DUI Law Blog : DUI Lawyer & Attorney : Drunk Driving Defense & DWI News : Dan Jaffe

In an opinion issued, but not released for publication, of February 24, 2009, the Supreme Court of Montana issued a new Montana DUI opinion.

The Case:

Montana v. Ditton

The Briefs:

Appeallant's Opening Brief - Appellee's Brief - Reply Brief

The basis for appeal:

Ditton now appeals from the District Court's decision, raising several issues. First, he maintains that there was no particularized suspicion justifying the stop. Second, he argues that Sergeant Crawford lacked the authority to stop and arrest him for DUI. Third, Ditton argues that the District Court erred in concluding that his motion to dismiss was properly denied and maintains that the Municipal Court was required to make a judicial determination, supported by a sworn oath or affidavit, that probable cause existed for the DUI charge filed against him in the Notice. Finally, Ditton argues that the Municipal Court erred in requiring him to pay his fines from his Veterans Affairs disability payment, arguing that the Municipal Court was federally preempted from basing his fines on this income.

Issue 1: Did the District Court err in concluding there was particularized suspicion to justify Ditton's stop?

Particularized suspicion to justify an investigative stop is proven by the presentation of "objective data from which an experienced officer can make certain inferences, and a resulting suspicion that a person is or has been engaged in wrongdoing." Morris v. State, 2001 MT 13, ¶ 9, 304 Mont. 114, 18 P.3d 1003. Whether particularized suspicion exists is based on the totality of the circumstances. Morris, ¶ 9. Here, the odd angle of Ditton's car, the fact that he was leaving a bar late at night, his ensuing driving behavior, and his failure to properly make a right hand turn, provided objective data from which an experienced officer like Sergeant Crawford could suspect that Ditton was driving under the influence. Whether or not Ditton's driving behavior was technically "legal," the totality of the circumstances before Sergeant Crawford provided a sufficient basis for particularized suspicion to justify the traffic stop in this case. See State v. Brander, 2004 MT 150, ¶ 6, 321 Mont. 484, 92 P.3d 1173; Widdicombe v. State ex. rel. Lafond, 2004 MT 49, ¶ 12, 320 Mont. 133, 85 P.3d 1271. Because Ditton has failed to show that either the Municipal Court or District Court erred in this regard and that any of the findings of fact in this case were clearly erroneous, we affirm the District Court's decision.

Issue 2: Did the District Court err in concluding there was probable cause for Ditton's DUI arrest?

We agree with the District Court that these facts provided sufficient probable cause for Sergeant Crawford to arrest Ditton for DUI. Once again, Ditton has failed to show that any of findings of fact in support of probable cause were clearly erroneous, or that either of the lower courts erred in any respect. Thus, we affirm the conclusion that Sergeant Crawford had probable cause to arrest Ditton for DUI.

Issue 3: Did the District Court err in concluding that Ditton was properly charged with DUI in the Municipal Court?

However, probable cause to arrest Ditton for DUI was clearly present in this case. Thus, Sergeant Crawford had the option of either formally arresting Ditton and placing him in detention, or issuing the Notice. He chose the latter course. Because probable cause to arrest Ditton was present, and because the Notice does not require a sworn affidavit or oath to be valid, we conclude the District Court did not err in affirming the Municipal Court's decision to deny Ditton's motion to dismiss.

And now for what Ditton got from his efforts:

We affirm Ditton's conviction for DUI in Municipal Court. However, we remand Ditton's sentence to the District Court with instructions that it vacate the imposition of $885 in fees and costs based on his Veterans Affairs disability benefits.

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The Minnesota Court of Appeals released a new Minnesota DUI Law case on February 17, 2008.

The opinion chronicles some of the fight to force the maker of the Intoxilyzer machines to disclose the source code that powers the machine to the defense.

The case, which was a loser from a Minnesota DUI Lawyer's perspective, is pretty typical of what is going on around the country with this type of litigation.

We will continue to monitor developments in this case.

For local information, see Minnesota DUI Lawyers.

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Washington State DUI Lawyer Aaron Wolff had an excellent post yesterday on the emotional impact of DUI.

Here is a quote from his post:

What I tell everyone I meet with is that they will make it through this incident.  It is an aberration in an otherwise fulfilling and law-abiding life.  I have represented everyone from friends to family members, "soccer moms" to professionals and executives, and everyone of them, irregardless of the ultimate outcome of their case, made it through their arrest for DUI.  I am attorney to fight and protect my client to the best of my ability in the legal arena.  I am also a "counselor" to be their to listen to their concerns and give them insight (and if necessary, referrals to mental health professionals) to assure that they will be able to emotionally sustain themselves throughout the process.

What Mr. Wolff says is true, and sometimes DUI Lawyers lose sight of the fact that they are there to emotionally as well as legally support their clients during this most difficult time.

