DUI Law Blog : DUI Lawyer & Attorney : Drunk Driving Defense & DWI News : Dan Jaffe of DUIAttorney.com LLC

This is a long post and the article below from the LA Times is quoted in full. At issue is one of the most important issues surrounding DUI cases. That is the accuracy of breath testing. This ruling, from the California Supreme Court, is on the right track and acknowledges the "science" behind breath testing and comes to terms with the simple fact that the machine will produce disparate results for different people depending on many factors not accounted for in testing.

California's highest court says juries can consider accuracy of breath tests in DUI cases - Los Angeles Times: “SAN FRANCISCO (AP) — The California Supreme Court has joined a handful of other courts in the country that have said Breathalyzer results mean different things for different people and ruled that suspected drunken drivers can attack the test results in court.

Defense attorneys lauded Thursday's unanimous ruling for deferring to science, which has shown for years that the test results are highly variable. Prosecutors, however, predicted the move will undermine California drunken driving cases.

At issue is how authorities use booze breath to determine how much alcohol is in the bloodstream.

When consumed, alcohol is absorbed in the blood and carried through the brain to the liver and heart before diffusing in the lungs, where it is exhaled in breath.

Authorities now use a nationally accepted scientific formula known as "Henry's law" to convert the amount of alcohol vapor in the lungs to a blood-alcohol level.

The scientific problem is that breath-to-blood ratios vary greatly throughout the population and fluctuate individually, influenced by such factors as body temperature, atmospheric pressure, medical conditions and the precision of the measuring device.

That means the same breath-test result for one person's breath could signal intoxication while for another it could simply mean "just a glass of wine with dinner, officer."

Compounding the matter are California's two distinct driving under the influence laws.

The first law, which has been on the books for decades, requires proof that a driver was intoxicated such as slurred speech, bloodshot eyes and the like. Jurors are told they can presume someone is drunk if blood tests show at least a .08 percent level of alcohol.

The second law, passed by the Legislature in 1981 and updated in 1989, simply defined a drunken driver as someone with a blood-alcohol level of .08 percent regardless of appearance or behavior. The state Supreme Court in 1994 extended that definition to include Breathalyzer results, barring drivers charged with the second law from attacking the variability of the breath tests.

Since then, most DUI attorneys viewed disputing Henry's law as a dead end for challenging breath-test machines.

Prosecutors routinely charge their clients with both versions of the law to increase the chances of conviction.

Defense attorneys and prosecutors agreed the state Supreme Court ruling on Thursday reopened the door to breath-test challenges. The court said evidence of the variability of tests can be shown to juries.

"Defense evidence is relevant to rebut the presumption that the defendant was intoxicated, but not to remove the presumption altogether," Justice Carol Corrigan wrote for the Supreme Court.

Courts in Arizona and Vermont have made similar rulings, she said.

Prosecutors said the California ruling will seriously hamper their ability to win convictions in driving under the influence cases.

"It will confuse jurors," said Margaret O'Malley, a Santa Barbara County prosecutor who represented the California District Attorneys Association before the high court.

Defense attorneys said the ruling confirms in court what science already knew: one-size-fits-all breath tests don't necessarily reflect reality for all suspects.

"I've had clients with one lung," said Steven Oberman, a Tennessee lawyer and founder of the National College for DUI Defense, explaining such people will naturally have more alcohol vapors in their breath than someone with two lungs.

To make its ruling, the California Supreme Court used the case of Timmie Lance McNeal, who was convicted in San Bernardino County of drunken driving. He appealed in 2007, arguing that he was improperly barred from challenging the breath test.

The Supreme Court agreed that McNeal was wronged by the trial court but chalked it up to "harmless error." The Supreme Court said there was abundant evidence other than the breath test to support the jury's determination that McNeal was guilty of drunken driving.”

Congratulations to the California Supreme Court for getting this so right!

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Here's a typical example of a Virginia DUI case that made it all the way to the court of appeals in VA, which issued an opinion shooting down the defendant's arguments.

Virginia DUI Physical Control Case - June 30 - 2009 : DUIAttorney.com: "It is the classic story of DUI defendant fights system, comes up with some arguments that could be disguised as potentially fruitful, and then gets shot down by the court of appeals.

The underdog in the story, Ngomondjami, was not conscious. The vehicle was not running."

(Via DUI News.)

This is one of those cases where it seems like the facts should be on the defendant's side, since he wasn't driving, and in fact wasn't even awake. But they weren't because the law is stacked against anybody who is under the influence and has any kind of present ability to drive.

Here, all the defendant would have to have done would have been to wake up.

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Here is an appeal from a probation revocation case that was initiated after a Florida DUI arrest. It discusses whether probation can be revoked on an original offense by virtue of arrest alone, in absence of an admission of guilt to the new offense.

The case was issued on 5/15/09, out of the fifth district court of appeals of Florida. The petitioner's name is Raymond Good. At the time of writing this, there is no official cite available.

This case began as an Anders appeal. Appellant's underlying crime was grand theft over $20,000, a third-degree felony, to which he pleaded nolo contendere and was sentenced on July 30, 2007, to eighteen months of probation. He was subsequently charged with violation of probation. The public defender was ordered to file a supplemental initial brief addressing whether reversible error was committed when Appellant's probation was revoked due to his arrest for DUI. We cited Hines v. State, 358 So.2d 183 (Fla.1978); Lockett v. State, 547 So.2d 1292 (Fla. 5th DCA 1989), and Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981), which stand, overall, for the proposition that probation cannot be revoked based solely on proof of an arrest during the probationary period where the sole condition assertedly violated was that the probationer "live and remain at liberty without violating any law" and the only evidence of a violation was hearsay.

