When Arizona Police don't take no for an answer
Charles Barkley - A Forced Blood Draw: Barkley declined to submit to a breath test but was given a blood test, which is common in Arizona where the police don’t just take ‘No’ for an answer.
(Via Georgia DUI Blog.)
I agree with the statement "police don't just take "No" for an answer on many levels, but want to explain how the process works in Scottsdale DUI cases. Scottsdale defaults to blood, which means that they always request a blood test. The preliminary breath test (PBT) may be offered, but is not admissible into evidence, and the refusal to take it can't be held against a person. What I presume Barkley refused was the PBT. Now if a person refuses to take a blood test in Scottsdale, the police don't have to, and usually do not take no for an answer. Instead, they seek a search warrant and the forcibly draw blood if necessary.Intoxilyzer source code update for January 2009
In his noted blog, California DUI Lawyer Lawrence Taylor wrote about the Intoxilyzer source code saga that is playing out in court across the nation. He points out that the manufacturer of the Intoxilyzer refuses to divulge the source code that powers the machine, and therefore renders the machine a "mysterious black box."
I couldn't agree more, and am appalled that Courts still allow the machine's results to be used against a DUI suspect. Meanwhile, the citizens of each state that uses the Intoxilyzer are footing the bill for the prosecutors to continually defend the use of the machines in court and protecting the manufacturer from having to divulge the code.
Mr. Taylor quotes an article from the Tucson Citizen which discusses why Arizona believes that it can't compel the company, which is based in Kentucky to appear in an Arizona court.
I think the real question is why do prosecutors continue to defend this machine, and why do law enforcement officers continue to use it? I think it must be because if/when the source code is shown to be biased, corrupted, inaccurate or worse, there will be a flood of appeals from convictions where these machines were used.
My supposition is that CMI will go gently into that good night. In Arizona, I have definitely noticed a decrease in its use over the past several years. More agencies are switching to a blood standard. Some are now taking both an Intoxilyzer and a blood test.
The era of rewarding brazen corporate greed appears to be coming to an end, and hopefully with it an end to business practices like those noted by Mr. Taylor and the Tucson Citizen article.
Until then the best weapon we have against injustice is to educate the public through blogs like Mr. Taylor's, through reporters who really want to get at the truth, and on a grass-roots level, one juror at a time.
That the manufacturer refuses to testify in court should be highly relevant to any DUI defense against the machine. If judges won't compel the company into court and won't suppress the results of the tests, the least they should do is admit into evidence the facts of this company's behavior, which should speak for themselves.
Hearing impaired person's DWI in Texas
On January 14, 2009, the Court of Criminal Appeals of Texas handed down an interesting and lengthy opinion about a Texas DWI case in which the defendant claimed to be deaf. The opinion and concurrence deal with several issues, the main of which is the defendant's ability to participate in and understand the proceedings.
"Understanding" in DWI cases involves a suspension of disbelief, at least at the time of the stop. If the facts are to be believed, this defendant was over two times the legal limit and legally deaf. It would be a miracle if she were to understand anything at all during her processing. Then there's the trial, in which she participated and even testified, and then claimed not to understand because a sign language interpreter was used instead of an assisted listening device.
Here are some excerpts from the main opinion, followed by more comments:
Appellant filed a motion to suppress the breath test results, arguing that she did not understand that she had the right to refuse a breath test. At a pretrial hearing, appellant testified, through a certified American Sign Language interpreter, that she was unable to communicate with the arresting officer and that she took the breath test only because she "thought it was a requirement." She said that she could not understand the papers she was given to read, and she could not read the officer's lips because he had a mustache. The judge then asked her some questions that she answered coherently. She said that she was a high-school graduate, she has a driver's license, and she was enrolled in Blinn College, (footnote omitted) but she had not learned how to read and write very well. The court reporter's record reveals that appellant gave several audible responses before the interpreter translated.
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Deputy Woodrick then testified about the arrest. He said that it was hard to communicate with appellant. "The way I communicated with her was I would write notes, she would read the notes, and then she would answer my questions" orally. She indicated that she understood his questions, and her verbal answers were "[a]bsolutely" appropriate. The deputy said that appellant indicated that she understood the lan-guage in the DIC-24 form as well as her Miranda rights.
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When the trial judge asked Deputy Woodrick about the circumstances of the accident, appellant clarified one of the deputy's answers:
Witness: Well, part of the damage to the other vehicle. She hit the vehicle on the left corner and caused it to spin, and it slammed into a tree because--
Judge: Okay.
