Warning: Personal breath tests and sleazy DUI advertising
While this DUI blog is normally focused on new caselaw and statutory developments from around the country, an issue has come to my attention that needs immediate attention from both DUI lawyers and the public.
Some DUI attorneys are starting to advertise and even sell personal breath test devices. It has come to my attention that these attorneys are endorsing these devices as a safe and effective way to avoid a DUI, even through the use of local media.
If you are planning on drinking and then driving, DO NOT rely on a personal hand-held breath test device. They are not accurate and could set you up to be arrested.
I have a serious problem with a DUI defense lawyer selling or giving away personal breath test devices. Here are the problems from my perspective:
- How can a lawyer argue that breath test technology is unreliable if he sells them? A DUI defense lawyer's job is to challenge the validity of breath testing technology. Anybody who is truly knowledgeable about breath test devices knows that the technology is unreliable at its best. We also know that hand-held breath test devices are extremely inaccurate. In most states, the results are not even admissible in court. For a DUI lawyer to endorse such a device undermines that lawyer's credibility to later argue in court against better breath test technology.
- Selling breath test devices makes other attorneys look bad because other attorneys who are doing their job are constantly making arguments against the breath test. Any lawyer who cares about his or her clients and has experience in the trenches of DUI court will be offended by this gimmick.
- It exposes the public to actually getting a DUI by relying on the results of an inaccurate device. It also, at least tacitly, endorses having drinks and then driving. It creates the impression that if the devices says you are okay to drive, then you are legally safe from a DUI. This is a severely misleading notion. Even if the device is totally accurate (which it isn't) at the time of the test, you may still be in the absorptive state of alcohol metabolism. If you are, then from the time you blow into the machine to the time you get pulled over for DUI, you may well absorb enough alcohol into your system to be above the legal limit. The only way to be sure to avoid a DUI is to not drive at all after drinking.
- Advertising a conflict of interest? These devices are actually being sold with law firm's names, logos and phone numbers engraved on them. If you use one, then get a DUI and call that firm, they essentially provided you with your defense (a poor one... "I relied on the hand-held breath test device). If you then call them to defend you (which they are inviting you to do by putting their name and number right on the thing), do you think your best interests will be served by that firm?
There are some disgusting marketing practices out there, and in my opinion this is the one, in the DUI arena, that takes the cake for 2008.
Florida Supreme Court's test for uncounseled DUI convictions
In Florida v. Kelly, the Supreme Court of Florida discusses what a convicted person must show in order to shift the burden of proof to the State when the defense asserts that prior convictions were not counseled.
The case, decided on December 30, 2008, has a deep discussion of the issue, and a well thought out dissent. Goes through an in-depth federal analysis as well, so is a worthwhile read for DUI defense lawyers who practice anywhere in the United States.
The majority holding (footnotes from opinion omitted):
Consistent with the views we have expressed in this opinion, we answer the rephrased certified question as follows: Article I, section 16 of the Florida Constitution, as influenced by Florida's prospective-imprisonment standard, prevents the State from using uncounseled misdemeanor convictions to increase or enhance a defendant's later misdemeanor to a felony, unless the defendant validly waived his or her right to counsel with regard to those prior convictions. However, the State may constitutionally seek the increased penalties and fines short of incarceration associated with the defendant's relevant number of DUI offenses. In accordance with this holding, we adapt our Hlad/Beach framework along the following lines. To meet the initial burden of production, the defendant must assert under oath, through a properly executed affidavit that:
(1) the offense involved was punishable by imprisonment;
(2) the defendant was indigent and, thus, entitled to court-appointed counsel;
(3) counsel was not appointed; and
(4) the right to counsel was not waived.If the defendant sets forth these facts under oath, then a burden of persuasion shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. Cf. Beach, 592 So.2d at 239.
For these reasons, we approve the decision of the Fourth District Court of Appeal, but disapprove any of its reasoning that is inconsistent with our modified framework. Accordingly, we remand to the Fourth District for further proceedings consistent with this opinion.
My thoughts: This is a road-map for judges taking pleas. If a judge follows this opinion when accepting pleas, the defense will never be able to meet the threshold after future arrests.
Continue Reading...Virginia DUI appeal thrown out on jurisdictional defect
In a Virginia DUI appeal, the Virginia Court of Appeals just shot down the petition because of a procedural/jurisdictional defect. The case, Woody v. Commonwealth, can be found in the additional section to this post and was issued on December 30, 2008.
Excerpts from the opinion:
In this case, Woody filed a notice of appeal within the mandatory thirty-day time period, but he never named the County as a party--neither as an appellant nor as an appellee. There is no doubt that the County is an indispensable party. It is clear from the record and the trial court's October 30, 2008 order that the County was the prosecuting authority for the driving while intoxicated charge. It is also clear from the record that Woody named the Commonwealth of Virginia as appellee in his notice of appeal, petition for appeal, and opening brief of appellant. Further, in Woody's certificate to his notice of appeal, Woody specifically stated, "[t]he name of appellee is The Commonwealth of Virginia."