Appellant admitted that he was arrested for DUI and identified the ticket that he received. He did not admit to the DUI. There was no Breathalyzer test, no arrest affidavit, no video of Appellant's behavior during the traffic stop or booking offered in evidence. The arresting officer did not testify. The only evidence of the law violation was the ticket. The trial court found that Appellant violated his probation based on the arrest and reinstated the probation and extended probation to five years. Without this violation, Appellant's probationary period would have ended January 31, 2009.

In its response, the State urges that this appeal should be dismissed because Appellant is now a fugitive from justice, an arrest warrant having been issued for Appellant on December 12, 2008. Under Griffis v. State, 759 So.2d 668 (Fla.2000), if an appellant absconds after filing an appeal, the reviewing court has the discretion to dismiss the appeal. According to the State's filing, Appellant absconded on or about December 12, 2008, and as of the date the State filed its response, February 18, 2009, he was still missing. Had Appellant gone missing after the end of his original term of probation, we would likely not dismiss the appeal; however, having elected to abscond during the original probationary term, this appeal is essentially moot. Accordingly, we elect to dismiss this appeal.

There is a perception that once on felony probation, it is extremely easy to get violated, and an arrest can result in revocation of probation. This would mean that the mere accusation could be enough to send somebody back to prison, even if it is merely an accusation of misdemeanor DUI.

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On April 23, 2009, the Court of Appeals of Georgia issued a new DUI opinion regarding the interpretation and application of Georgia's new implied consent law.

The case is Williams v. State of Georgia, and no official citation is available at this time. The case hinges on Georgia's implied consent law.

ISSUE:

Shawn Williams was charged with vehicular homicide, reckless driving, driving while under the influence of a drug, following too closely, and serious injury by vehicle. He moved to suppress results of a blood test that police obtained from him without first informing him of his implied consent rights. [FN1] The trial court denied his motion, but certified the order for immediate review. We granted Williams' application for interlocutory review. For the reasons that follow, we reverse.

RULING:

The amendment at issue here, however, is different. It states that nothing in the implied consent law precludes the state from acquiring a defendant's voluntary consent to chemical testing, or admitting into evidence the results of that testing. The implied consent statute grants drivers the right to refuse to take a state-administered test, with one of the consequences of exercising that right being that evidence of such refusal is admissible at trial. Unlike the amendment at issue in the cases relied upon by the state, the amendment here eliminates the need to give the notice where an individual "voluntarily" agrees to testing. This amendment not only changes the substance of the implied consent warning, it does away with the requirement that the warning be given at all where an officer manages to otherwise lawfully obtain consent to testing. This is not merely a procedural or evidentiary change, but one eliminating a defendant's substantive right to refuse to submit to testing. Therefore, the trial court erred in applying the amendment retroactively and in denying Williams' motion to suppress.

For more about Georgia DUI Law, see also, Georgia DUI Penalties and Georgia DUI Process.

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Here's a freshly minted Virginia DUI case that denies relief based on a defense of sleepwalking. The case centers around Ambien.

The full opinion is here.

Because the circuit court did not make a factual finding that Riley was sleepwalking at the time of the charged offenses, and because Riley's unconsciousness defense was predicated solely on the assumption that he was in fact sleepwalking, Riley failed to meet his burden to establish his unconsciousness defense. Without that defense, the evidence established merely voluntary intoxication and was otherwise sufficient to sustain his conviction for maiming. We will thus affirm the judgment of the Court of Appeals of Virginia upholding Riley's convictions.

Scratch off one more novel attempted DUI defense as ineffective, at least in Virginia.

Learn more about Virginia DUI Law.

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On April 14, 2009, the Missouri Court of Appeals filed an opinion in the Missouri DUI case of State v. Richard Allen Edwards.

Mr. Edwards appealed the court's denial of his motion for a judgment of acquittal from his MO DWI arrest.

Defendant’s trial took place on April 25, 2008. The State presented testimony from Ayers. The Defendant chose not to present evidence. Defendant filed motions for judgment of acquittal at the close of the State’s evidence and the close of all evidence, both of which the trial court denied. After the jury instructions were read, and during deliberations, the trial court received a note from the jurors asking, “What is a DUI. What is a DWI. Are they both the same. Is it illega[l] to have a drink and th[e]n drive.” After discussing the questions with the parties, the trial court responded, “You must be guided by your recollection of the evidence and the instructions you have been given. No further instruction may be given.” The jury then returned a verdict of guilty of driving while intoxicated. On May 5, 2008, Defendant filed both a Motion for Judgment of Acquittal and Motion for New Trial. (emphasis added)

Look at the bolded quote above. This is the most common question that I hear asked by jurors in DUI cases. (As an aside, there are many acronyms for impaired driving, and the initials used typically indicate near identical charges from state to state, but some states chose one acronym, while others don't. Missouri happens to use "DWI" most commonly.) Now look at the answer the judge gave, also in bold. This is a variation of the most typical answer to jury questions in DUI cases.

The question is, is it a fair answer. Under Missouri DWI law it is not illegal per se to have alcohol and get behind the wheel of a vehicle.

Let's see what the Missouri Court of Appeals has to say about it.

Here, Defendant fails to adequately brief his third point on appeal. His argument section simply recites the relevant facts, makes a one-sentence conclusory statement, and then briefly argues policy. Glaringly absent from Defendant's argument is any supporting legal authority. We find that Defendant has abandoned this argument, and we decline to review this point on appeal.

Oops, a DUI defendant can't prove a negative. Sorry, appeal denied. Next.

