Posted on July 20, 2012 in DUI

People v. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.)

The prosecutor obtained Defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office, which included a declaration that defendant had been served with an order of license suspension/restriction by mail. 

On appeal from an Order excluding the certificate at trial, the prosecutor argued that the certificate of mailing is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” [ Melendez–Diaz, 129 S.Ct at 2538–2539 (citations omitted).]

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 Posted on July 13, 2012 in DUI

Commonwealth v. Dyarman , - A.3d - -, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245

The court was asked to decide whether admission of the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause absent testimony from the individual who performed the accuracy checks.

Held : The calibration logs were admitted to establish the chain of custody and accuracy of the device; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Thus, the logs were not “testimonial" for purposes of the protections afforded by the Confrontation Clause.

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 Posted on July 06, 2012 in DUI

Not Triggered:

State of Ohio v. Rawnsley WL 5319863 (Ohio App. 2 Dist. 2011)

A drunk driving suspect was taken directly to a hospital by police instead of jail, and the officer testified the suspect was not under arrest when the implied consent admonition was read and a blood sample was drawn. Held: The blood test evidence was excluded on the basis of invalid consent and no exigent circumstance for not seeking warrant.

Other courts considering this issue have predominantly found a “de facto" arrest or exigent circumstance (alcohol burn off) justifying the warrantless taking of blood ( see, e.g., Buford v. State of Georgia , - S.E.2d - -, 2011 WL 5248199 (Ga.App.).

Not : The Rawnsley case is valuable on two points. First, the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so. Secondly, exigent circumstances do not automatically exist merely because blood alcohol dissipates over time (if there is time to seek a warrant and get a blood draw within three hours of the driving then there is no exigent circumstance).

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 Posted on June 29, 2012 in DUI

State of Utah v. Houston , ___ P.3d ___, 2011 WL 4865169 (Utah App.), 2011 UT App 350

A deputy made a traffic stop based on a statement from a fellow deputy that the driver had a revoked license until 2012, and that he had verified the same “a few days" earlier on a Driver’s License computer data system.

Notwithstanding the possibility of a glitch in the computer data system, or that the driver had just gotten the license reinstated, the Court affirmed the denial of a motion to suppress evidence. The deputy’s basis for reasonable suspicion included the collective knowledge imparted to him by the fellow deputy (the “collective knowledge" doctrine), and the “few days" gap did not eliminate his reasonable suspicion.

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 Posted on June 19, 2012 in DUI

State of Montana v. Cameron , - P.3d - -, 2011 WL 5353102 (Mont.), 2011 MT 276

Though driving on the centerline several times was not a violation of law per se , it did constitute sufficient grounds for an experienced DUI officer to stop a vehicle at night.

Note : if there is one common theme that can be drawn from the plethora of cases on the subject of stops, lane lines and weaving, it appears to be as follows: While a brief momentary crossing of a lane line may not be a violation of the improper lane usage law (when there is no danger to others on the roadway) and hence may not form a reasonable basis for a vehicle stop, continuous weaving (taken in conjunction with other facts such as time of day) can be a stand-alone basis to stop a vehicle as reasonable suspicion of impaired driving.

Hawaii v. Sereno , 125 Hawai'i 246, 257 P.3d 1223 (Table), 2011 WL 2464753 (Hawai'i App.)

Defendant's car was struck by another vehicle and crashed into a house. Though Defendant admitted drinking, the Court affirmed the trial court’s grant of a motion to suppress evidence. The trial court gave no weight to the accident (since fault by Defendant was not shown), and refused to infer a consciousness of guilt by Defendant’s refusal to perform field sobriety exercises.

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 Posted on June 05, 2012 in DUI

State of Kansas v. Peach , Slip Copy, 2011 WL 4440184 (Table) (Kan.App.)

The driver passed a police cruiser parked on the side of the road which may have had its headlights on or just the parking lights. When the driver did not dim his brights as he passed, the officer made a u-turn and detained him.

The detention was held unconstitutional because the subject statute only requires the dimming of bright lights when a motorist is approaching “an oncoming vehicle within 500 feet..." Since the police cruiser was parked on the side of the road it was stationary and not oncoming.

The Court also rejected a prosecutorial claim of “good faith," holding that a mistake of law cannot be the basis for the “good faith" exception to the warrant requirement.

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 Posted on May 22, 2012 in DUI

Adam Liptak is the Supreme Court correspondent for The New York Times.A version of this news analysis appeared in print on May 6, 2012, on page SR5 of the New York edition with the headline: Are Oral Arguments Worth Arguing About?

SUPREME COURT advocacy is not usually a spectator sport, so it may have surprised Solicitor General Donald B. Verrilli Jr. when the reviews of his defense of President Obama’s health care law started to roll in.

“Donald Verrilli makes the worst Supreme Court argument of all time,” a blogger at Mother Jones wrote. A month later, Mr. Verrilli was back at the court, now asking it to strike down parts of Arizona’s tough immigration law. The Drudge Report’s assessment: “Obama’s lawyer chokes again.”

It is true that Mr. Verrilli coughed and stumbled a bit at the beginning of the crucial second day of the health care argument, and it is possible to imagine crisper answers than some of the ones he gave. He may have suffered in comparison with Paul D. Clement, a dazzling advocate who faced off against him in both cases. And Mr. Verrilli may have been thrown off his game by hostile receptions that he did not anticipate.

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 Posted on May 11, 2012 in DUI

Following is an article I wrote recently for a guest op-ed column in the Marin Independent Journal. http://www.marinij.com/opinion/ci_20552333/marin-voice-helping-people-avoid-drunk-driving?source=rss

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Marin Voice: Helping people avoid drunk driving

ALLOW ME to share my perspective on how to reduce recidivist drunk driving. It's based on 27 years of representing individuals criminally charged with this offense, and 20-plus years of personal recovery.

It begins with criminal defense attorneys. We have a meaningful opportunity to address substance abuse with clients who have hit a bottom — been arrested, incarcerated and utterly humiliated.

We can provide guidance and direction when they are most receptive to hearing it, and may even condition our representation on their getting treatment. With prosecutors and judges working with us, treatment in lieu of jail may be offered as a powerful incentive for their getting help.

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 Posted on May 01, 2012 in DUI

San Francisco DUI Lawyer Paul Burglin offers this case example:
Expert Testimony Concerning Physiological Variability Affecting Breath Testing Improperly Excluded
People v. Vangelder (2011) ___Cal.App.4 ^th ___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

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 Posted on April 20, 2012 in DUI

State of Texas v. Christensen , Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas)

San Francisco DUI Lawyer Paul Burglin offers this case example: One may be charged in Colorado with DWAI (driving while ability impaired) or DUI. While the former is a less serious offense requiring a lesser showing of impairment, the element of impairment is defined much the same as what is required in Texas for a DUI conviction. Hence, a DWAI conviction in Colorado is considered a prior DUI in Texas.

Editor’s Note: The key to assessing whether Colorado’s DWAI may be properly considered a prior DUI/DWI in another state, is to compare the elements of proof required for a Colorado DWAI conviction with what is required for a DUI/DWI conviction in the other state. California, for example, has found it insufficient for use as a prior in the criminal court but acceptable for use in administrative suspension actions by the Dept. of Motor Vehicles. See McDonald v. Dept. of Motor Vehicles (2000) 77 Cal.App.4 ^th 677.

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