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."

Continue Reading ››

 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.

Continue Reading ››

 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).

Continue Reading ››

 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.

Continue Reading ››

 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

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.)

Continue Reading ››