Posted by Paul Burglin on Fri, Jun 14, 2013
Nurse Gets Arrested For Refusing Blood Draw Order
Depalis-Lachaud v. Noel
U.S. Court of Appeals (11th Cir. 2013) – No. 12-12903 (Unpublished)
A deputy sheriff transported a suspected drunk driver to the hospital following an accident, and directed a registered nurse to draw blood for evidentiary purposes. The nurse declined to do so without at least talking to a superior or on-duty doctor, and was arrested by the deputy for allegedly violating Florida statutes 843.02 (resisting or obstructing an officer in the execution of any legal duty) and 843.06 (neglecting or refusing an officer in the execution of his office in a criminal case).
The nurse brought a 1983 civil rights action against the deputy sheriff, and in reversing an order for summary judgment against the deputy, the Court held that “a reasonable officer could believe that [the nurse] obstructed, resisted, or opposed [the deputy’s] efforts to obtain the blood sample in violation of [the foregoing statutes]. The Court also affirmed the trial court’s denial of the deputy’s motion for summary judgment, thus leaving him potentially liable.
Editor’s Note: Police officers have “qualified immunity” in 1983 actions, which shields them from liability for false arrest claims if they are able to show the existence of either factual or arguable probable cause to arrest.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Mon, Jun 03, 2013
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)?
A different result might have occurred had the State argued (or the Court found) that the detention was objectively reasonable based on the defendant’s failure to follow the first officer’s order (“don’t drive”)!
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Thu, May 23, 2013
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 (4th ed. Supp. 2011-2012)(quoting Brendlin, 551 U.S. at 262).”
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Thu, May 16, 2013
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.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Thu, May 09, 2013
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.
Thus, all four factors went for the defendant and no “community care-taking” exception existed. The State’s contention on appeal of a “consensual encounter” was deemed waived since it was not preserved at the trial court level. The trial court erred in denying the motion to suppress evidence.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Tue, Apr 30, 2013
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.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Thu, Apr 18, 2013
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.”
Thus, blood-draws done without the arrestee’s express consent are presumptively unconstitutional absent a warrant. The presumption may be rebutted where it is demonstrated by the State that the totality of the circumstances reasonably necessitated drawing the blood before obtaining a warrant.
Justice Kennedy’s concurring opinion declared, in part, that: “….States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.
“As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.”
Only Justice Clarence Thomas dissented, declaring that the natural elimination of alcohol from the human body constitutes an exigent circumstance in all drunk driving cases.
There is certain to be a plethora of litigation arising out of this decision, particularly in those circumstances where blood-alcohol evidence is the only chemical test evidence.
As to whether California’s implied consent law trumps this seminal decision, the concurring opinion by Chief Justice Roberts makes clear that under implied consent statutes, a motorist may still get his license suspended for withdrawing consent and refusing to submit to chemical testing demanded without a warrant. However, the implied consent statute does not constitute an exception to the warrant requirement where the motorist withdraws his consent.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Tue, Apr 09, 2013
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?
Here, defendant sought a jury instruction stating that one can only be found guilty of DUI under such circumstances if he knew that his taking Ambien would actually cause him to drive (not that it just might). The trial court rejected this proposed instruction and the Court of Appeal affirmed.
“Essentially, defendant asserts that until a person actually has a sleep driving experience, intoxication resulting in sleep driving is involuntary. We equate this to a rule that would provide Ambien users one free sleep-driving episode before they could be held criminally culpable, even though they knew the drug has caused sleep driving by others. Defendant does not cite any authority in support of this proposition.”
After exhaustively analyzing the legal precedents on the defense of involuntary intoxication and unconsciousness, and brilliantly critiquing California’s pattern jury instructions on it, the Court recommends a baffling instruction that guts a legally recognized defense:
“Voluntary intoxication is not a defense to driving under the influence of drugs. If you conclude the defendant’s intoxication was voluntary, then the defendant’s unconsciousness resulting from that intoxication is not a defense to the crime. A person is voluntarily intoxicated if: (1) the person willingly and knowingly ingested a drug; (2) the drug was capable of producing an intoxicating effect and (3) the person knew or reasonably should have known that the drug could produce an intoxicating effect.”
NOTE: The last sentence of this recommended instruction is what’s problematic, because knowledge that a drug can produce an intoxicating effect is not necessarily knowledge that it will produce a specific intoxicating effect (e.g., one that may cause a person to sleep-drive).
Furthermore, what about the fellow who takes every reasonable precaution to avoid driving after taking Ambien, but crawls out of bed in an unconscious state and somehow finds the key to a car and sleep drives? Should he be held criminally liable under such circumstances? Perhaps a “mistake of fact” or “involuntary act” defense lies in this situation.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Tue, Mar 26, 2013
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."
“That the records are generalized and performed prospectively in primary aid of the administration of a regulatory program makes all the difference.”
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Mon, Mar 18, 2013
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.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"