New Pennsylvania DUI refusal suspension case
In a new Pennsylvania DUI case, decided on January 7, 2009, the Commonwealth Court of Pennsylvania upheld the 18 month suspension of a driver accused of DUI.
The case is William SCHLAG v PennDOT, Bureau of Driver Licensing, and it goes through an analysis of what the DOT must show in a DUI refusal hearing.
Quotes from the opinion:
As to the merits, we note, to sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, PennDOT must establish a licensee: (1) was arrested for DUI by a police officer who had reasonable grounds to believe the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned refusal might result in a license suspension. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).
As to the merits, we note, to sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, PennDOT must establish a licensee: (1) was arrested for DUI by a police officer who had reasonable grounds to believe the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned refusal might result in a license suspension. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).
Comments:
Nothing noteworthy about this opinion except it gives a good outline of what Pennsylvania courts will consider in regards to refusal hearings. It shows how much power and discretion the average Pennsylvania police officer has over a citizen accused of DUI, and how difficult it is to save a drivers license from PennDOT even if you were not the driver of the vehicle, when an officer alleges you refused the DUI chemical test.
Minnesota DUI Case: refusal suspension upheld
In a Minnesota DUI case, the Court of Appeals affirmed the implied consent license revocation of a person who did not provide an adequate breath sample. The officer deemed it a refusal when the Intoxilyzer timed out, and that was it.
The Cite: Londo v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).
The relevant facts from the opinion:
After four attempts to get appellant to blow into the Intoxilyzer, the device timed out without an adequate breath sample. Deputy Sturm, who was present during the Intoxilyzer test, informed appellant that because she did not blow into the machine, she was deemed to have refused the test. Appellant was then taken to booking. After a couple of minutes, Deputy Sturm initiated the revocation of appellant's driver's license and again told appellant that she was being deemed to have refused the breath test.
The holding that shows that in civil DUI license proceedings, there is a very low level of protection of drivers’ rights:
Appellant also argues that due process requires Deputy Sturm to have given her a chance to cure her refusal. In support of her assertion, appellant directs this court to State v. Netland, 742 N.W.2d 207 (Minn.App.2007), review granted (Minn. Feb. 27, 2008). In Netland, we held that in the criminal context, due process requires a testing officer to provide an alternative method of chemical testing where a driver is deemed to refuse a chemical test because of an inadequate breath sample but seeks additional time to provide an adequate sample and an alternate mode of chemical testing. Id. at 223.
The district court found Netland similarly unavailing to appellant's argument. We agree with the district court. Appellant's license revocation is a civil matter, whereas Netland was a criminal case. As we stated in Netland, "[t]he minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction." Id. at 219. We have previously held that "[i]n the civil implied-consent context, '[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.' " Id. (citing Smith v. Comm'r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987)). Therefore, Deputy Sturm was not required to provide appellant with an alternative test after appellant was deemed to have refused the breath test.
My rant… er, comments: From a defendant’s perspective, prepared to get *&$#@ed at the DMV. Because the civil standard provides so little Constitutional protection, as long as the administrative law judge crafts the findings of fact to support their conclusion, there is often little even a very skilled DUI lawyer can do to stave off the refusal suspension.
English implied consent warnings okay for non-english speaker
The Supreme Court of Iowa held that advisement of a non-English-speaking defendant of his implied consent warnings in English was sufficient under the circumstances when the defendant “seemed to understand” at the time, even though Miranda was conveyed in Spanish through the use of a Spanish Miranda Card.
The Cite: State v. Garcia, 756 N.W. 2d 216, Iowa Supreme Court, Issued September 19, 2008
Excerpts from the opinion:
Strunk transported Garcia to the Wapello County jail. At approximately 5:10 p.m., Strunk attempted to read Garcia his Miranda rights, and he advised her that he did not understand English. She then gave him a copy of his Miranda rights in Spanish. Garcia signed a form, written in English, which listed his Miranda rights. Strunk then read Garcia the implied consent advisory in English, and she asked him if he understood. Garcia said that he would do what Strunk wanted, “no problem.” Garcia signed the Iowa Department of Transportation “Request and Notice Under Iowa Code Chapter 321J/Section 321.208” form, written in English, which stated in pertinent part that he consented to give a sample of his breath. Garcia submitted to a Datamaster breath test, which registered his BAC at .144. No attempts were made to communicate the implied consent advisory to Garcia in Spanish. Garcia testified that he signed the implied consent advisory “because the official told [him] to sign” and that he understood nothing that was written on the form. At approximately 5:24 p.m., Strunk read Garcia his notice of revocation.The primary issue on appeal is whether Iowa Code section 321J.8 requires a law enforcement officer to make reasonable efforts to convey the implied consent warning to a non-English speaking person.
We turn then to the question of whether, under the circumstances presented to Officer Strunk, she used those methods which would reasonably convey the implied consent warnings to Garcia. Officer Strunk testified that she could understand Garcia and he seemed to understand her. There were numerous conversations between Strunk and Garcia with little apparent difficulty in communicating. Garcia signed the implied consent form, and he did not indicate that he did not understand. It was not until the motion to suppress that his lack of understanding was raised. Applying the “reasonable efforts” standard to the facts and circumstances of this case, we hold that Officer Strunk, under the circumstances facing her at the time of the arrest, utilized reasonable methods to reasonably convey the implied consent warnings to Garcia.
My Comments: Non-English speaking defendants put officers in a particularly tough position. It is easy to claim a lack of English skills to get out of things such as jury duty. Judges see this every day. So it is difficult to sort out who actually doesn’t understand and who is using a selective lack of understanding as their legal defense. People who use a lack of understanding of English as a legal excuse, when they don’t need to, seriously undermine the credibility of those who would actually need this as a legal defense.
Practice Note: Any private attorney with a client who wants to present such a defense should look at their fee agreement and their office interactions with the client. If you, as the lawyer, don’t speak the language the client is claiming he/she needed the advisements to be read in, and if your fee agreement is in English and signed by the client, you may be on ethically shaky grounds in presenting such a defense If you can communicate with the client in English, then be careful about presenting a lack of the client’s English skills as a defense in court. As a practical note, if you go through with representing such a client, no matter how it turns out, you may be on the receiving end of a void for lack of understanding argument about your fee agreement.
Florida DUI refusal license suspension reversed by appeals court
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.
