Posted on February 21, 2013 in DUI

State v. Sorensen
___N.W.2d ___, 283 Neb. 932, 2012 WL 1889206 (Neb.) (May 25, 2012)

A nurse’s certificate that blood was drawn in a medically accepted manner, signed at the request of law enforcement in connection with Defendant’s DUI arrest, was “testimonial" within the meaning of the Confrontation Clause. It was in essence an “affidavit" and improperly admitted into evidence because the nurse was not subject to cross-examination.

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 Posted on February 06, 2013 in DUI

The following decision grants an IID-restricted license to a second offender who was on probation at the time for his first DUI conviction. The Petitioner's last name has been redacted to protect his privacy (we always protect client confidentiality). Until now, the DMV has been refusing to grant early IID-restricted licenses to said individuals. While this ruling only applies to the Petitioner, it may well cause the DMV to change its current policy. If not, feel free to contact Paul Burglin for legal assistance in getting your driving privilege restored.

http://www.marindui.com/iidrestrictedlicensemarin.pdf

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 Posted on January 31, 2013 in DUI

The Legality Of The Police Stop Is Held Relevant To The "Lawful
Arrest" Issue Presented In License Suspension Hearings
Wisconsin v. Anagnos (2012)
Wisconsin Supreme Court (No. 2010 AP19812)
___ N.W.2d ___ (2012 WL 2378548)

Wisconsin’s refusal hearing statute allows a licensee to contest whether he was lawfully arrested. As part of this challenge, he may properly contend that the arrest was unlawful because the traffic stop that preceded it was not justified by probable cause or reasonable suspicion.

This decision is good persuasive precedent for California lawyers handling DMV administrative per hearings.

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 Posted on January 23, 2013 in DUI

Blood Test Results May Be Excluded From Evidence

Though California law enforcement agencies have long engaged in the practice of demanding blood draws from DUI arrestees without a warrant - at times even forcibly taking the blood by strapping suspects in a chair or holding them down on the ground - that practice may soon be deemed unconstitutional.

Earlier this month, the United States Supreme Court heard oral arguments in the case of Missouri v. McNeely . The legal issue presented is “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?"

In layman terms, the question is whether such warrantless invasions of the body are allowed on the basis that alcohol, once absorbed and distributed in the body, begins to eliminate (i.e., “burn off").

The Supreme Court of Missouri held that law enforcement agencies may not do so where the opportunity exists for them to quickly apply for a warrant. Warrants may be obtained telephonically, so the delay is generally short if a magistrate is available and the police are not delayed by unusual circumstances.

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 Posted on January 03, 2013 in DUI

Anderson v. State of Texas (May 16, 2012)
Court of Criminal Appeals of Texas – No. PD-1067-11

Appellant filed a petition for discretionary review, contending the Court of Appeals erred in holding the trial court did not abuse its discretion in refusing to allow defense counsel to question the jury panel about its understanding of the differences between proof “beyond a reasonable doubt" and the lesser burdens of proof applicable in civil cases.

Held : Although trial courts have broad discretion over the process of selecting a jury and the propriety of particular questions, it is an abuse of discretion for it to prohibit proper questions about proper inquiries such as the standard of proof applicable in a criminal trial. The matter was remanded to the Court of Appeals to determine whether the harmless error doctrine precluded reversal of the conviction.

Burglin commentary : Since this appears to have been “constitutional error" (it having arguably violated the defendant’s right to trial under the Texas Constitution), the Court of Appeals must reverse the conviction unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or determination of punishment. Texas Rule of Appellate Procedure 44.2.

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 Posted on December 21, 2012 in DUI

Williams v. Illinois (June 18, 2012) (Docket 10-8505)

Prosecutors are precluded by the Confrontation Clause from introducing out-of-court “testimonial" statements without putting the declarants on the stand, Crawford v. Washington (2004), and this includes forensic reports certifying incriminating test results. Melendez-Diaz v. Massachusetts (2009). Furthermore, such reports may not be admitted into evidence via a testifying supervisor or other “surrogate" witness in lieu of having the actual author of the report testify. Bullcoming v. New Mexico (2001).

With these precedents, the high Court granted certiorari in Williams v. Illinois (June 18, 2012) (Docket 10-8505) to determine whether the Confrontation Clause also bars an expert witness from testifying about the results of testing performed by a non-testifying analyst where the actual report itself is never introduced. (If allowed, one can readily envision prosecutors in DUI cases having expert witnesses opine guilt of the accused with reference to an otherwise inadmissible alcohol or drug test report). The expert was a forensic analyst who opined that DNA from vaginal swabs of a rape victim matched the DNA obtained from the Defendant, based in part on a DNA profile performed by someone else at Cellmark.

