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v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).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.
Ohio DUI conviction reversed based on bad jury instruction
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.
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.
