New Arizona DUI Case: Hearing required in right to counsel case
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.
PBT given by jail employee is constitutional
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.
Oregon DUII Law - Curative instruction not adequate
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.
