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DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - McLinden v. Commonwealth

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License Suspension Upheld Where Driver’s Refusal Based on Location of Blood Draw
McLinden v. Commonwealth, Dept. of Transportation, Bureau of Driver Licensing
Commonwealth Court of Pennsylvania

Unpublished; 2013 WL 5973940

Driver’s conditional consent to blood testing constituted a refusal where he insisted upon the blood draw being at a location other than a police trailer next to a DUI checkpoint that was staffed with a phlebotomist.

Officer’s Opinion That Defendant’s Ability to Drive Was Diminished by Alcohol Impairment Should Have Been Excluded on Basis It Expressed Ultimate Opinion of Guilt

Commonwealth v. Canty

___ N.E.2d ___, Mass., 2013 WL 5912050 (Mass.)

No SJC-11315

This case involves the limitation of lay witnesses (including police officers) concerning opinions about the ultimate question of guilt. Though they may testify as to a defendant’s apparent intoxication, they may not express an opinion as to whether the accused was operating under the influence.

“[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely…

“[W]e conclude that the judge erred in admitting Officer Bulman's opinion that the defendant's “ability to drive was diminished" by his consumption of alcohol. We also conclude that the judge did not err in admitting Officer Tarentino's opinion that the defendant was “probably impaired."

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