The County obviously has a strong interest in prosecuting crimes such as driving while intoxicated because these violations present a real danger to the health and safety of its citizens. Having prevailed in the trial court, the County clearly has a substantial and immediate interest in opposing Woody's appeal. Further, the County bears the burden of the costs of the prosecution and, pursuant to Code §§ 19.2-340 and 46.2-1308, the County receives the benefit of any fines the court imposes as a punishment. Thus, the County's "interest[ ] in the subject matter of the suit, and in the relief sought, [is] so bound up with that of the other parties, that [its] legal presence as [a] part[y] to the proceeding is an absolute necessity, without which the court cannot proceed." Asch, 251 Va. at 91, 465 S.E.2d at 818.
---
Woody argues that by serving his notice on the Commonwealth's Attorney he effectively joined the County as a party. However, this case involved two simultaneous prosecutions--one on behalf of the Commonwealth (the refusal charge) and one on behalf of the County (the DUI charge). While the Commonwealth's Attorney for Amherst County prosecuted both, in doing so she represented both the County and the Commonwealth. Even though she received a copy of the notice of appeal, there was nothing in the notice that would alert her or the County to the fact that Woody intended to appeal the DUI conviction as well as the refusal conviction.
Woody also maintains that the "failure to strictly observe [these requirements] is an 'insubstantial defect' and does not deprive this Court of jurisdiction over his appeal because there can be no doubt that he is appealing a judgment from the Amherst Circuit Court to the Court of Appeals." Supp. Appellant's Br. at 4. Even though Woody concedes the mandatory nature of the time requirement and the statements that must be made in the certificate, "he avers that captioning information is not a jurisdictional matter where, as in the case at bar, the opposing party and the Court of Appeals can have no doubt as to the issues it is being asked to address on appeal." Id. at 5.
Analysis: This case is a good example in DUI cases of how detail-oriented an attorney must be. Here, it is obvious who was a party to the lawsuit, but because the proper hoops were not jumped through, Mr. Woody is out of luck.
I always think it is best to ask somebody who has been there before when doing something I am unfamiliar with in the law. Other defense lawyers and court clerks make the best resources for procedural matters. It is also prudent to leave a paper or email trail of communication with opposing counsel when notice may be an issue.
Continue Reading...DUI juror bias results is reversal in Florida
The defense moved to strike the potential juror for cause. The prosecutor asserted that she had inquired "if [he] would evaluate everyone equally before he made that decision, and he said he would, and he would evaluate everyone fairly. That he would hope that law enforcement officers would be more credible, which, I think, is a feeling everyone in society should have." The trial court denied the challenge for cause "simply because [the potential juror] said that he could be fair." In view of the denial of his strike for cause, defense counsel requested an additional peremptory challenge to exercise on the subject juror. The trial court asked if the next juror in line was acceptable to the defense and defense counsel answered affirmatively. The prosecutor, however, insisted on the use of the subject juror primarily because the defense had exhausted all of its peremptory challenges. The trial court announced the line-up of jurors, including the challenged juror, and asked if the parties had any objections. Defense counsel stated that the jurors announced were not acceptable and objected to the panel as a whole. The objection was acknowledged and the jury sworn in. We conclude that defense counsel properly preserved the error for review. The Florida Supreme Court has warned that the "statement of a juror that he can readily render a verdict according to the evidence, notwithstanding an opinion entertained, will not alone render him competent if it otherwise appears that his formed opinion is of such a fixed and settled nature as not readily to yield to the evidence."Discussion: I see this all the time in court, especially with young prosecutors. They think that all they need to rehabilitate an obviously biased juror is to get the juror to say "I can be fair and impartial." Some judges still buy this, not realizing that it subjects them to reversal if the record is properly preserved. The prosecutor, wanting the trial win badly, doesn't realize that it subjects him or her to having to retry the case. The good and fair prosecutors (the most ethical ones) will agree to toss a juror for cause whenever there is the slightest hint of bias.
Field sobriety testing and NHTSA compliance
In Ohio v. KRUMPELMAN, decided on December 19, 2008, we have a really good example of a very weak attack on standardized field sobriety testing. It is the types of arguments made in this case that cause lawyers to lose credibility with judges, prosecutors and juries. The DUI defendant here is essentially arguing that unless the field sobriety tests are given verbatim from the guidelines that the officer has not complied with the regulations.
Excerpts from the opinion:
In her second assignment of error, Krumpelman argues that the trial court should have suppressed the results of the three field sobriety tests administered by Steele because they were not performed in substantial compliance with the NHTSA manual. We disagree.
In support of this, she quotes the transcript where Steele said, "I have them stand facing me with their hands down at their sides. Then I ask them if they wear any glasses or contacts, or anything that they have medical conditions for, or anything like that. Once I do that, I check to make sure the pupil sizes are dilated properly." In her quotation of the transcript, however, Krumpelman omits the second sentence--and does not indicate that the sentence has been omitted by ellipses; that sentence reads, "I explain to them what I'm going to do at this point." Under these circumstances, we reject Krumpelman's argument on this point.
