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 My guess is that this opinion remains unpublished because it is so bad.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.

The third issue on appeal in this case was: 

“(3) argues that the trial judge erred in permitting certain colorful but crude testimony describing the Defendant as "shit-faced" and by making disparaging comments about defense counsel in front of the jury”

What the officer said on the witness stand:  

“When asked if he noticed "anything else about [the Defendant's] demeanor or appearance," Officer Beeam responded, "Well, an intoxicated person has a look about them.... I call it 'shit-faced.' " According to Officer Beeam, the Defendant had "that look about him" on the evening in question. Officer Beeam witnessed Officer Monteith explaining the implied consent form to the Defendant, and Officer Beeam also affixed his signature to the form.”

Was the judge wrong, or just acting like a jerk in the following exchange taken from the record:

Q. Okay. You found out the driver's license had expired. How long had that been expired?
A. Well, I had to run them through the computer, I think they had been expired--
MR. ROGERS: Objection, your Honor.
THE COURT: Sustained.
GENERAL WINNINGHAM: Pardon?
THE COURT: Sustained.
GENERAL WINNINGHAM: I didn't hear what his objection was, your Honor.
MR. ROGERS: Hearsay.
THE COURT: It's not relevant. Move on.
Q. Do you know how long the license had expired?
MR. ROGERS: Objection?
THE COURT: Sustained.
GENERAL WINNINGHAM: Your Honor, may I approach?
THE COURT: You can approach.
(GENERAL WINNINGHAM APPROACHED THE BENCH AND THE FOLLOWING TOOK PLACE OUT OF THE HEARING OF THE JURY:)
GENERAL WINNINGHAM: Your Honor, we've discussed the records and—
THE COURT: Just ask him about the sheet.
GENERAL WINNINGHAM: I just wanted to make sure that I--
THE COURT: Go ahead.
(THIS CONCLUDED THE CONFERENCE AT THE BENCH AND THE FOLLOWING TOOK PLACE IN THE HEARING OF THE JURY:)
MR. ROGERS: Did I miss it?
THE COURT: Yes, you missed it.
MR. ROGERS: I'm sorry, Judge, I've got up as quick as I could.
THE COURT: You've got to move quicker.
MR. ROGERS: I guess I'm getting old, I can't move much quicker.
THE COURT: That's where us little people have an advantage sometimes.

The Ruling on issue(s) number three:

The Defendant failed to make a contemporaneous objection to either of the statements. "Objections must be timely and specific." Tenn. R. Evid. 103, Advisory Commission Comments. Relief is not available to a party who is responsible for, or fails to take action to prevent, an error. Tenn. R.App. P. 36(a). Additionally, the Defendant did not include the trial court's comments about defense counsel as error in his motion for new trial. Generally, issues are waived if they are not presented in a motion for new trial. See Tenn. R.App. P. 3(e). Accordingly, we conclude that the Defendant's assignments of error are waived.

 Nonetheless, we find it necessary to admonish the trial court. A bench conference should not have been conducted without defense counsel, and the trial judge's comments to defense counsel following the bench conference, regarding his stature and girth, were inappropriate, particularly when made in front of the jury. See Tenn. R. Sup.Ct. 10, Canon 3B(4), (5). Moreover, the trial court should have preserved the dignity and decorum of the courtroom by admonishing Officer Beeam for his crude and vulgar language. See Tenn. R. Sup.Ct. 10, Canon 3 B(3). However, the record does not establish that the trial court's actions deprived the Defendant of a fair trial.

Analysis and practice tips: That’s life in the big city folks. A trial judge can bully the defense attorney all he wants. The less competent the trial attorney (or the worse day she is having) to more leeway the trial judge has to be jerk.

The issue comes down to did the defendant and his lawyer jump through the proper procedural hoops? The answer is that they did not. No timely objection. No mention of the issue in the motion for new trial. Sorry, no love from the court of appeals

Warning: This opinion is not currently published so use caution in citing as authority.

The Cite: Court of Appeals of Arizona, Division 2, Department A. The STATE of Arizona, Respondent, v. Jose Luis Velasquez ORDUNA, Petitioner. No. 2 CA-CR 2008-0048-PR. Nov. 13, 2008.

The facts as taken from the opinion:

In 2001, Orduna was indicted on charges of aggravated assault with a deadly weapon or dangerous instrument, criminal damage, leaving the scene of an accident involving injury, driving under the influence of an intoxicant (DUI), driving with an alcohol concentration of .10 or more, and driving under the extreme influence of intoxicating liquor. The state offered a plea agreement allowing Orduna to plead guilty to aggravated assault, criminal damage, and misdemeanor DUI but withdrew that offer when Orduna absconded and did not appear at the change-of-plea hearing....

After he was apprehended, Orduna moved for an order directing the prosecutor to reinstate the plea offer. He asserted his counsel had inadequately explained it to him and suggested that he would have accepted the plea agreement and not absconded if counsel had been effective. The trial court denied his motion after an evidentiary hearing, and a jury found Orduna guilty of all charges except leaving the scene of an accident. The court sentenced him to concurrent terms of imprisonment, the longest of which was six years...

Analysis and commentary: It is extremely common in criminal cases, especially felonies, that the defendant blames the attorney upon conviction. While it is important to always work in the client’s best interest, it is also important to make sure that the client’s file is documented with every conversation.

For highly favorable plea agreements, it is also a good practice to put the terms of the agreement in writing and present it to the client. This will help avoid a misunderstanding about the terms of the plea agreement, and will also protect the lawyer in the even the client later claims that the agreement wasn’t presented.

This case occurred in Arizona. In Arizona criminal cases, a “Donald” hearing is available. At that hearing, the terms of the plea agreement are presented to the defendant on the record in open court, and the deadline for accepting the plea agreement is also stated. This protects the defense lawyer from claims such as the defendant in this case made. More importantly, it protects the defendant from an attorney who may have forgotten to explain the terms or the deadline.

As always, the most important thing to keep in mind when representing DUI clients is communication. It is better to repeat yourself several times than to risk your client either not hearing your message or not understanding it.