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 Posted on December 12, 2012 in DUI

Exclusionary Rule Inapplicable
Miller v. Toler
___ S.E. ___, 2012 WL 2076514 (W.Va.) (June 6, 2012)

Citing sister-state decisions from Connecticut, Maine, and Utah, as well as federal court rulings, the West Virginia Supreme Court held the exclusionary rule does not apply in civil administrative hearings concerning the suspension or revocation of a driver’s license. The rationale is that (1) the purpose of the rule is to deter unlawful police conduct, and application of the rule to criminal proceedings provides a sufficient deterrence; and (2) The judicially created exclusionary rule is not a constitutional right of the accused.

Burglin commentary : California requires establishment of a lawful arrest as one of the issues in a license suspension/revocation hearing, and counsel may contend that an unlawful detention tainted the subsequent arrest and made it illegal.

Lawfulness of Arrest Is ContingentUpon Lawfulness of Initial Detention
Wisconsin v. Anagnos (June 26, 2012)
___ N.W.2d ___, 2012 WL 2378548 (Wis.)

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 Posted on December 01, 2012 in DUI

Blakely v. State
___Ga.App.___, ___S.E.2d ___ WL 2148158 (June 14, 2012)

This decision comes on the heels of the GA Supreme Court’s holding in Jones (see above), and vividly demonstrates the extent to which an officer can be permitted to “mind read" the intent behind a motorist’s driving maneuver as the basis for stopping him.

“[Officer] Bennett noticed the headlights of [Defendant’s] vehicle approaching the roadblock, at which point [Defendant] ‘immediately’ made a ‘kind of sudden turn’ into a driveway, backed out, and drove away from the checkpoint. Bennett testified that [Defendant] was ‘probably less than a quarter of a mile’ from the checkpoint when he turned around, and Bennett ‘could barely see to where [Defendant] pulled in the drive.’ Bennett explained that the road curved, ‘with a hill,’ between the driveway where [Defendant] turned around and the roadblock."

In essence, the Defendant’s legal, three-point turn almost a quarter of a mile before a checkpoint was sufficient to find reasonable suspicion for the warrantless enforcement stop. This was the ruling even though “Bennett [additionally] testified that department policy required him to stop anyone who “turned around while we have [a] road check." (emphasis added).

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 Posted on November 20, 2012 in DUI

Jones v. State (May 7, 2012)
___ Ga ___, ___ S.E.2d ___ (Docket No. S11G1054)

Jorgensen v. State (1993) 207 Ga.App. 545, 428 S.E.2d 440 held that normal driving, even if it incidentally evades a DUI checkpoint, does not justify a warrantless detention. Subsequent to Jorgensen , several published decisions from Georgia held that abnormal or unusual actions (albiet legal) which are taken by a motorist to seemingly avoid a DUI checkpoint may support a warrantless enforcement stop. See Terry v. State (2007) 283 Ga.App. 158, 159, 640 S.E.2d 724 and cites therein.

Citing Jorgensen , the Georgia Supreme Court reversed Appellant’s DUI conviction, declaring that “[w]ithout evidence of a specific driving violation or maneuver to support the officer’s belief that [the motorist] was trying to avoid the roadblock , … the trooper lacked reasonable suspicion to stop [the motorist]." (emphasis added)

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 Posted on November 09, 2012 in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Search & Seizure
U.S. v. Hickman (2012)
U.S. District Court (Idaho) – Docket 4:11-CR-00223-BLW
2012 WL 1883479

After making an enforcement stop for tinted windows, the officer conducted a DUI investigation and determined that Defendant was not under the influence and told him he was free to go. However, before the defendant had time to leave the officer began interrogating him about whether he had drugs or cash in his car based on a faint odor of marijuana he claimed to have smelled on his driver’s license. The questioning involved suggestions that a narc dog could be summoned and ultimately two more deputies arrived on scene. The officer claimed that consent to search was ultimately given, whereupon an illegal shotgun was discovered in the vehicle.

Held : Although a strong odor of marijuana emanating from a vehicle may be grounds for a warrantless search, a faint odor on a license is not. Cf. United States v. Guzman-Padilla (9 ^th Cir. 2009) 573 F.3d 865, 886 n. 5. Moreover, consent to search is invalid where it is obtained during the course of an illegally prolonged detention. See Florida v. Royer (1983) 460 U.S. 500 (an investigative detention must “last no longer than is necessary to effectuate the purpose of the stop").

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