Appellant: I did not hit the tree.
Witness: She didn't hit the tree. The other vehicle hit the tree.
The station-house video was played, and the interpreter said that appellant signed "I don't understand" on the video five or six times.
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It is well settled that if a defendant cannot hear or does not speak English well enough to understand the trial proceedings or communicate with counsel, fundamental fairness and due process of law require that an interpreter be provided to trans-late between English and the accused's own language. (footnote omitted) Decisions regarding adequate interpretive services depend upon a potpourri of factors, including the defendant's understanding of the English language and the complexity of the pertinent law and its procedures, and the testimony. Therefore, the trial judge--having the defendant in his presence, observing his level of comprehension, and asking him questions, has wide discretion in determining the adequacy of interpretive services. (footnote omitted) The question on appeal is not whether the "best" means of interpretive services were employed, but whether the services that were actually employed were constitutionally adequate such that the defendant could understand and participate in the proceedings.
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The Constitution does not ... guarantee every defendant a perfect trial. The rights vouchsafed are practical, reasonable rights rather than ideal concepts of communication, and even these pragmatic rights may not be exercised without limit. The Constitution does not require that every defendant comprehend the English language with the precision of a Rhodes Scholar or appreciate the nuances of a wit-ness' expressions or behavior with the skill of a doctor of psychology. Nor may a defendant press the exercise of his right to the point at which he disrupts the public's right to an orderly trial.
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..........This was not a complicated case, it was a simple DWI trial. The level of linguistic competency necessary to participate in one's defense is directly related to the complexity, both factually and legally, of the case. Here, the facts and the law were not complicated: There was no traffic stop to contest, as appellant caused an accident and remained at the scene, exchanging information with the accident victim. The issue in this case was whether appellant could communicate with Deputy Woodrick well enough to understand her Miranda rights and her right to refuse to give a breath sample.
The same is true here. We might agree that a deaf-relay interpreter would have been "the best" service provider. But here, where the record shows that appellant responded coherently and cogently to questions asked (sometimes verbally, before the translation), graduated from high school and was admitted to a college (although she failed her college courses), could understand sufficient English to obtain a driver's license, could communicate sufficiently with her accident victim to exchange pertinent information, and could follow Deputy Woodrick's instructions, the trial court did not abuse its discretion in denying appellant's motion for new trial.
This is not an instance in which the trial judge did not understand or appreciate the defendant's communication problem. The record is replete with instances in which both the pretrial and trial judges stopped the proceedings to inquire into appellant's understanding, to provide additional resources and services, and to of-fer additional time for appellant to consult with her attorney and her interpreters.
In this case, the record reflects that appellant understood the proceedings well enough to assist in her own defense; moreover, whatever communication difficulties might have existed between appellant and her trial counsel were not apparent in the record. The record reflects that the defense thoroughly and competently challenged every aspect of the State's case. Appellant failed to set out, at the motion for new trial hearing, any specific instances in which (1) she failed to understand crucial testimony during the trial, or (2) she was not able to communicate adequately with her counsel during the trial or how either of those failures led to a fundamentally unfair trial and a violation of her due-process rights . (footnote omitted) Although the court of appeals may be right that a deaf-relay interpreter could have been "the best" solution to appellant's lack of hearing, it erred in concluding that the three interpreters that the trial judge did use were constitutionally in-sufficient to ensure her due process rights.
Additional comments: Notice how the opinion basically says that DWI cases are simple to understand and don't require a complex background or education to appreciate. In my opinion this is absolutely false. DUI cases are complex, and in the criminal justice system, rivaled in nuance and scientific detail only by DNA cases. It is this lack of understanding of the issues in DUI cases from the bench that often leads to the perception that these cases are cut and dry, open and shut. Until the bench appreciates how complex and difficult DWI cases can be, what hope do we have of the pubic and the jury pool realizing this?
It is the DUI defense lawyer's job to educate both the Judge and Jury, and sometimes the prosecutor as well on issues that might seem simple, but in fact are anything but.
A catch-22 for victim of DUI driver
Imagine this. You are hit and severely injured by an impaired driver. The driver is prosecuted for your injuries and charged with assault, which is a felony. You then learn that if the person who injured you is convicted of the felony, his insurance policy will not compensate you for your injuries.
