Posted on June 03, 2013 in DUI

City of Hutchinson v. Davenport
30 Kan.App.2d 1097, 54 P.3d 532 (2002)

A bad day at Black Rock for this poor fellow, but things turned out okay for him in the end. He went to a law enforcement center to check on his daughter who had been picked up, and to locate her vehicle. Detecting an odor of alcohol on his breath, an officer told him to not drive even though his speech was not slurred and his gait was normal. He said he was just walking and departed. The officer observed him looking up and down the street before getting in a vehicle and driving away. He told another officer he thought the driver might be intoxicated and to check on him, even though no bad driving was observed. An enforcement stop led to his arrest.

The Court held that the mere odor of alcohol and the “I’m walking" statement were not enough to constitute reasonable suspicion for the enforcement stop.

EDITOR’S NOTE: Oddly, the Court agreed with the trial court’s conclusion that “If [the reporting officer] had believed [the] defendant was intoxicated, he could have arrested him at the Law Enforcement Center. He did not." The oddity is that if the second officer lacked even reasonable suspicion to make a Terry stop, how would the first officer have had a legal basis to arrest him at the station, and for what (the offense of public intoxication involves a level of intoxication considerably higher than what’s required for driving under the influence)?

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 Posted on May 23, 2013 in DUI

No Fourth Amendment Detention Where Motorist Unaware Of It
Tate v. People
___ P.3d ___, 2012 WL 6685769 (Colo.), 2012 CO 75

A person is not “seized" within contemplation of the Fourth Amendment unless he is conscious of it. Thus, an officer did not detain a motorist by blocking his departure where the motorist was passed out.

“As Professor LaFave has observed, `If, as stated in Brendlin, for a person to be seized he must “perceive a show of authority as directed at him" it would seem to follow that if the person claiming to have been subjected to a Terry stop was not aware of that police conduct necessary to “a show of authority," then again there has been no seizure.’ 4 Wayne R. LaFave, Search and Seizure § 9.4, at 153 (4 ^th ed. Supp. 2011-2012)(quoting Brendlin, 551 U.S. at 262)."

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 Posted on May 16, 2013 in DUI

State v. Pexa
___ N.W.2d ___, 2012 WL 6652580 (Minn.App.) (Unpublished)

Defendant’s blood-alcohol level was.09 percent about 150 minutes after driving. Due to a discovery violation, the prosecution was precluded from having its expert opine as to his BAC at the time of driving based on retrograde extrapolation.

Declaring that a “specific numerical alcohol concentration is a scientific matter" beyond the “general knowledge of a lay jury," the Court concluded it is “impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time…without the aid of a qualified expert[,]" and the trial court should have therefore dismissed the.08 or higher charge when it made the discovery order.

Had the test result been higher and/or the time between driving and testing shorter, an inference might have been permitted without expert testimony.

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 Posted on May 09, 2013 in DUI

Community Care-Taking Exception
Alford v. State (2012) Unpublished Opinion Following Rehearing
Texas R. App. P. 47 (No. 05-10-009-CR)

In evaluating a “community care-taking" exception to the warrant requirement, the Texas courts consider four non-exclusive factors: (1) the nature and level of distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone or had access to assistance independent of the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

Here, defendant was merely observed “kind of turned sideways [with half her] body out [the car and] leaning over saying something to the driver." They were purportedly talking “kind of loud" but the officer said he could not tell if there was a disturbance. As the officer approached, the passenger switched places with the driver and began to drive away. The officer did not say he observed anything indicating distress. The vehicle was at a dead-end street next to an open Jack-in-the-Box restaurant. The defendant was with her sister and had access to the restaurant if she needed help. There was no indication she was in need of any help.

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 Posted on April 30, 2013 in DUI

City of Missoula v. Paffhausen
___P.3d ___, 2012 WL 5866259 (Mont.), 2012 MT 265

The State argued that involuntary intoxication (purportedly caused in this case by a rape date drug) is no defense on the basis that mental state is not an element of the DUI offense. However, the absence of consciousness excludes the possibility of a voluntary act and “automatism" caused by involuntary intoxication is a valid affirmative defense. To prevail on it, the defendant must present sufficient evidence to raise a reasonable doubt that he was involuntarily intoxicated and was acting in an unconscious state.

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 Posted on April 18, 2013 in DUI

BLOCKBUSTER DECISION REGARDING WARRANTLESS BLOOD DRAWS IN DUI CASES

The Supreme Court of the United States (SCOTUS) issued a seminal decision this morning in Missouri v. McNeely ___ U.S. ___ (2103) - Docket No. 11-1425

The case presented the following issue on appeal:

“Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream?"

To put this in layman’s terms, the Court ruled upon whether police must normally obtain a search warrant before compelling a person arrested on suspicion of driving under the influence to submit to a needle injection for blood evidence.