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In a new case issued on 4/2/09 by the Montana Supreme Court, reasonable suspicion to stop for a DUI is reviewed and the case is affirmed.

The District Court’s decision to deny a motion to dismiss in a criminal case presents a question of law that we review de novo. We conduct plenary review to determine whether a district court’s conclusion is correct. State v. Howard, 2008 MT 173, ¶ 8, 343 Mont. 378, 184 P.3d 344. We review a district court’s denial of a criminal defendant’s motion to suppress evidence to determine whether the district court’s findings of fact are clearly erroneous and whether the district court’s interpretation and application of the law is correct.

The full opinion is here.

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An unpublished Idaho DUI opinion issued by the Court of Appeals of Idaho on March 2, 2009 reversed the lower courts finding that officers following a DUI suspect into her residence was illegal without a warrant.

Read the opinion here.

Here's why the court found that the police had probable cause to arrest for DUI prior to the defendant entering her house:

In this case, Deputy McFarland clearly had probable cause to arrest Finnicum for DUI before she retreated into the house. Finnicum’s son had informed him that Finnicum had been drinking all day, was highly intoxicated, and had recently driven away. About half an hour later, Deputy McFarland saw Finnicum driving on the adjacent public road and flagged her down. He then made observations that tended to confirm the report that she was intoxicated--she smelled strongly of alcohol, slurred her speech, had glassy and bloodshot eyes, and seemed confused. When Deputy Vrevich arrived, he noticed that Finnicum seemed unable to walk in a straight line. Collectively, this information amply provided probable cause for Finnicum’s arrest for DUI, and McFarland was authorized by state law to make a misdemeanor arrest without a warrant because the offense was committed in his presence. See I.C. § 19-603(1). Deputy McFarland not only possessed probable cause before he entered the residence, but he had already taken steps toward an arrest, notifying Finnicum that he suspected her of DUI and ordering her to stay by her vehicle while he finished interviewing her son. Although Finnicum initially complied, she ultimately disregarded this order and went into her residence.

The result of this case is predictable. Thinking about it logically, if the entry by police into the house under these circumstances was deemed unconstitutional, then anybody being pursued by police for an Idaho DUI would be on notice that if they could make it inside their residence before the police caught up to them, they would be safe from arrest (and then, of course, could quickly consume alcohol at home to further blur the issue).

I hate to say it, but I think the Court got this one right.

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In a new opinion issued on March 31, 2009 by the Pennsylvania Commonwealth court, a drivers license suspension was reversed because the officer could not establish that the person who had been arrested for DUI actually drove the vehicle, which he had left after an accident, after he had consumed the alcohol that caused his impairment.

Officer Brown could not reasonably conclude that Stahr was driving under the influence simply because he showed signs of intoxication when he exited the state trooper’s vehicle without further establishing the timeframe between the accident and the observed intoxication. No timeframe between the accident and arrest was established according to the evidence provided to the trial court. We cannot, therefore, conclude that Officer Brown had reasonable suspicion that Stahr was in control of his vehicle while under the influence of alcohol. Since there was no objective evidence to support Officer Brown’s suspicion that Stahr was driving under the influence, the order of the trial court is reversed, and Stahr’s operating privileges are reinstated. (Quoted from original opinion).

This is a good result and one that makes me hopeful that there is justice in the world this Wednesday morning.

It is not illegal to get drunk after an accident. The State, even in DUI cases, is supposed to have the burden of proof. Learn more about Pennsylvania DUI law and how PA DUI suspensions work.

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The Connecticut Supreme Court has issued a new actual physical control opinion, reinstating the conviction of a man who started the vehicle with a remote control and then sat in the vehicle but never drove.

The opinion can be read here.

Here is an excerpt from an article describing the case:

Conn. court restores non-driving DUI conviction - Projo 7 to 7 News Blog | Rhode Island news | The Providence Journal: "HARTFORD, Conn. (AP) -- Drunken people don't actually have to drive their cars to be charged with operating a motor vehicle under the influence of alcohol or drugs, the Connecticut Supreme Court ruled Monday.

The court's 5-to-0 ruling came in the case of Michael Cyr, who was arrested in Manchester in February 2005 in a parking lot near a bar. He had started his car remotely and then sat in the driver's seat intoxicated, but never put the key in the ignition and didn't drive anywhere.

Justices ordered the state Appellate Court, which had thrown out Cyr's conviction, to reinstate it and send the case back to Manchester Superior Court for sentencing.

Cyr, 50, of Andover, faces a year in prison followed by three years of probation. He pleaded no contest after a judge rejected his motions to dismiss the case. It's his third drunken driving conviction, following others in 1997 and 1998.

'In starting the engine of his vehicle remotely then getting behind the steering wheel, the defendant clearly undertook the first act in a sequence of steps necessary to set in motion the motive power of a vehicle,' Chief Justice Chase Rogers wrote in the opinion.

The 'motive power' phrase comes from a 1939 Connecticut court decision, cited by the Supreme Court on Monday, that defines what constitutes 'operating' a motor vehicle."

Clearly it is not a good idea to use your vehicle as a shelter to "sleep it off" if you need to use the vehicle's heater or air conditioning.

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Here's another example of MADD getting involved in the Court system and trying to push judges around. The law in most states is pretty simple. A credible witness must actually see a DUI defendant driving or in physical control of a vehicle in order for there to be reasonable suspicion to stop for a DUI. An random tip from an unidentified or unavailable tipster is typically not enough. And it shouldn't be. If somebody calls in a potential drunk driver and refuses to identify themselves or present themselves to the defense to be cross examined, then their observations should be be available to use against a person charged with DUI. If the tipster's information is the only information that gives rise to the stop or detention of the suspect, then without the tipster in court the case goes away. Simple. Just. Complies with the constitutional right to confront witnesses. MADD's spokesperson's heart is in the right place, but legally, he asks the judge to slide down a very slippery slope.

