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v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).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.
Complex DUI license issues
One of the most frustrating parts of dealing with DUI and vehicular cases is the cross-over collateral issues with the Motor Vehicles Department. This new case out of Pennsylvania illustrates the complex interplay of criminal and civil licensing issues.
Excerpts (I highly suggest that you read the whole opinion in this case to get the full import of the complexity of the interplay):
Finally, Licensee's argument that he was not sentenced under the proper section of the Vehicle Code, must be heard on an appeal from his underlying criminal conviction, not before this Court. Licensees may not collaterally attack an underlying criminal conviction during a civil license suspension proceeding. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994). Thus, PennDOT properly imposed a one-year suspension of Licensee's operating privileges because competent, unrebutted evidence established Licensee was not sentenced under 75 Pa.C.S. § 3804(a)(1) and therefore was not entitled to the "no-suspension exception."
Therefore, we affirm the trial court's decision sustaining the one-year suspension of Licensee's operating privileges.
Analysis: DUI cases are extremely complex. The interplay of civil licensing issues and criminal penalties means that the practitioner must constantly keep on top of new developments in DUI law.
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.
Missouri DUI license case - metabolic curve testimony
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.