Regarding the One Leg Stand test, the basis for the argument is that the instructions require 114 words to be spoken and that Steele "failed to give 43% of the required instructions." The same is true with the Walk and Turn test, except that the math changes--with Krumpelman arguing that Steele omitted "49% of the required instructions."
We summarily reject the argument that substantial compliance can be resolved at the end of a mathematical equation. In her brief, Krumpelman sets out the instructions as they existed in the 2006 NHTSA testing standards. She then strikes through those words that she claims Steele failed to intone during the stop. Other than the percentage discrepancies, Krumpelman does not argue how Steele did not substantially comply with the NHTSA requirements or how the words left out were essential to establishing substantial compliance.
Analysis: Any time you have to count words in a transcript and, without cross on the number of words used, hang and argument on the word count, the argument is weak.
DUI prior time excluded while defendant in jail
In a South Dakota DUI case, South Dakota v. Powers, decided on December 10, 2008, the Supreme Court of South Dakota held that Mr. Power’s prior DUI conviction which was outside of 10 years could lawfully be used for sentence enhancement purposes because during the intervening period he was incarcerated. In South Dakota, the time you spend in jail or prison for a DUI does not count towards the 10 year look-back period.
From the opinion:
The second sentence of SDCL 32-23-4.1 plainly states that the ten-year period excludes any period of incarceration for a prior violation of SDCL 32-23-1. This language does not require that the period of incarceration must relate to the oldest violation. Instead, the language requires the exclusion of any period of incarceration for any violation of SDCL 32-23-1. Therefore, Powers's twenty-one month incarceration for the 2002-2003 convictions was correctly excluded from the calculation, and the 1996 conviction was properly considered in determining the number of Powers's prior convictions.
Analysis:
In DUI cases throughout the country, the look-back period during which prior convictions may be used to enhance a current sentence is trending upwards. My prediction is that within the next decade, some states will adopt a lifetime look-back period even for misdemeanor DUI convictions.
Prosecutors, judges and most of the public take the stance that if you get one DUI it could be an accident or a fluke. However, most people should learn their lesson after a single DUI arrest.
In this case, Mr. Powers was on his fifth DUI arrest. There are not many judges in the country (heck, there aren’t many DUI defense lawyers) that feel that a 5-time DUI defendant should be given a break. South Dakota’s exclusion of incarceration for calculation of the look-back period is novel, but it makes sense in many respects.
As DUI sentences grow longer and longer (some states, like Arizona, incarcerate people for 45 days or more on some first offense DUI cases), people are released from jail with much less to lose. Having already lost jobs and potentially more while they are in jail or prison, they are more likely to repeat. That’s a fact. The look-back period is meant as a deterrent, and there is nothing to deter while the person is serving time.
Vermont DUI appeal moot after sentence served
In In re Paul Collette, decided on December 12, 2008, the Supreme Court of Vermont has thrown out a DUI convict’s petition for post conviction relief as moot because the petitioner’s sentence was completed and he was discharged from probation prior to the decision being rendered, thereby making the post conviction relief petition moot.
Vermont’s Logic:
That the court had jurisdiction when the PCR was filed does not mean the action was not moot when the trial court considered the motion to dismiss. An action "becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." State v. Lee, 2007 VT 7, 10, 181 Vt. 605, 924 A.2d 81 (mem.). In this regard, the trial court correctly observed that it was obvious there was no relief left to be ordered: assuming the 1992 plea of guilty to DUI-1 was assailable procedurally, petitioner was no longer subject to any enhanced sentenced that could be corrected by court order. Regardless of § 7131 jurisdiction over the subject matter of PCR, the trial court also correctly observed that it could not reverse time and undo a sentence that had already passed. As determined by the trial court, the PCR petition was moot.
My Comments: There are a number of reasons who a person convicted of DUI would want to pursue a dismissal even after completing the sentence. The collateral consequences of a DUI conviction often follow a person for much longer than their sentence. The following are only a few of the reason why I think this opinion got it wrong and the issue is not moot even though there is no more sentence to be served:
- Civil license suspension implications often dog a person convicted of DWI for years;
- Ignition interlock device requirements;
- Employment implications (much harder to find a job with a DUI on your record);
- Immigration consequences;
- Civil rights consequences (in the case of felony DUI cases)
I believe that an otherwise meritorious claim of post conviction relief should not expire upon discharge of probation or sentence as there is a real interest at stake in the litigation.
Minnesota DUI Case: refusal suspension upheld
In a Minnesota DUI case, the Court of Appeals affirmed the implied consent license revocation of a person who did not provide an adequate breath sample. The officer deemed it a refusal when the Intoxilyzer timed out, and that was it.
The Cite: Londo v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).