Here is what the Court declared:

“We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant."

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 Posted on April 09, 2013 in DUI

The Affirmative Defense of Involuntary Intoxication Causing Unconsciousness - Case Law By Board Certified DUI Lawyer Paul Burglin
People v. Mathson
___ Cal.Rptr.3d ___, 2012 WL 542716 (Cal.App. 3 Dist.)

An unanticipated reaction to medication, taken as prescribed, constitutes an “involuntary intoxication" defense in some jurisdictions. In California, a person who acts conscious is presumed conscious, but a defendant can overcome it by producing sufficient evidence to raise a reasonable doubt that he was unconscious when he acted during the commission of the alleged crime. People v. Hardy (1948) 33 Cal.2d 52. Involuntary intoxication that causes a state of unconsciousness is recognized. State v. Wilson (1967) 66 Cal.2d 749.

Suppose the individual knows, or should know based upon warning labels, medical advice, and/or past experience, that the use of Ambien might cause him to sleep-drive in an unconscious state. Does such knowledge negate an involuntary intoxication defense?

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 Posted on March 26, 2013 in DUI

Recent Judicial Decisions - Case Law By Board Certified DUI Lawyer Paul Burglin
Chambers v. State
___ S.W.3d ___, 2012 Ark. 407, 2012 WL 5360966 (Ark.)

In this.108 /.105 breath-alcohol test case, defendant objected to the admission into evidence of certificates certifying that the Datamaster was properly certified and calibrated, on the basis that they constituted testimonial hearsay in violation of Melendez-Diaz .

Finding the subject certifications were not created for the purpose of providing evidence against any particular defendant, the Court held they were non-testimonial (citing Commonwealth v. Zeininger , 459 Mass. 775, 947 N.E.2d 1060).

“We agree with the Court of Appeals of Oregon, which concluded that such records `bear a more attenuated relationship to conviction: They support one fact (the accuracy of the machine) that, in turn, supports another fact that can establish guilt (blood alcohol level).’ State v. Bergin , [231 Or.App. 36] at 41, 217 P.3d 1087. Indeed, it appears that the Supreme Court has already acknowledged this attenuation, stating in Melendez-Diaz , supra at 2532 n. 1: Contrary to the dissent’s suggestion…we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case…[D]ocuments prepared in the regular course of equipment maintenance may well qualify as nontestimonial records."

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 Posted on March 18, 2013 in DUI

Recent Judicial Decisions - Case Law By Board Certified DUI Attorney Paul Burglin
Jenkins v. State
___So.3d ___ (2012 WL 4711432 (Miss.)

Defendant was sentenced to life in prison for possessing less than two grams of cocaine. His conviction was affirmed even though the analyst who performed the test and identified the substance did not testify. She was on indefinite medical leave with stage-four cancer so her supervisor/technical reviewer testified instead.

The surrogate witness performed “procedural checks" by reviewing all of the data submitted and the conclusions contained in the analyst’s report. Based on this review, he reached his own conclusion that the substance was cocaine. The certified report was signed by both the analyst and the testifying supervisor.

The Court held that this satisfied the Confrontation Clause and was allowed by Bullcoming . The salient point was that the supervisor was actively involved in the report’s production and had intimate knowledge of the analyses even though he did not perform the test first hand.

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 Posted on March 10, 2013 in DUI

Recent DUI Judicial Decisions With Analysis By Board Certified DUI Attorney Paul Burglin

Calibration Records Held Admissible Over Confrontation Objections
People v. Lopez
55 Cal.4 ^th 569 (2012)

Seizing on Sotomayor’s concurring opinion in Bullcoming (“machine-generated" data may be admissible), the California Supreme Court held that a lab report was properly admitted even though the analyst did not testify. It was a six-page report that included the following:

‪Page 1 - Chain of custody log sheet (showing the results of nine blood samples the analyst tested on the same date, including defendant’s)

Page 2 - Printout of the GC machine’s calibrations on the day of the test

Pages 3 and 6 - Quality control runs before and after the samples were tested

Pages 4 and 5 - Two computer-generated numerical results (.0906 and.0908)

‪The majority opinion described pages 2-6 of the documents as machine-generated data measuring calibrations, quality control, and the blood-alcohol concentration. Though the analyst had initialed page 1 and signed page 2, there was no statement by him on any of the pages. The testifying criminalist said he was a colleague of the analyst and had trained him, was intimately familiar with his procedures in testing blood for alcohol, and that everyone in the lab was trained in the same manner. Based on his own training, he said he concurred with the results. Cf., Bullcoming (no underlying data or chromatograms were offered at trial in Bullcoming , and no independent opinion was offered by the surrogate witness).

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