What if you are injured so badly that you can't work and support your family? What if your only hope for a non-institutionalized life is the proceeds from the insurance policy?
Then what if you find out that the prosecutor wanted to extract his pound of flesh and stick the guy with a felony?
Well, fortunately for the victim in this case, the prosecutor considered his best interest and bit the bullet and gave the defendant a misdemeanor.
The article can be found here.
Clarkson was initially charged with DUI and felony assault, but a plea deal amended the assault charge down to a misdemeanor. Lawyers said a felony would have negated Clarkson's $3 million insurance policy which could benefit Wiseman.
Although this is a horrible case and the defendant may very well deserve even more than the 30 days he will get in jail, it is refreshing to hear that prosecutors are making judgment calls that really consider the victim's best interest, rather than just going for conviction on the more serious charges.
Georgia DUI breath test case addresses police pressure
On January 13, 2009 the Georgia Court of Appeals reinstated a breath test that had been suppressed based on the Georgia DUI defendant's testimony that she was, essentially, pressured into taking a chemical test after refusing it.
The trial court found the defendant's testimony credible, and believed that her assertion that she felt that she would be held in jail if she didn't cooperate and take the test.
The case is State v. Quezada.
The facts and Issue:
Prior to trial, Quezada moved to suppress the results of her breath tests, arguing that she did not voluntarily consent to the same. At the motion to suppress hearing, Quezada testified that she changed her mind and agreed to the breathalyzer test after Knight repeatedly asked her to do so, explaining "I just felt that I ... wasn't going to get out of there [the jail] unless I did it." On rebuttal, Knight testified that he did not repeatedly ask Quezada to take the test but instead merely told her that, if she changed her mind, she could take the breath test. Knight further stated that he did not threaten Quezada to get her to take the test nor did he offer her a benefit or other inducement to submit a breath sample.
The trial court credited Knight's testimony, finding that nothing in the evidence indicated that Quezada was coerced or threatened into submitting to the chemical tests. The trial court nevertheless granted Quezada's motion to suppress, based on Quezada's refusal, at the time of her arrest, to submit to chemical testing. The State now appeals from the trial court's order.
The question in this case is whether Quezada rescinded her initial refusal to submit to a breath test. In granting the motion to suppress, the trial court relied on Howell v. State, 266 Ga.App. 480 (597 S.E.2d 546) (2004), interpreting that decision as holding that once a suspect has refused to submit to chemical testing, the State may not thereafter ask the suspect a second time if she will submit to such testing. Howell, however, does not stand for such a proposition.
Holding:
Quezada, by her own admission, then "changed her mind" and agreed to take the test, (footnote omitted) in the absence or any threats or inducements by Knight. In light of Stapleton, therefore, we conclude that Knight did not act unreasonably and that the trial court erred in granting Quezada's motion to suppress. Accordingly, we reverse the trial court's order. (all emphasis added)
My Comments:
In some states this is not even an issue. In Arizona DUI law, for example, when a person refuses the officers can apply for a search warrant and forcibly take a blood test. When you compare even the (supposed) misinterpretation that the the trial judge in this case made to the law in states such as Arizona (which from my informal survey is probably the most extreme DUI jurisdiction in the nation), it shows how very differently DUIs are treated in the judicial system from state to state.
Right now we are working on putting together a comprehensive comparative guide to DUI law in all 50 states, which should be ready within the next month or so.
South Dakota DUI Law gain momentum
For states that have a time window for per-se DUI laws, the fact that South Dakota lacks one may come as a surprise.
The following quote comes from an editorial:
But some defendants have argued successfully that even though they had a 0.08 percent reading by the time their blood was drawn while in jail, they were driving before alcohol actually reached their blood system.
In other words, they were drunk after they got out of the car.
That this is factually true in some cases makes little difference. That a person can have several drinks and then immediately drive home sober, only to become intoxicated by those drinks as time passes is a scientific fact that no law can change. In the political world it does not matter. Politics has little to do with justice in drunk driving cases, that is until a politically connected person gets arrested fro DUI.
Newspaper editorials mostly support per se DUI laws with look-back windows (that is, if you are .08 or more within two hours of driving, the law does not care if you were sober while you drove, you are still guilty of DUI). Politicians oppose such laws at their political peril.
As a legal matter I oppose these laws because there is no rational relationship between the evil sought to be prevented (driving impaired) and the means of preventing it (jailing somebody who is sober when they drove but drunk later).