The relevant facts from the opinion:
After four attempts to get appellant to blow into the Intoxilyzer, the device timed out without an adequate breath sample. Deputy Sturm, who was present during the Intoxilyzer test, informed appellant that because she did not blow into the machine, she was deemed to have refused the test. Appellant was then taken to booking. After a couple of minutes, Deputy Sturm initiated the revocation of appellant's driver's license and again told appellant that she was being deemed to have refused the breath test.
The holding that shows that in civil DUI license proceedings, there is a very low level of protection of drivers’ rights:
Appellant also argues that due process requires Deputy Sturm to have given her a chance to cure her refusal. In support of her assertion, appellant directs this court to State v. Netland, 742 N.W.2d 207 (Minn.App.2007), review granted (Minn. Feb. 27, 2008). In Netland, we held that in the criminal context, due process requires a testing officer to provide an alternative method of chemical testing where a driver is deemed to refuse a chemical test because of an inadequate breath sample but seeks additional time to provide an adequate sample and an alternate mode of chemical testing. Id. at 223.
The district court found Netland similarly unavailing to appellant's argument. We agree with the district court. Appellant's license revocation is a civil matter, whereas Netland was a criminal case. As we stated in Netland, "[t]he minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction." Id. at 219. We have previously held that "[i]n the civil implied-consent context, '[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.' " Id. (citing Smith v. Comm'r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987)). Therefore, Deputy Sturm was not required to provide appellant with an alternative test after appellant was deemed to have refused the breath test.
My rant… er, comments: From a defendant’s perspective, prepared to get *&$#@ed at the DMV. Because the civil standard provides so little Constitutional protection, as long as the administrative law judge crafts the findings of fact to support their conclusion, there is often little even a very skilled DUI lawyer can do to stave off the refusal suspension.
Uncounseled prior Florida DUI can enhance sentence
In a Florida felony DUI case, the District Court of Appeal of Florida has ruled that an uncounseled prior conviction where the defendant was sentenced to time-served can be used as a sentence enhancer in a subsequent DUI prosecution.
The Cite: Florida v. Dunning, District Court of Appeal of Florida, Decided December 10, 2008.
Excerpts from the unpublished opinion:
A defendant may not be imprisoned for any offense, even a misdemeanor, unless he has executed a knowing and intelligent waiver of his right to counsel or was represented by counsel. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). The converse of this statement is also true. That is, a defendant has no constitutional right to counsel to defend against a misdemeanor charge when a sentence of imprisonment is not imposed. Scott v. Illinois, 440 U.S. 367, 373 (1979). If an uncounseled conviction is invalid because it was obtained in violation of a defendant's right to counsel, then the conviction may not be used to enhance a subsequent conviction. State v. Beach, 592 So.2d 237, 239 (Fla .1992). Thus, a court may not enhance a conviction based on an uncounseled prior misdemeanor conviction if incarceration was imposed for the prior conviction. Id.
In this case, Dunning was not sentenced to imprisonment for his prior conviction; he was sentenced to time served. The trial court held that this sentence was equivalent to a sentence of imprisonment, and because Dunning's prior conviction was uncounseled, it could not be used to enhance the subsequent conviction. On appeal, the State argues that the sentence of time served is not equivalent to a sentence of imprisonment because Dunning was not required to serve any time following his conviction.
The Supreme Court of South Carolina has also held that a sentence of time served did not amount to incarceration for purposes of subsequent enhancement. See Glaze v. State, 621 S.E.2d 655, 657 (S.C.2005). The court concluded that the sentence of time served was not imposed in violation of the defendant's right to counsel because it did not actually result in confinement. The court reasoned that the petitioner spent time in jail because he could not post bond, but he was not subjected to any imprisonment as a result of his uncounseled conviction. The court also explained that if the court had sentenced the petitioner to a fine instead of to time served, then his uncounseled conviction could be used to enhance the subsequent conviction and he would still have spent the time in jail prior to trial.
My comments: This case is troubling, as it creates a different standard of justice for those who can’t post bail and are held in custody while their case is pending.
Almost every week in criminal court I see defendants, shackled together and sitting in the jury box of the courtroom waiting for their day in court. Many of them have spent much more time in custody than they would have been sentenced to if they had just pled guilty from the start. Because they exercised their right to due process, there they sit, in chains.
Then they are dangled a carrot from the state. A deal to plead guilty, get credit for the time they served, and get out that day. The alternative is to wait in jail for a trial, or wait another month for another pretrial hearing. They are sometimes even counseled that “time served” is a good thing for them, because it counts against the theoretical maximum if they receive a probation violation. I assume there is also a psychological aspect to wanting to get credit for their jail ordeal.
By nominally agreeing to “time served” the defendant, according to this opinion, is subjecting himself to greater future penalty if he commits another offense. Granted, the idea is to not go out and commit more crimes, but this is reality and in the justice system it is all but expected that a high percentage of defendants who can’t post bail will repeat. (After being held in jail they probably don’t have a job any more. They obviously didn’t have friends or family who were willing to help, or able to.)