City appealing ruling on DUI tipsters - UPI.com: "TROY, Mich., March 21 (UPI) -- The city of Troy, Mich., says a district judge should not have dismissed a drunken driving case because the suspect was stopped based on a motorist's tip. Troy City Attorney Lori Grigg Bluhm said an appeal of Troy District Judge William E. Bolle's Feb. 24 ruling was filed because the officer involved in the traffic stop had reasonable cause to stop the suspect, The Detroit News reported Saturday. 'We believe the officer's stop was supported by reasonable suspicion, regardless of whether she personally observed erratic driving,' Bluhm said. The case began Nov. 11 when a 38-year-old man, whose identity was not reported, was stopped on suspicion of drunken driving after another motorist contacted authorities. While the suspect was found to above the legal blood-alcohol limit for motorists in Michigan, Bolle dismissed the charges because the police officer never personally witnessed any drunken behavior by the suspect. Mothers Against Drunk Driving representative Richard Rondeau has also questioned the judge's ruling, the News said. 'What are we supposed to do, wait for people to be killed before you arrest a drunk driver?' Rondeau said."

Learn more about Michigan DUI Law, and about reasonable suspicion in DUI cases.

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In a new Georgia DUI Opinion, the Georgia Court of Appeals reversed a DUI dismissal based on defective charging documents.

The case is Georgia v. King, and the opinion was issued on March 2, 2009.

For an indepth discussion of the case, see DUI Attorney News, and learn the Georgia DUI Law basics.

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The California Court of Appeals, Second Appellate District, Division Three for Los Angeles County filed an opinion on February 20, 2009 in the case of The People v. Martinez. This California DUI and vehicular manslaughter opinion discusses the issues of:

1. Causation; and
2. Lesser included offenses.

The lesser included offense issue apparently came down to who was named as a victim in what charge.

Interesting read. For more in-depth analysis, see also DUI news.

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In a Kansas DUI case released on February 13, 2009, the Kansas Court of Appeals discussed the regulations that govern the admissibility of breath test results in Kansas DUI cases.

According to the opinion, "the sole issue in this appeal is whether the district court properly determined that the procedures used for Mitchell's breath test substantially complied with the KDHE requirements."

The case goes through a careful consideration of the KDHE regulations and concludes that they weren't followed in this case. Therefore, the license suspension is reversed.

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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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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.

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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.

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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.

...

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.

...

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.

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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.

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The District Court of Appeal of Florida, Fifth District, reversed a conviction for DUI based, in part, on the trial judge seating a juror who had expressed bias. In Ibarrondo v. Florida, decided on December 24, 2008, the court wisely held that the prosecutor's rehabilitation of the trial juror did not erase his bias and required a reversal of the DUI conviction. Quotes from the case dealing with DUI juror bias:

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.

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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.

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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.

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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?

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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.

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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.

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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.

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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.

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The Court of Appeals of Kansas upheld the conviction of a DUI defendant when the trial judge refused to allow the defense lawyer to question the officer about other people not being able to do the field sobriety tests.
 

The Cite: Kansas v. Garcia, Court of Appeals of Kansas, Opinion issued November 26, 2008.
 

Quote from the opinion:

The trial court did not err in ruling Garcia could not ask the trooper about specific contents of the NHTSA manual without first producing the manual.

The fact that other people are unable to complete the test, whether because of their own intoxication or some physical ailment, does not have any tendency in reason to prove or disprove Garcia's impairment. The trial court did not abuse its discretion in concluding this evidence was irrelevant.

My Analysis: Now, more than ever before, it is important to go into every DUI trial armed with an expert who can discuss the meaning of the NHTSA and other supporting studies to challenge the field tests. In this political climate, a defense lawyer should never rely on “getting it from the officer.” There are just too many things that can go wrong, the most obvious of which is that the officer can lie or claim a lack of knowledge to discuss the NHTSA manuals.

This is a terrible ruling, and one that shows the lengths to which some trial courts will bend over backwards to make it easy on DUI prosecutors. It also shows the trend of appellate courts to leave the trial judges' bad decisions alone.

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This DUI hits just keep on coming. Here is a gem out of the Court of Appeals of Minnesota.

In most states the Preliminary Breath Test (PBT) is considered junk science and can’t be used against a DUI defendant.  Minnesota decided that not only is it admissible, but that it can be administered by non-law-enforcement jail personnel, and then used to satisfy Admin Per Se in a license suspension action. Not to let this prosecution of what sounds like a nasty DUI related assault go down the systems drain in the interest of protecting the Constitution, the court then held that a two-minute opportunity to contact an attorney is sufficient to avoid a right to counsel violation.

The Cite: Mell v. Commissioner of Public Safety, Court of Appeals of Minnesota, Opinion issued November 25, 2008.

A PBT can be administered by a non-officer jail employee, and then used to satisfy Admin Per Se:

We reject the claim that the administration of the PBT by the jailer was improper simply because it was not done incident to Minn.Stat. § 169A.41. That statute does not limit use of the PBT to traffic stops.

We conclude that Chisago County's legitimate interests in operating its jail safely outweighed appellant's claim of privacy, that the administration of the PBT was justified by legitimate government interests in operating the jail, and that the administration of the PBT did not violate either the federal or state constitutions.