There are some DUI attorneys who view their function as perfectly technical. And this probably is the best way to get the best legal result, since the lawyer's time is not spent (could be translated as wasted) on coddling and comforting a client. But this is the wrong approach in most cases, because as DUI lawyers, we have to be holistic in our approach. It doesn't matter if we get the client's case reduced if we do emotional damage along the way. Like physicians, lawyers should consider first doing no harm.

DUI defendants are in a vulnerable position when they come to DUI defense lawyers, and the lawyers would be doing themselves, their clients and society a great service by being mindful of the fact that behind the title "defendant" there is a human being going through a very tough time.

We also need to realize that sometimes our clients have alcohol problems. Sometimes their alcohol problems are caused by underlying mental or emotional issues. Sometimes they are self-medicating with alcohol or drugs.

I'm just saying that, as DUI lawyers, we are in a superior position to help our clients not just turn their cases around, but acquire tools to make the rest of their lives better.

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In a new Minnesota DUI opinion issued on February 10, 2009, the Minnesota Court of Appeals reversed the trial judge's entry of a judgment of acquittal following a jury verdict of guilty.

The trial judge, I believe, correctly, saw that Standardized Field Sobriety testing is flawed. Because the officer in this case testified that under the NHTSA standards for applying and interpreting the field tests there is a 9% chance that the person is not above the legal limit, the trial judge, I believe correctly, reasoned that based on the field tests, there was reasonable doubt.

Looked at objectively, it stands to reason that if there is a 9 percent chance of innocence there is of course reasonable doubt.

The Minnesota Court of appeals didn't see it that way. They explain in the opinion that, under Minnesota DUI law, there is no mathematical or statistical standard for reasonable doubt. Theoretically, the testimony could be that there is a 50/50 chance of the test getting it right and, if a jury convicted, the conviction would stand.

One thing I can say for sure is that we want trial judges like the one in this case making these types of tough decisions. The judge had to know that it would be a politically unpopular decision, and that he or she was likely to be reversed on appeal. I admire the fact that the Judge did it anyways.

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The Arizona Court of Appeals, Division I, issued a new DUI ruling on February 3, 2009 which remanded a case back to the trial court because the trial judge ruled on a right to counsel motion without a hearing, despite the fact that the Defense requested one.

This is a memorandum decision, so there is currently no citation available. The name of the case is State v. Standish.

The Facts:

Seneca S. Standish appeals from his convictions for two counts of aggravated driving under the influence. Standish argues that the trial court erred by summarily denying his motion to dismiss for interference with the right to counsel. Because the motion to dismiss alleged a colorable claim for relief, we remand for an evidentiary hearing.

Standish was charged with two counts of aggravated driving while under the influence of intoxicating liquor or drugs, each a class 4 felony. He moved to dismiss the charges, claiming the police violated his right to consult with counsel during the investigation. The motion alleged that the police, without justification, failed to honor his request to speak with counsel before obtaining blood evidence from him and refused to allow him to speak privately with counsel when he was eventually permitted to call counsel following the blood draw. The State responded that Standish had been provided with a telephone and phone book before the blood draw, but refused the offer, and that his subsequent disruptive behavior justified the police in not allowing further access to a telephone.

At a trial management hearing on April 5, 2007, the trial court scheduled an evidentiary hearing on the motion to dismiss for April 20, 2007. On April 11, 2007, however, the trial court issued a minute entry order stating:

The Court has received and reviewed Defendant's Motion to Dismiss for Violation of Right to Counsel.
No good cause appearing,
IT IS ORDERED denying Defendant's Motion.
  No further explanation was given by the trial court for the order denying the motion to dismiss.

The order apparently also served to vacate the evidentiary hearing. Standish filed a motion for reconsideration, which was likewise denied by the trial court without explanation.

Upon trial to a jury, Standish was found guilty on both counts as charged. The trial court suspended sentencing and placed Standish on probation for three years with the condition that he serve a six-month prison term. We have jurisdiction over his timely appeal. See Ariz. Const. art. 6, § 9; Ariz.Rev.Stat. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), -4033 (Supp.2008).

The Ruling:

Under these circumstances, the proper procedure is to remand this matter for an evidentiary hearing on the claim of interference with the right to counsel. See State v. Warner, 150 Ariz. 123, 128, 722 P.2d 291, 296 (1986). Depending whether he can prove that his right to counsel was violated and the nature of his prejudice, Standish may be entitled to either dismissal of the charges or the suppression of evidence and a new trial. See Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (stating that the proper remedy is the suppression of evidence); Holland, 147 Ariz. at 456, 711 P.2d at 595 (holding that dismissal was required). We express no opinion whether Standish has a valid claim or, if he does, as to the appropriate remedy.

My Comments: I have heard judges say things like "should we get the jury ready?" and "after I rule on the motion, we can bring the jury in right away." These things indicate that the judge is planning to rule against the defense. While not giving a hearing is certainly good grounds for appeal, it does not surprise me in the least that it happened. Arizona DUI law is complicated, and it would certainly be out of line were I to say that it is stacked against the defendant... but there are certain cases that certainly make you wonder.

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