This is yet another ruling that stratifies the criminal justice system by class or means, and frankly, it makes me sick.
Audio from Intoxilyzer room admissible in DUI case
Be careful what you say when you are at the police station. Even if you think you have privacy, you may not. The best way to conduct yourself is to assume that everything that you say is being recorded, and everything you do is being filmed. In a Maine DUI case, the Defendant, Mr. Dominique, learned the hard way. The Supreme Judicial Court of Maine just reversed a suppression order, admitting incriminating statements he made in the Intoxilyzer room during a DUI arrest.
The Cite: Maine v. Dominique, Supreme Judicial Court of Maine, Decided on December 9, 2008
Quote from the opinion:
There is no basis from which to conclude that the police officer attempted to circumvent Dominique's Sixth Amendment right to counsel by inducing him to make incriminating statements to a third party and then secretly recording it.
Analysis: Should you expect privacy in the police station during an arrest? Maybe when you are talking with an attorney, but apparently not when you are talking to a non-lawyer family member. It is safe to assume that everything these days is recorded.
Practical observation: Is it just me, or do other defense attorneys notice that when our clients say that an officer made a statement that was abusive or would reflect negatively, there never seems to be a recording?
Virginia DUI warrant error not fatal to prosecution
In a Virginia DUI case, the Court of Appeals of Virginia has ruled that a it is okay to amend a warrant when the original warrant cited the incorrect code when doing so did not actually prejudice the defendant.
The Cite: Dennis v. Commonwealth of Virginia, Court of Appeals of Virginia, Decided December 9, 2008.
Issue:
Dennis contends the trial court erred in amending the warrant to eliminate reference to Newport News Code § 26-8.
Under Rule 3A:4, an arrest warrant must describe the offense charged. This description must comply with Rule 3A:7(a), which deals with the description of the charge that must be contained in an indictment. We have held under this rule that an indictment must give an accused notice of the nature and character of the offense.
Holding:
The amendment of the warrant did not change the nature and character of the offense charged. Dennis claimed no surprise regarding the charge he was facing, nor did he request a continuance to prepare for trial. Thus, the trial court did not err in amending the warrant and in denying Dennis's motion to dismiss.
My Analysis: I often get potential clients who think there is hope of getting their case thrown out because of a technical or typographical error in the documentation. These errors range from mis-documenting their vehicle’s VIN to substituting another defendant’s name in the police narrative.
Most of the time I have to bring them down to earth and tell them that a small technical deficiency is unlikely to change the outcome of the case or create leverage for plea bargaining unless we can show that it either prejudiced their chances at a fair disposition (for example n the case of a mis-documented civilian witness whom we are unable to locate), or that the police officer is dishonest (as in the case of an officer I caught cutting and pasting police reports paragraphs from one defendant to another who forgot to remove the previous defendant’s name).
In DUI cases, there is a strong leaning towards forgiving sloppiness in law enforcement.
Delay in DUI appeals process
In a DUI case, the Kansas Court of Appeals considered the timing of the appeals process, and the question of whether delay in the process violated the appellant’s dui process rights. They weighed four factors and determined that in this case it did not.
The Cite: State v. Bussart-Savaloja, Court Of Appeals of Kansas, Issued December 5, 2008.
Excerpts from the opinion:
Insofar as we can determine, this appeal appears to be the first to challenge timeliness in the appeal process in Kansas appellate courts. Because the reasons for constraining unreasonable appellate delay are analogous to the motives underpinning the right to speedy trial under the Sixth Amendment to the United States Constitution, we examine case law construing and applying speedy trial rights in assessing delays in the state appeal process. See Harris v. Champion, 15 F.3d 1538-1558-65 (10th Cir.1994). We also note that in Harris, the Tenth Circuit Court of Appeals provided a suggested roadmap by which a state appeal process may be determined to be constitutionally ineffective because of unreasonable delay. See 15 F.3d at 1559.
Factor 1:
The first factor in the balancing test is the length of the appellate delay, and only the passage of an inordinate amount of time triggers due process concerns. If inordinate delay cannot be shown, we need not inquire into the other factors. And there is no inflexible length of time that will constitute inordinate delay in every case. For purposes of evaluating length of delay in state courts based on due process precedent from the Tenth Circuit, however, a 2-year delay in finally adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy this first balancing factor and compel examination of the other factors. Harris, 15 F.3d at 1559-60.
Factor 2:
The second factor in the balancing test is the reason for the delay. When addressing this factor, purposeful delay weighs heavily against the government. A neutral reason, such as negligence or overcrowded courts, weighs less heavily but should be considered. The ultimate responsibility rests with the government rather than with the defendant. Barker, 407 U.S. at 531. And reasons such as lack of funding, briefing delay by court-appointed attorneys, and mismanagement of resources by public defender offices are not considered acceptable excuses for inordinate delay. Harris, 15 F .3d at 1562.