In this case, Officer Puelston personally detected the odor of alcohol on appellant and observed that appellant had been driving. Later in the evening, he learned that appellant took a PBT and had an alcohol concentration of more than 0.08. With this information, Officer Puelston had probable cause to believe that appellant was violating Minn.Stat. § 169A.20 and the authority to read appellant the implied-consent advisory.

A two-minute window of opportunity what a phone and phone directory in the middle of the night was sufficient access to counsel:

We recognize that appellant's arrest and his implied-consent decision were made late at night and that Deputy Puelston decided that he had vindicated appellant's right to counsel after only a few minutes. Nonetheless, based on the totality of the circumstances, we conclude the record adequately supports the district court's finding that Deputy Puelston vindicated appellant's right to counsel by providing a telephone, directory, and time to make contact with an attorney and the finding that appellant ended any good-faith effort to contact an attorney by the time he was asked whether he would take the test. Consequently, we conclude that appellant's right to counsel was not violated.

My Comments: Allowing a non-commissioned jail employee to collect this type of evidence creates an excellent opportunity for those to whom DUI defense attorneys refer as “cop wannabes,” to “play one on TV.” This is a slippery slope, and very slippery at that, when it starts with allowing the application and use of junk science like a PTB.

This opinion is published and is now apparently the law of the land in Minnesota, so I have to believe that the Court of Appeals gave the issue ample thought.

On the other hand, with the right to counsel issues, other states have created a reasonable per se time frame for a DWI suspect to contact an attorney. Two minutes is the shortest I have seen, but since they used to trusty old “totality of the circumstances” rational, this part of the opinion appears to apply on a case-by-case basis and leaves open the possibility that in another Minnesota DUI case a two-minute window could be held unconstitutional.

 

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In a stunning reversal of a DUI dismissal, the Court of Criminal Appeals of Tennessee sent a case back to the trial court finding that the trial judge abused his discretion in ruling that the chain of custody for the blood test had not been established.

The Cite: Tennessee v. Dyer, Court of Criminal Appeals of Tennessee, Issued November 19, 2008.

The facts (which rely on hearsay and speculation to establish):

The facts of the case herein reveal that Officer Mara took Appellee to the hospital and witnessed what he believed to be a nurse or a nurse practitioner draw Appellee's blood and place it into the blood kit that Officer Mara provided. There is no indication that his belief was incorrect. Officer Mara testified that he placed the blood kit in the trunk of his car and transported it back to police headquarters where he placed it in an evidence bag and put it inside an evidence locker. The key to the evidence locker is possessed only by the evidence technician at the police department. Special Agent Crews testified that the blood sample was hand-delivered to the TBI by Mike Durham and received by the TBI evidence technicians. Special Agent Crews explained the TBI procedure for the receipt and processing of blood samples. The sample was sealed when it was received by Special Agent Crews, and he had "no reason to believe the blood sample wasn't in good condition."

The strange ruling:

We determine that the State sufficiently established the chain of custody of the blood sample. Therefore, the trial court erred in excluding the results of the blood test, dismissing the indictment, and dismissing the case with prejudice. Accordingly, we reverse and remand this case for reinstatement of the indictment and a new trial.

My comments: This one is a hard DUI decision to swallow. My guess is that this opinion remains unpublished because it is so bad. My hope is that they attorneys involved take this case up higher. To allow the evidence presented here to suffice as a proper chain of custody effectively renders a bad chain of custody in Tennessee an affirmative defense for which the DUI defendant has the burden of proof.

My hat goes off to the trial judge who did the right thing.

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A Florida appellate court has reversed an implied consent license suspension in DUI case where the Administrative Law Judge failed to consider the legality of the petitioner’s arrest.

The Cite: District Court of Appeal of Florida, First District. William HERNANDEZ, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. No. 1D08-1424. Nov. 21, 2008. See Hernandez v. Florida Department of Highway Safety and Motor Vehicles.

The Holding: This court's review is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Section 316.1932 unambiguously provides that a driver has impliedly consented to submit to a breath or blood test only when such is incidental to a lawful arrest. Given this clear statement of law, the circuit court here erred when it held that the DHSMV hearing officer did not err when it failed to consider the legality of Hernandez' arrest. We therefore grant the petition for writ of certiorari, quash the circuit court's order denying certiorari relief and remand the cause to the circuit court for further proceedings consistent with this opinion.

My Comments: Good ruling. Often times bad rulings from ALJs go unchecked because the cost of an appeal outweighs the potential benefit. The DUI defense lawyers in this case did an excellent job and the appeals judge made the right decision.

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North Dakota has a law that absolves people of criminal culpability if they drive impaired by prescription medications when used as directed. This case tests the reach of that law and what must be provided and proved for a DUI defendant to succeed with such a claim.

The Cite: Supreme Court of North Dakota. STATE of North Dakota, Plaintiff and Appellee v. Jennifer Marie BITZ, Defendant and Appellant. No. 20080101. Nov. 19, 2008.

Relevant excerpts from the opinion:

We begin by noting that there is no argument on appeal that Bitz was not impaired on November 21, 2007; rather, the crux of her argument involves whether over-the-counter medications are included within the purview of N.D.C.C. § 39-08-01(1), and whether there was sufficient evidence that she violated this section. We also note that no evidence was introduced at trial to establish which drug or drugs predominately caused Bitz's impairment on the road. Further, the State did not introduce evidence linking the medications found in her urine with her impairment. Notwithstanding the shortcomings in the evidence, the language of the statute and the latitude accorded the jury in drawing reasonable inferences from the evidence requires us to conclude that a rational factfinder could have found Bitz guilty of driving while under the influence of drugs.