However, as a preventative measure, I see where people are coming from who support it. The thinking must be that if we make it illegal to have a .08 or more alcohol concentration any time within two hours of driving, then the would be drunk driver won't try to calculate when they will become impaired by an amount of alcohol they drank (sufficient to cause them to be a .08 or more at some time during the absorption process). If the idea is to scare people out of making the choice to make a quick dash towards home before the booze hits, then they may be on to something, something that even a rational defense could not help but agree with.
The problem is that while these laws pass with fanfare amongst politicians, few people actually pay attention to the changes in the law, and fewer understand the dynamic interplay between alcohol metabolism and the law.
The trend towards two (and even three or four) hour look-back/look-forward windows for per se alcohol DUI laws appears to be irreversible. What we need now, since we are stuck with them in the majority of states, is serious public information.
As a society we will be safer if we educate rather than simply incarcerate.
One man's assessment of stupid DUI laws
Here is a very well-done video we found on YouTube which discusses the question of whether DUI laws are rational. The quality of the video production is superb, and the discussion may be eye-opening to some.
The narrator discusses the death toll from impaired drivers as an insignificant number. We couldn't disagree more with that proposition. Even if, as the narrator says, drunken drivers kill fewer people each year than the flu, there is a major difference. Any DUI death is the direct result of somebody's decision. You can point directly to the actions of a human being that took another human being's life.
You simply can't compare death by a virus to a death by a drunk driver, so the analogy fails in my opinion. Nevertheless, if the scenario of the narrator's DUI arrest is accurate (which I find difficult to believe), then the law has gone too far. A person riding or walking a bike while drunk is little danger to anybody other than him or herself. Unless we are going back to the prohibition (which didn't work the first time around), then we need to stop criminalizing drinking through back door methods such as enacting stupid DUI laws.
Georgia DUI roadblocks: A map to GA DWI law
On January 8, 2009, the Georgia Court of Appeals issued an opinion in a Georgia DUI roadblock case that does a good job of describing how GA law treats roadblocks. The case is Holowiak v. State.
There were two major issues in this appeal. The first was the Intoxilyzer 5000 source code. The court found that the defendant didn't jump through the right hoops for them to seriously consider compelling the testimony of the manufacturer of the Intoxilyzer line of breath test machines.
I am posting this case because of the last paragraph of the opinion, which is quoted below:
Here, the State established that all drivers were stopped at a specific location for a minimal amount of time; the roadblock was well identified as a police checkpoint; and the screening officer was sufficiently qualified. Further, the supervisory officer who initiated the roadblock testified that its primary purpose was traffic enforcement, "to enhance safe travel for citizens through the county to identify any drivers who were violating state laws and specifically looking for unlicensed or licensed violations and impaired drivers and remove those drivers from the roadway." The supervisor's memorandum regarding the roadblock confirms that the primary purpose during the New Year's Eve holiday was to "identify and charge accordingly those drivers who are operating motor vehicles in violation of State Laws" and especially to "identify those who are driving impaired or unlicensed and remove them from the roadways." "[A] roadblock that serves as a highway safety checkpoint is valid in its primary purpose, even if the safety violations for which the officers are looking are several." Kellogg v. State, 288 Ga.App. 265, 268(1)(a) (653 S.E.2d 841) (2007). The trial court did not err in denying Holowiak's motion to suppress evidence obtained as a result of the roadblock.
My thoughts of GA DUI roadblocks: A highway safety roadblock is a valid purpose in Georgia. I get that. What I want to know is what other reasons they might choose to do a roadblock?
Minnesota DUI independent test request case
In a new unpublished Minnesota DUI case, the court has ruled that the defendant's requests for an independent test were not good enough and that she didn't make enough of an effort for them to intervene and save her from the DWI charge.
The case is Minnesota v. Talbor, decided by the Court of Appeals of Minnesota on January 6, 2009.
The facts of this case from the Minnesota DUI opinion:
Appellant Muriel Matuzak was arrested for driving while impaired after she failed several field sobriety tests including a preliminary breath test (PBT) that showed an alcohol concentration of .174. When Matuzak saw the PBT results, she asked the arresting officer if she could take a blood test. The officer did not respond to the request. The officer read the implied-consent advisory to Matuzak, and she was transported to the jail. She had access to her cellular telephone during the trip to the jail and used it to send a text message to a friend stating that she would not be at work. Matuzak declined to speak with an attorney and consented to a breath test. Matuzak did not make any further inquiry about a blood test or any other additional alcohol concentration test, and she did not ask to make any telephone calls.