Factor 3:
The third factor we must balance in determining whether a due process violation has occurred is the appellant's assertion of her right to a timely appeal. Whether and how strongly an appellant asserts his or her right to a speedy appeal should be balanced with other factors. Barker, 407 U.S. at 528. "The more serious the deprivation, the more likely the defendant is to complain." 407 U.S. at 531.
Factor 4:
The fourth and final factor to be considered is whether the appellant has suffered any prejudice due to delay. Prejudice may result from any of the following: (i) oppressive incarceration pending appeal; or (ii) constitutionally cognizable anxiety awaiting resolution of the appeal; or (iii) impairment of a defendant's grounds for appeal or a defendant's defenses in the event of a retrial. Harris, 15 F.3d at 1563-65.
Ruling:
Having considered the four factors of the balancing test, we have concluded that two factors weigh in favor of Bussart-Savaloja and two factors weigh against her in determining whether she has suffered cognizable constitutional delay. Where the appellant has received a suspension of sentence pending appeal, her liberty was not impacted by the delay. This consideration, coupled with her failure to assert the right and her inability to make a particularized and substantial showing of anxiety, weigh heavily against Bussart-Savaloja. As noted by the Tenth Circuit, the necessity of showing substantial prejudice dominates the Barker test once a defendant has been convicted, and the first and second Barker factors do not compensate for a failure to timely assert the right or allege substantial prejudice. Yehling, 456 F.3d at 1245-46. For these reasons, we conclude that Bussart-Savaloja has failed to establish the delay in the appeal process has deprived her of due process.
My analysis: In most states, the right to timely justice appears to be an illusion. A defendant must complain vigorously prior to the alleged violation, constantly keeping on the court to render speedy justice. Then, the defendant must show that they were actually prejudiced by the delay, which usually comes down to spoliation of evidence or inability to produce witnesses. In general, the system does not care about the real stress a criminal defendant feels.
Continue Reading...Complex DUI license issues
One of the most frustrating parts of dealing with DUI and vehicular cases is the cross-over collateral issues with the Motor Vehicles Department. This new case out of Pennsylvania illustrates the complex interplay of criminal and civil licensing issues.
Excerpts (I highly suggest that you read the whole opinion in this case to get the full import of the complexity of the interplay):
Finally, Licensee's argument that he was not sentenced under the proper section of the Vehicle Code, must be heard on an appeal from his underlying criminal conviction, not before this Court. Licensees may not collaterally attack an underlying criminal conviction during a civil license suspension proceeding. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994). Thus, PennDOT properly imposed a one-year suspension of Licensee's operating privileges because competent, unrebutted evidence established Licensee was not sentenced under 75 Pa.C.S. § 3804(a)(1) and therefore was not entitled to the "no-suspension exception."
Therefore, we affirm the trial court's decision sustaining the one-year suspension of Licensee's operating privileges.
Analysis: DUI cases are extremely complex. The interplay of civil licensing issues and criminal penalties means that the practitioner must constantly keep on top of new developments in DUI law.
Ohio DUI conviction reversed based on bad jury instruction
A really bad jury instruction in an Ohio DUI case resulted in the reversal of the conviction because the jury was essentially told that it was reasonable to infer the defendant’s consciousness of guilt based on his refusal to take the test, even though a reasonable fact finder could have drawn a different conclusion based on the evidence.
The Cite: Ohio v. Orians, Court of Appeals of Ohio, Decided December 1, 2008.
Quotes from the opinion:
Defendant-Appellant, Kevin J. Orians, appeals the judgment of the Tiffin Municipal Court convicting him of operating a vehicle while under the influence of alcohol. On appeal, Orians contends that the trial court erred in its special instruction to the jury regarding his refusal to submit to a chemical test. Orians argues that the trial court's special instruction was not neutral and was slanted in favor of the prosecution. Based upon the following, we reverse the judgment of the trial court.
In his sole assignment of error, Orians argues that the trial court's instruction to the jury regarding his refusal to submit to a chemical test was erroneous because it was not neutral and was slanted in favor of the prosecution. Specifically, Orians contends that the word "intoxication" should not have been used in the instruction; that the instruction unfairly characterized breath alcohol tests as "reasonably reliable"; and, that the instruction suggested that Orians gave no reason for his test refusal, even after being asked. We agree that the word "intoxication" should not have been used in the instruction, and that the instruction prejudicially suggested that Orians gave no reason for his refusal.
Additionally, the trial court's instruction charged the jury that it was reasonable to infer that a defendant's refusal of a chemical test evinced consciousness of guilt "especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt."
Because the trial court here failed to correctly and clearly state the law of the case, failed to provide a neutral instruction, and ignored the Supreme Court's holding in Anistik, we find that the trial court abused its discretion.
My Comments: Good ruling. This trial judge should not have asserted his opinion into the case, and by adopting this jury instruction at least gave the impression that he did.
Practice Tip: The attorney who appealed this case was smart in only focusing on the one good issue instead of throwing in the kitchen sink. I always think it is better to concentrate an argument on one potential winner rather than distract and annoy the bench with side arguments that are not likely to produce results.