At trial, the forensic scientist testified to the effects and classifications of the drugs found in Bitz's urine sample. Tramadol is a prescription analgesic used to treat pain. Two bottles of Tramadol prescribed to Bitz were admitted into evidence, and neither contained a disclaimer warning against driving after taking the medication. No testimony was presented by the prescribing practitioner. The forensic scientist testified that acetaminophen, ibuprofen, and naproxen are all over-the-counter analgesics, most commonly found in Tylenol, Motrin, and Aleve, respectively. Diphenhydramine or dimenhydrinate is most commonly found in Tylenol PM and Benadryl.

Bitz argues there was insufficient evidence to sustain her conviction for driving under the influence, because she met her burden of proof under N.D.C.C. § 39-08-01 by showing her impairment was caused by a medication prescribed by a physician, and she took that medication as instructed by the prescription. Bitz preserved the issue of sufficiency of the evidence for appellate review.

Likewise, a person can be under the influence of drugs even if the drugs taken by that individual were over-the-counter medications, so long as the drugs or substances had an intoxicating effect or impaired the person's ability to operate a vehicle. While Bitz argues her intake of over-the-counter medications is irrelevant to her ability to drive, the legislature's focus on limiting the defense to prescribed drugs, our rules of statutory interpretation, and our prior legal analysis in Thornton on the scope of intoxicating substances, indicate otherwise.

Analysis: As with any affirmative defense in DUI cases, it is highly improbable to succeed unless presented with strong factual backing. This case could have succeeded on the facts if the prescribing doctor was brought in to testify and eliminated the non-prescription drugs as contributing factors to impairment.

An aside: If the goal is to prevent accidents, then why should prescription medication have its own affirmative defense? I wonder this in the context of alcohol impairment cases, which totally lack a mens rea (guilty mind) element. In other words, a drunk driver does not need to intend to drive drunk nor possess any knowledge that he is impaired. This law from North Dakota seems like a double standard that favors big pharmacy. It also seems like an impossible judicial standard to govern.

 

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The United States Court of Appeals, Ninth Circuit, has held that a California conviction for DUI/manslaughter, in the absence of gross negligence, didn’t qualify as a “crime of violence” for the purpose of enhancing a sentence for previous post-conviction deportation for a felony.

The Cite: United States Court of Appeals, Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Javier GOMEZ-LEON, Defendant-Appellant. No. 05-50138. Argued and Submitted March 4, 2008. Filed Sept. 24, 2008.

Relevant quotes from the case:

Gomez was not convicted of ordinary involuntary or vehicular manslaughter, as California defines it; he was convicted of vehicular manslaughter while intoxicated, a particular type of manslaughter. Some states have created special statutes to punish drunk driving homicides as “a number of states have enacted statutes creating the new crime of homicide by automobile.” See 2 LaFave, supra, § 15.4(e) (stating that such a statute is “related to the crime of manslaughter but is not manslaughter proper”). Typically, such statutes require proof of intoxication while driving a vehicle and are punished less severely than manslaughter. 2 LaFave, supra, § 15.4(e). Commensurate with lesser punishment is a lesser mens rea requirement, where the state often permits conviction under the statute when the defendant has a mens rea that is less than recklessness…

Since Gomez's conviction under California Penal Code section 192(c)(3) (1998) for “vehicular manslaughter while intoxicated without gross negligence” is an offense that requires only proof of ordinary negligence, it cannot fall within the contemporary meaning of manslaughter as enumerated in U.S.S.G. § 2L1.2 cmt. 1(B)(iii). Therefore, the district court erred in finding that it was a “crime of violence” for the purposes of applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Neither Gomez's conviction for a “drug trafficking offense” nor his conviction under California Penal Code section 192(c)(3) justifies the application of a sixteen-level enhancement under U.S.S.G. § 2L1.2(b). Consequently, Gomez's sentence is vacated and the case is remanded to the district court for re-sentencing in a manner consistent with our opinion.

Analysis and significance: This case is sure to touch a nerve among those debating the illegal immigration issue. On the one side is the argument that this guy is a felon. He was here illegally. He was deported. He came back. He then killed somebody, albeit by negligence.

On the other hand is the argument that a DUI manslaughter is not an intentional killing in the conventional sense, and a person, legally in the country or not, should not be punished disproportionally by virtue of who he or she is, and that we should all be punished based only on what we have done.

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In a Missouri DUI license suspension case, the Missouri Court of Appeals upheld the admissibility of evidence concerning the metabolic curve of the driver. This scientific principal goes by a variety of different names, the most common of which is probably “retrograde extrapolation.” The idea is to predict an alcohol level at a point other than that at which the blood or breath test was taken.

The Cite:  Krieger v. Director of Revenue, --- S.W.3d ----, 2008 WL 4200774, Mo.App. W.D.,2008. September 16, 2008

Relevant excerpts from the opinion:

In his sole point on appeal, the Director asserts that Krieger did not rebut his prima facie case. In particular, the Director contends that the circuit court erred in admitting the results of Martinez's calculation of Krieger's blood alcohol content based upon the “metabolic curve.”

Martinez based his “metabolic curve” calculation upon information that Krieger stopped drinking only five to ten minutes before she was stopped by the police.

Analysis: Most DUI defendants are under the mistaken impression that drinking a lot right before the stop hurts their case. Especially in breath test cases, the opposite is often true. The closer in time the last drink to the application of a breath test, the more likely it is that the person was still in the absorptive phase of alcohol metabolism. In the absorptive phase, studies show that a person’s average partition ratio is lower than the 2100:1 that all breath test devices are programmed to expect. Therefore, as long as the DUI defense lawyer is allowed to present this evidence, drinking close to the time of the stop is helpful in breath test cases.