Matuzak was charged with DWI. She moved to suppress the results of the Intoxilyzer test, arguing that she had been prevented from obtaining a second test by the offi-cer's silence in response to her scene of the stop inquiry about a blood test. Af-ter a hearing on the motion, the district court concluded that because there were no "active attempts by law enforcement to prevent or deny a separate test," the In-toxilyzer test results were admissible. Matuzak submitted the case to the district court on stipulated facts as authorized by State v. Lothenbach, 296 N.W.2d 854 (Minn.1980) (superseded by Minn. R.Crim. P. 26.01 subd. 4, effective April 1, 2007). The district court found Matuzak guilty of DWI in the second degree. Matuzak was sentenced, but the sentence was stayed pending this appeal.
Minnesota DUI Law Regarding Independent Tests
Minnesota law provides that after a person submits to the state's alcohol-concentration test, the person has a right to have an additional test at the per-son's own expense. Minn.Stat. § 169A.51, subd. 7(b) (2006). "The failure or inabil-ity to obtain an additional test ... does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer." Id.
The holding in this case:
Matuzak argues that her situation is analogous to Theel's. We disagree. Theel made an active attempt to obtain a second test after he took the Intoxilyzer test, and he was denied the right to call an attorney to assist in arranging the test. In contrast, Matuzak declined to speak with an attorney before the Intoxilzyer test, did not request a second test after the Intoxilyzer test, and did not ask to speak to anyone about a second test. Matuzak failed to make clear her intent to have a second test administered, and law enforcement did nothing to prevent or deny additional testing.
Practical tip for people facing a DUI (my comments, not from the opinion):
When you face a DUI investigation, you need to be very proactive about your rights. You need to insist on an independent test if you want one. You need to insist on talking with a lawyer if you want one. You should always be polite, but don't mumble requests and make sure that your desires are made clear. A wishy-washy request for an attorney or an independent test is just as good as no request at all.
New Pennsylvania DUI refusal suspension case
In a new Pennsylvania DUI case, decided on January 7, 2009, the Commonwealth Court of Pennsylvania upheld the 18 month suspension of a driver accused of DUI.
The case is William SCHLAG v PennDOT, Bureau of Driver Licensing, and it goes through an analysis of what the DOT must show in a DUI refusal hearing.
Quotes from the opinion:
As to the merits, we note, to sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, PennDOT must establish a licensee: (1) was arrested for DUI by a police officer who had reasonable grounds to believe the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned refusal might result in a license suspension. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).
As to the merits, we note, to sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, PennDOT must establish a licensee: (1) was arrested for DUI by a police officer who had reasonable grounds to believe the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned refusal might result in a license suspension. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).
Comments:
Nothing noteworthy about this opinion except it gives a good outline of what Pennsylvania courts will consider in regards to refusal hearings. It shows how much power and discretion the average Pennsylvania police officer has over a citizen accused of DUI, and how difficult it is to save a drivers license from PennDOT even if you were not the driver of the vehicle, when an officer alleges you refused the DUI chemical test.
Washington State considers actual physical control a lesser offense of DUI
In a Washington DUI case, the Washington State Supreme Court, on December 31, 2008, held that actual physical control is a lesser offense of driving under the influence. The court rejected the argument that an "included offense" must be a "lesser included offense" and that the sentence on the lesser be less severe than on the original charge.
The case is WA DUI Case: Washington v. Nguyen. It is important to note the the defendant in this case, Ms. Nguyen, represented herself at the Supreme Court level. Usually, pro se (or pro per) representation, especially at the State's highest court, is a disaster waiting to happen. However, in this case it appears that Ms. Nguyen held her own and actually got the court to address her arguments. Even though she lost, for that reason, I congratulate her.
Relevant excerpts from the opinion:
Although some other states require that a "lesser included" offense have a lesser penalty, this does not mean that in Washington an offense cannot be an included offense if the two offenses have the same penalty.
...
Simply because some other states have adopted an approach that considers whether the penalty is lesser does not mean that Washington's approach reflected in the Workman test is incorrect and must be changed.
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Additionally, Ms. Nguyen does not explain why a lesser penalty should be a requirement for an included offense. Inquiring into potential penalties has no bearing on whether the elements of the offense are necessarily included in the greater offense--the legal inquiry under the elements test used in Washington, nor does it disclose anything about whether the evidence supports the inference that the lesser crime was committed--the factual inquiry under the Washington test.