Drug DUI Case: Urine quantification not necessary
In Pennsylvania, the Commonwealth need not show a quantity of illegal drugs in a person’s blood to admit a urine sample against them in a prosecution for drug related DUI.
The Cite: Commonwealth v. Williamson, Superior Court of Pennsylvania, Filed December 2, 2008.
Quotes from the opinion:
Prior to trial the lower court suppressed the results of Williamson's post-arrest urine test because the toxicologist's report did not state the amount of the drug found in her blood. The trial court found that 75 Pa.C.S.A. § 1547, a statute that discusses the admissibility of chemical tests in section 3802 prosecutions, created a mandatory requirement that chemical test reports express an "amount" of "alcohol or controlled substance" appearing in the defendant's blood in order for such results to be admissible in this section 3802 case. Specifically, the trial judge held that since the introductory paragraph of subsection 1547(c) [FN5] includes the language, "the amount of alcohol or controlled substance in the defendant's blood," then if the amount of the controlled substance is not contained in a report, that report is inadmissible.
First, the purpose of subsection 1547(c) is to outline the approved procedures and equipment (including qualified personnel, licensed laboratories and facilities) used for chemical testing of a person's breath, blood, or urine for relevant summary and criminal proceedings. Here, Williamson did not challenge the admission of the toxicologist's report on any of these bases. Second, in order to convict a defendant for the offense for which Williamson was charged, the Commonwealth does not need to prove or show the amount of the controlled substance involved in the prosecution. Rather, the offense only requires proof that the defendant was under the influence to a degree that causes impairment. Therefore, because the specific quantity or amount of the drug in the defendant's system is not an element of the offense, section 1547 is not even applicable to the instant case. Thus, we reverse and remand.
My Analysis: Some states don’t even require that the prosecutor even prove that the person was under the influence of an illegal drug. Some states drug related DUI law requires only that the state show the mere presence of the illegal drug, or even its metabolite. They don’t even need to show that the drug was active at the time of driving to get a conviction.
That is because it is extremely hard to quantify drug-related impairment in DUI cases.
The logic of this ruling based on the Pennsylvania DUI statute makes sense. The state would simply need to prove impairment through another means (such as a drug recognition evaluation) after the urine sample shows the presence of the illegal drug.
Bent of mind okay in Georgia DUI cases
Georgia Court of Appeals has ruled that an odd “bent of mind” rule that allows for the use of evidence of prior acts in DUI cases to show a propensity to drive drunk is constitutional, although unique to Georgia.
The Cite: Wade v. State, Court of Appeals of Georgia, Issued December 2, 2008 (link will be posted when available)
Excerpts from the opinion:
The State provided notice of its intent to introduce at trial a prior DUI conviction to show Wade's bent of mind and course of conduct, and the trial court held a hearing during which Wade stipulated to the admission of such evidence at trial only to prevent the State's witnesses from having to appear, but reserved, with the court's permission, the issue of the constitutionality of the admission of such evidence for appellate review. We therefore treat Wade's arguments as preserved for appeal.
Wade argues that the admission of similar transaction evidence in a case such as this, a generic DUI charge arising from a roadside traffic stop, violates due process. As Wade notes, the law in Georgia has evolved to the point of allowing the inclusion of similar transaction evidence in the trial of an unrelated offense to prove, among other things, the defendant's bent of mind, as was done here.
Compounding this danger of improper prejudice, the probative value is low in cases such as this, where a generic DUI offense is at issue, because the State does not need evidence of a prior act to show motive, intent, identity, plan, scheme, or other generally accepted rationale for admitting such evidence. As we have already recognized, in exercising discretion as to whether to admit the inflammatory evidence of prior acts,
the court should consider whether the State's need for the similar transaction evidence outweighs the prejudice inherent to the defendant. This consideration consists of at least two questions. First, is the issue for which the State is introducing the evidence a genuinely disputed issue? For example, if identity is the State's announced purpose but is not an issue contested by defendant, then the probative value of the similar transaction evidence is acutely if not fatally diminished.
As Wade's identity was not at issue, and as DUI is not a crime of specific intent, Wade contends that there was no need for the State to introduce the evidence.
Wade points out that Georgia is the only state to recognize the bent of mind exception, and we have found no authority to the contrary. Professor Paul S. Milich has studied the topic and observed that " '[b]ent of mind' is neither a traditional nor widely accepted category for the admission of independent crimes or acts. Indeed, no other American jurisdiction uses it." It is this unique feature of Georgia's law that Wade now challenges.
Nevertheless, we are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence here.
Accordingly, we are constrained to affirm the trial court's judgment, notwithstanding appellant's due process arguments.
My Analysis: Wow. My legal analysis is that this law is stupid and outrageous. The Defense in this case had one of the best and most accomplished DUI defense lawyers in the country, and still got stuck with this terrible ruling. Hopefully the Supreme Court of Georgia will fix this mess.