The trend amongst states is to legislate out the defense’s ability to present retrograde testimony. The most common way of doing so is to make any alcohol level above the legal limit within 2 hour of driving per se illegal. In an extreme example, a person could chug a pint of vodka, immediately get into the car, and immediately get pulled over leaving the bar parking lot two minutes later. At the time of driving the person could be under the legal limit of .08. An hour later that same person, having consumed no additional alcohol, could be above a .20.

Aside – DUI cases are not about fairness: It hardly seems fair to prosecute a person from “drunk driving” when they weren’t drunk or impaired while behind the wheel. The short answer is that the law doesn’t care about the reality of impairment, only what fits into the purview of the statute under which prosecution is pursued. All DUI lawyers know this already, but for my non-attorney readers and the young ones who are still under the illusion of fairness, this aside is for you.

 

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The California Court of Appeals has ruled that, essentially, a judge did not harm a DUI defendant’s case by refusing to accept a plea of guilty. This case has not been officially published in California.

The Cite: Court of Appeal, Sixth District, California. The PEOPLE, Plaintiff and Respondent, v. Gabriel COLIN, Defendant and Appellant. No. H032202. (Santa Cruz County Super. Ct. No. F14255). Nov. 12, 2008.

Excerpts from the opinion:

Milligan asked the city court on March 20, 2007, to enter a guilty plea to the DUI and other related citations. The city court informed Milligan that it wished to confer with counsel for the State, who was out of the office that day, before it accepted Milligan's plea. The State moved to dismiss the DUI and related citations approximately a week later. The city court granted the State's motion over Milligan's objections.

---

The court in Peplow determined that Montana statutes confer upon a defendant the right to plead guilty to the crime charged "before or during trial," pursuant to § 46-16-105, MCA. Thus, the court concluded that the district court had erred in refusing to accept Peplow's guilty pleas to several pending charges at the beginning of the trial. Peplow, ¶ 43. This conclusion did not end the inquiry. The Court proceeded to address whether the district court's error in denying Peplow his statutory right to plead guilty prejudiced Peplow's defense to the other pending charges. Peplow, ¶¶ 46-56. The Court deemed that the error constituted a type of trial error susceptible to harmless error analysis. Peplow, ¶ 46.

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The court in Peplow held that the district court's refusal to accept his guilty plea prejudiced his defense. Peplow, ¶ 56. Peplow attempted to enter his guilty plea to two of his five charges pending in the district court. Peplow, ¶ 12. The jury ultimately found Peplow guilty on all charges. Peplow, ¶ 16. Here, by contrast the State moved to dismiss the DUI charge against Milligan in city court. The city court granted the motion and dismissed the DUI charges. Milligan fails to explain how the city court's refusal to accept his guilty plea to the DUI charges prejudiced him with respect to the final resolution of the DUI charges in light of the fact that the city court dismissed the DUI charges. We can see no prejudice under these circumstances and deem harmless any error that the city court may have committed in denying Milligan his statutory right to plead guilty to the DUI charges.

Analysis and Opinion:  There are plenty of reasons why a DUI defendant would want to plead guilty, and why the prosecutor may not want that to happen. The most obvious reason is so that double jeopardy attaches and the defendant can’t be tried again.

Some states have cases or statutes designed to thwart the double jeopardy angle when a defendant pleads guilty while hiding information such as the existence of an allegeable prior conviction. Nevertheless, a plea of guilty often times shuts down any inquiry that the prosecution may make into the defendant’s history.

Another reason that a DUI defendant might want to plead guilty to a charge is so that a jury would not hear about it when deciding the more serious counts in a multi-charge prosecution. For example, if a person is pulled over for misdemeanor DUI and it is discovered that he has a trunk full of drugs, he may plead to the less serious DUI to try to prevent the jury from hearing that he was also drunk when it decides his fate on the felony drug charges.

A defendant’s right to plead either guilty or not-guilty is sacred. It is my strong belief that if the State brings criminal charges against a citizen, the State should be ready with all of the information. In other words, if the prosecutor alleges DUI, they should hold off filing the charges until they ascertain whether prior DUI convictions exist. If they exist, then allege them immediately. If not, don’t whine when a defendant tries to plead guilty that more time is needed to investigate the person’s criminal history.

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The Montana Supreme court, in an unpublished DUI case shows that a vague factual conclusion does not always support an appeal. The lesson to be learned is to always tie your judge down.

The Cite: Supreme Court of Montana. STATE of Montana (City of Great Falls), Plaintiff and Appellee, v. Kimbrli Lavon ROSS, Defendant and Appellant. No. DA 07-0740. Submitted on Briefs Sept. 3, 2008. Decided Nov. 10, 2008.
 

Despite Ross's claim that the Municipal Court rejected evidence from Officer Scheer that Ross's tires hit the curb as it completed the turn onto First Avenue North, there is no evidence to support this contention. The Municipal Court stated the following in its findings of fact:

The officer also testified that the defendant cut the corner at 15th Street and First Ave N. causing her tires to rub against the curb; the defendant disputed that testimony and the videotape did not show the maneuver.

Contrary to Ross's interpretation, the fact that the court recognized that the videotape did not show the bumping of the curb does not mean that the court thereby rejected the officer's testimony that Ross's tires rubbed the curb. Read in context, it is clear that the court accepted Officer Scheer's testimony on this point. We do note that it would facilitate review of decisions if courts, in their fact finding would make declarative findings of fact, instead of merely reciting what a witness said. Such declarations of fact should, of course, be based upon testimony or evidence before the court.