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Most importantly, the question of what constitutes an included offense is a matter of what is required by RCW 10.61.006. RCW 10.61.006 forecloses consideration of the penalty because it limits an included offense to one "the commission of which is necessarily included " in the charged offense (emphasis added), establishing that the sole inquiry is whether the included offense is necessarily committed when the greater offense is committed. The statutory language does not suggest in any way that the potential penalties are relevant to the determination. The word "lesser" does not even appear in the statute.
The Washington State Supreme Court's Conclusion:
There is no requirement under Washington law that an offense carry a potential penalty that is less than the charged crime in order to be an included offense for which a defendant may be convicted, even if not charged. We hold that being in physical control of a vehicle while under the influence of intoxicating liquor or any drug in violation of RCW 46.61.504 is an included offense of DUI. We affirm the Court of Appeals and uphold Ms. Nguyen's conviction for this crime.
Some thoughts about the case:
This case appears to be an accidental one in that Ms. Nguyen seems to have been grabbing at straws. It seems that the prosecutor at the trial level in this case may have inadvertently labeled the offense an "included offense" in his or her argument, and then Ms. Nguyen ran with it. Most states will allow a prosecutor in a DUI case to allege both driving and actual physical control, and then give the finder of fact a choice between the two. This case seems to solidify the fact that in Washington DUI cases, prosecutors may run with both theories with alleging separate counts.
New Washington State DUI Ignition Interlock Law
Washington State has enacted a new law that allows DUI drivers to keep their license if they agree to install an ignition interlock device. Under the new law, people who refuse to take a breath test, and who would otherwise be subject to a mandatory one-year license revocation, may drive if they have a breath test machine installed in their vehicle.
This next week I intend to ask standout Washington State DUI lawyer Aaron Wolff his opinion on the new law.
At first glance, it appears that the law may take the teeth out of WA's implied consent law, which is designed to make it painful for a person to refuse to take a breath test.
When admissible into evidence, the breath test is certainly a DUI prosecutor's best weapon towards securing a conviction. It makes me wonder why anybody would ever submit to a breath test if arrested for DUI in Washington State.
Sure, a prosecutor may be able to argue that the refusal indicated a consciousness of guilt. However, it could also just indicate a healthy distrust of breath testing technology, which is flawed to begin with.
Washington State, to my knowledge, is the first state to use ignition interlock devices to defang DUI laws. States like New Mexico and Arizona, which have had ignition interlock device laws on the books for several years use them as an additional punitive or remedial measure, not as a way to decrease the impact of a conviction or license suspension.
I certainly applaud Washington State's approach to DUI defendants. They treat them less as criminals, and more as victims of disease or bad judgment. Although Washington State DUI lawyers may disagree with me on this point, one only has to look to Arizona DUI law to see the stark contrast.
DUI jury duty - what jurors are thinking
On December 31, 2008, the Court of Appeals of Kansas affirmed Randy Johnson's DUI conviction. Although there are several issues making this opinion a worthwhile read, in this post I focus only on the issue of juror misconduct.
Here's the issue:
...the offending juror did not explain what the juror meant when the juror stated that "this was not Randy's 1st time and he was about due for the charge." Did the juror mean that this was not Randy's first time attempting to drive home after a night of drinking? Or did the juror mean that this was not the first time that the police had stopped Randy for suspicion of DUI, but before the police never had sufficient evidence to charge Randy with DUI?
Jurors say the strangest things during trial and deliberations. Judges are tolerant of most things that are said, as long as no specifics are introduced.
The offending jurors' vague statements in this case do not even rise to the level of those in Cook and Farrar. There were no statements of specific fact concerning Johnson's past conduct. As in Farrar, the juror's statements would not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of its oaths and the instructions given by the court. Johnson has not shown that the offending jurors' statements substantially prejudiced his right to a fair trial. The trial court was correct in its determination that the offending jurors' statements in this case do not rise to the level of warranting a new trial. As a result, there is no abuse of discretion in the trial court's decision.
My Comments: It is expected that jurors bring preconceived notions into DUI trials. Statistics show that most people accused of DUI have driven impaired many times in addition to the time they got caught. Most jurors know this. Even if it is unspoken, it is still out there, and is likely considered either in each juror's mind, or in discussions in nearly every trial.
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