In the meantime, if you get a DUI in Georgia, the prosecutor can try to prove that you are a drunk in general to show that you were impaired on the date in question.
Really stupid and dangerous. From the opinion it sounds like the Court of Appeals here even thinks that the rule is insane, but doesn't want to overstep its authority and is therefore deferring to the Supreme Court.
Inventory search exception upheld in New Jersey
New Jersey has upheld an inventory search of a vehicle that turned up evidence of an additional crime.
The Cite: New Jersey v. Telepo, Unpublished, Decided September 17, 2008
Quote:
It is clear to this Court that the Rangers were only inventorying the car in order to protect themselves against future claims, and Mr. Telepo's property. Ranger Croll testified that he was suspicious of the safe, but he had no reason to believe that it was evidence of a crime. Ranger Croll even instructed Ranger Murphy to return multiple items back to the vehicle because they had no reason to believe they were linked to any crime. The third condition is the fact that if the owner is present, he must be given the option to consent to the search. State v. Mangold, 82 N.J. 575 (1980). It is clear from the testimony that Mr. Telepo had become belligerent at this time and it would have been impossible for the Rangers to get the consent of the defendant or to allow him to make other [arrangements]. Since all of the conditions have been met, it is clear to this Court that the vehicle was impounded lawfully, and that a proper inventory search had been conducted. It is clear from the testimony that at the time of the inventory search, the Rangers had no knowledge of the break-ins that had occurred at Millbrook Village, and the Rangers even testified that at that time they had no probable cause to believe that another crime had been committed.
The appeals court basically adopted the Superior Court Judge’s ruling and upheld the initial impound search.
Analysis: While search incident to arrest in DUI cases may be on the ropes, the inventory exception to the warrant requirement will typically support the admission of evidence found following a DUI arrest.
English implied consent warnings okay for non-english speaker
The Supreme Court of Iowa held that advisement of a non-English-speaking defendant of his implied consent warnings in English was sufficient under the circumstances when the defendant “seemed to understand” at the time, even though Miranda was conveyed in Spanish through the use of a Spanish Miranda Card.
The Cite: State v. Garcia, 756 N.W. 2d 216, Iowa Supreme Court, Issued September 19, 2008
Excerpts from the opinion:
Strunk transported Garcia to the Wapello County jail. At approximately 5:10 p.m., Strunk attempted to read Garcia his Miranda rights, and he advised her that he did not understand English. She then gave him a copy of his Miranda rights in Spanish. Garcia signed a form, written in English, which listed his Miranda rights. Strunk then read Garcia the implied consent advisory in English, and she asked him if he understood. Garcia said that he would do what Strunk wanted, “no problem.” Garcia signed the Iowa Department of Transportation “Request and Notice Under Iowa Code Chapter 321J/Section 321.208” form, written in English, which stated in pertinent part that he consented to give a sample of his breath. Garcia submitted to a Datamaster breath test, which registered his BAC at .144. No attempts were made to communicate the implied consent advisory to Garcia in Spanish. Garcia testified that he signed the implied consent advisory “because the official told [him] to sign” and that he understood nothing that was written on the form. At approximately 5:24 p.m., Strunk read Garcia his notice of revocation.The primary issue on appeal is whether Iowa Code section 321J.8 requires a law enforcement officer to make reasonable efforts to convey the implied consent warning to a non-English speaking person.
We turn then to the question of whether, under the circumstances presented to Officer Strunk, she used those methods which would reasonably convey the implied consent warnings to Garcia. Officer Strunk testified that she could understand Garcia and he seemed to understand her. There were numerous conversations between Strunk and Garcia with little apparent difficulty in communicating. Garcia signed the implied consent form, and he did not indicate that he did not understand. It was not until the motion to suppress that his lack of understanding was raised. Applying the “reasonable efforts” standard to the facts and circumstances of this case, we hold that Officer Strunk, under the circumstances facing her at the time of the arrest, utilized reasonable methods to reasonably convey the implied consent warnings to Garcia.
My Comments: Non-English speaking defendants put officers in a particularly tough position. It is easy to claim a lack of English skills to get out of things such as jury duty. Judges see this every day. So it is difficult to sort out who actually doesn’t understand and who is using a selective lack of understanding as their legal defense. People who use a lack of understanding of English as a legal excuse, when they don’t need to, seriously undermine the credibility of those who would actually need this as a legal defense.
Practice Note: Any private attorney with a client who wants to present such a defense should look at their fee agreement and their office interactions with the client. If you, as the lawyer, don’t speak the language the client is claiming he/she needed the advisements to be read in, and if your fee agreement is in English and signed by the client, you may be on ethically shaky grounds in presenting such a defense If you can communicate with the client in English, then be careful about presenting a lack of the client’s English skills as a defense in court. As a practical note, if you go through with representing such a client, no matter how it turns out, you may be on the receiving end of a void for lack of understanding argument about your fee agreement.
