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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 Posted on October 31, 2012 in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
Suppression of SFST’s
State v. Stricklin
2012 WL 1493830 (Ohio App. 6 Dist.), 2012-Ohio-1877 (April 27, 2012)

Defendant was stopped for an inoperable headlight. The officer testified that he had a “slight odor" of alcohol, bloodshot glassy eyes, and appeared “anxious" (though the latter claim was not in her police report). Defendant denied drinking, and he walked up to the headlight and gave it a bang that got it working. The officer then walked back to her patrol vehicle and determined that he had a prior DUI conviction four years earlier.

Given the de minimus reason for the traffic stop, coupled with the lack of any indicators of actual intoxication, there was not reasonable suspicion to warrant the administration of field sobriety tests.

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 Posted on October 24, 2012 in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
State v. Falconer (2012)
2012 WL 1867159 (Ohio App. 5 Dist.) 2012-Ohio-2293

Ohio law requires defendants to file a pretrial motion to suppress if they wish to challenge the validity and admissibility of an alcohol test. Defendant filed such a motion based on a lack of information being provided about who drew the blood, whether it was done by an authorized person, and the manner of collection, handling, and storage.

Defendant’s motion included its citation of regulations concerning (a) the use of a non-volatile antiseptic on the puncture area; (b) the use of a sterile dry needle into a vacuum container that contains a solid anticoagulant; (c) the blood sample must be sealed in a manner such that tampering can be detected; (d) the container have a label with the suspect’s name, date and time of collection, name or initials of person collecting the sample; and name or initials of person sealing the sample; (e) the sample must be refrigerated when not in transit or under analysis; (f) and chain of custody; and (g) requirements for testing.

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 Posted on October 04, 2012 in DUI

State v. Monserrate-Jacobs
2012 - Fifth Dist. Court of Appeals – Florida – No. 5D12-944

Following a guilty verdict, the defense sought court authorization to interview a juror-nurse concerning her examination of a blood kit (and its expiration date) that was admitted into evidence without objection or limitation, and possible comments to other jurors about it (including two jurors who declined to examine it). None of the witnesses testified about the expiration date on the kit.

Held : The request was untimely since the defense failed to object to the jury viewing the kit and the manner in which it was viewed. Furthermore, the motion was insufficient because it failed to include specific allegations as to why the verdict may be subject to legal challenge. Florida Rule of Criminal Procedure 3.575 requires the moving party to state the reasons why he/she believes that verdict may be subject to legal challenge, and allegations that are “merely speculative, conclusory, or concern matters that inhere in the verdict itself" are insufficient.

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 Posted on September 27, 2012 in DUI

California DUI defense attorney Paul Burglin has just won a critical victory for persons convicted of drunk driving who are seeking early reinstatement of their driving privilege.  In a published decision issued today by the First District Court of Appeal in Matteo v. California State Department of Motor Vehicles, the Court agreed with all legal arguments advanced by Burglin and affirmed the trial court's grant of a petition for writ of mandamus for Burglin's client. 

If you are seeking to have your California driver's license reinstated following a drunk driving conviction in California, or otherwise need legal representation on a DUI related matter, contact Board Certified DUI defense attorney Paul Burglin today.

Following is the entire decision or you can access the PDF here

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 Posted on September 21, 2012 in DUI

State of Wisconsin v. Billips , Slip Copy, 2011 WL 4578555 (Wis.App.)

After arresting defendant for DWI and observing and seizing several open containers that were in plain view, a full search of defendant’s vehicle uncovered marijuana.

Rejecting the claim that the post-arrest vehicle search was unconstitutional per Arizona v. Gant (2009) 556 U.S. 332, the Court noted that Gant “expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found."

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 Posted on September 14, 2012 in DUI

Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.)

Where a juror acknowledged a language problem in understanding deliberations, and the problem was evidenced on the record as required, the trial court did not abuse its discretion in removing the juror during deliberations.

The normal rule in MA following a juror discharge is that the jury is to be instructed “not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846.

Because the language problem was the obvious reason in this instance, it was permissible to dispense with requirement of advising the panel as to the reason for the discharge.

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 Posted on September 08, 2012 in DUI

Proximate Cause Of Injury Or Death - Evidence Of Other Driver’s Intoxication Deemed Relevant And Admissible

State of Minnesota v. Nelson , - N.W.2d - -, 2011 WL 5829025 (Minn.App.)

In a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the trial court abused its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption.

Furthermore, the jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver.

Note : Not all states use the 'substantial factor' phrase in their definition of proximate cause.

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