Posted on August 29, 2012 in DUI

Stop Lawful Where Tipster Provides
Sufficient Details and Means To Identify Caller
U.S. v. Chavez , - F.3d - -, 2011 WL 4925884 (C.A.10 (N.M.))

Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity" (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.

"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop."

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 Posted on August 15, 2012 in DUI

Tip Considered in Connection With Community Caretaking Doctrine

State v. Deccio , 136 Idaho 442, 34 P.3d 1125

A telephone tipster, claiming to be the defendant's wife's best friend, called the police and claimed that the defendant was drunk, suicidal and driving.

The Idaho Court stated that the same test used to deal with anonymous tips in the criminal context should be used in the community caretaking field, and held that the deputy’s enforcement stop of the matching vehicle was illegal where the officer did not observe any vehicle code violations or erratic driving.

“The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deccio’s wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deccio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deccio and what hearsay information she obtained from Deccio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deccio would not be home if officers were to check did not in itself make the tip more reliable."

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 Posted on August 03, 2012 in DUI

Derr v. State of Maryland , - A.3d - -, 2011 WL 4483937 (Md.)

While the defense bar anxiously awaits the U.S. Supreme Court’s decision in Williams v. Illinois , this Maryland appellate court determined that the Confrontation Clause is indeed violated under the same circumstances presented in Williams (an expert witness introducing and relying upon a non-testifying expert’s DNA analysis as a basis for his own conclusion).

"[B]ecause of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although [a State rule of evidence] allows for an expert to base his or her opinion on inadmissible evidence, to the extent that [this rule] offends the Confrontation Clause, such testimony will not be admissible.

“Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion."

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 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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