotape did not show the bumping of the curb does not mean that the court thereby rejected the officer's testimony that Ross's tires rubbed the curb. Read in context, it is clear that the court accepted Officer Scheer's testimony on this point. We do note that it would facilitate review of decisions if courts, in their fact finding would make declarative findings of fact, instead of merely reciting what a witness said. Such declarations of fact should, of course, be based upon testimony or evidence before the court.
ANALYSIS AND PRACTICE TIP: Tie the judge down on the record. Make sure that there is not any wiggle room factually when you must appeal under an abuse of discretion standard. DUI cases require follow up.
It surprises me when I see DUI lawyers who otherwise did a great job in a motions hearing blindly accept a vague ruling from a judge. Ask for clarification when it is warranted. If the judge refuses to give it, say something like "Your Honor, I understand your ruling to mean..." and then spell out the conclusion that you need to support your record on appeal. Even if the judge clarifies against your client's interest, you are better off knowing at the trial court level rather than waiting for the Supreme Court to shoot you down. Your client will appreciate that you at least saved him the additional cost of a pointless appeal.