ANALYSIS AND PRACTICE TIP: Tie the judge down on the record. Make sure that there is not any wiggle room factually when you must appeal under an abuse of discretion standard. DUI cases require follow up.

It surprises me when I see DUI lawyers who otherwise did a great job in a motions hearing blindly accept a vague ruling from a judge. Ask for clarification when it is warranted. If the judge refuses to give it, say something like "Your Honor, I understand your ruling to mean..." and then spell out the conclusion that you need to support your record on appeal. Even if the judge clarifies against your client's interest, you are better off knowing at the trial court level rather than waiting for the Supreme Court to shoot you down. Your client will appreciate that you at least saved him the additional cost of a pointless appeal.

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In the Court of Appeals of Oregon. - STATE of Oregon, Plaintiff-Respondent, v. Brett Alan VEATCH, Defendant-Appellant. D052111T; A132040., Argued and submitted on March 10, 2008. Decided Oct. 29, 2008.
 

From the defense perspective, this opinion starts out bad and then gets very good at the end. First, the court affirms that an officer doesn't have to give a defendant privacy to talk with an attorney until contact with a live attorney is made.

Consistently with Durbin, we conclude that defendant's reasonable opportunity to consult with counsel was not violated because Berry remained in the room while defendant left messages and asked his mother for a referral. Indeed, as we noted in State v. Matviyenko, 212 Or.App. 125, 130, 157 P3d 268 (2007), "an officer may be justified in remaining in the room until contact with an attorney is made in order to ensure that the suspect actually calls an attorney rather than using the telephone for some inappropriate purpose." The trial court did not err in denying the motion to suppress.

The court also considered the issue of whether a curative instruction was sufficient, and if not, whether the failure of defense counsel to specifically object to the content of the instruction failed to preserve the issue for appeal.

The court found that the issue was preserved:

We next consider the state's contention that defendant's failure to object to the sufficiency of the curative instruction nullified his mistrial motion for purposes of this appeal. We conclude that it did not. Neither we nor the Supreme Court have ever held that, when a trial court gives a curative instruction in response to objectionable testimony, the defendant must object to the sufficiency of the instruction in order to be permitted to raise on appeal an otherwise properly preserved mistrial motion based on that testimony. In short, if the court chooses to give a curative instruction rather than declare a mistrial, any error in denying a preserved mistrial motion remains preserved regardless of whether the defendant objected to the sufficiency of the instruction.

The issue of the adequacy of the curative instruction regarding Defendant's request for counsel was next considered:

The state agrees that it is improper to admit evidence of a defendant's invocation of constitutional rights, but it argues that the curative instruction was sufficient to ensure that defendant received a fair trial.

The court decided the issue of whether the curative instruction was sufficient to divert the jury's attention from an inference of guilt based on the request for counsel.

We conclude that Berry's statement likely gave rise to an adverse inference of guilt. The jury was informed that defendant had invoked the right to counsel in response to being asked whether he would submit to a potentially incriminating breath test. Berry's statement was not incidental to some other point that the jury was more likely to be focusing on. As defendant argues, under the circumstances, a jury would likely infer that a person arrested for DUII would not ask for an attorney unless he or she was concerned about failing the breath test-in other words, a jury would likely see it as a tacit admission of guilt. Because nothing in the context diverted the jury's attention away from that inference, we cannot say that it is unlikely that the jury drew it.

Here's the instruction that was given by the Judge:

As noted above, the court instructed the jury that "a person has a right to call their lawyer and you're not supposed to make any inferences from that, since they have a right to do it. And so the State's not even supposed to bring it up. * * * The seven of us are going to totally ignore it * * *."

Here's what the Oregon Court of Appeals said:

Because Berry's testimony was prejudicial to the defense and the trial court's instruction did not cure that prejudice, the court abused its discretion in denying defendant's motion for a mistrial.

ANALYSIS: It takes a lot to find an "abuse of discretion" in cases where the trial judge is in the best position to assess the impact of words on a jury in the courtroom. Kudos to the Oregon Court Of Appeals for getting this right. As we say "that is a bell you can't unring."

AN ASIDE: This week has seen a slew of new DUI cases from across the nation that are favorable to the defense. DUI defense lawyers should rejoice in their efforts. While the Constitutional Rights of those accused of DUI/DWI continues to be eroded by state legislators, it is good to see that the appellate benches are making the right calls.

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In a new, yet unpublished opinion, the Court of Appeals of Mississippi in Mary Reed EVANS, Appellant v. STATE of Mississippi, Appellee. No. 2007-KM-00443-COA, issued on Oct. 28, 2008, ruled that retrograde extrapolation testimony is admissible in a DUI case to show a defendant's projected alcohol level at the time of driving when the alcohol test came over an hour after driving. The holding of the Court was:

For the foregoing reasons, we find the circuit court abused its discretion in excluding the evidence of Evans's consumption of alcohol and the expert testimony of Dr. Rosenhan. Additionally, we reject the State's argument that Dr. Rosenhan is not qualified as an expert in retrograde extrapolation. Accordingly, we reverse and remand for a new trial in accordance with this opinion.

The Westlaw cite for this case is2008 WL 4712062.  We will provide a published cite if it becomes available.

ANALYSIS: In many states, the Per Se DUI law that was the subject of this case has language that the Per Se Limit (typically .08 or greater) just has to be proven within two hours of driving. Some states have legislation or caselaw that renders retrograde testimony irrelevant as long as the alcohol test sought to be admitted to prove the Per Se violation was obtained within 2 hours of driving.

This ruling is certainly good for the defense. However, if published, it may open the door to a higher court imposing a time limit of retrograde testimony. In my opinion, it is best for this case to remain unpublished for now.

 

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