DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - State v. Berg

 Posted on March 07, 2014 in DUI

State v. Berg (2013)
District Court Tenth Judicial District
County of Anoka (Docket No. 02-CR-13-4444)

DUI suspects have a constitutional right to refuse consent to chemical testing absent a warrant or sufficient exigent circumstances, and the exercise of that right cannot be criminalized. See Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523, 540 (1967).

“If the exercise of a constitutional right is criminalized the rights afforded United States citizens loses all meaning. The officer, upon learning Defendant was invoking her right to refuse a search had the ability to request a warrant and force Defendant to submit to testing. The officer chose not to get a warrant. The state’s right to test Defendant was lost at that point. Therefore, this Court grants Defendant’s motion and will dismiss County [sic] I of the complaint."

EDITOR’S NOTE: This was a win by NCDD member Charles Ramsay at the trial court level.



 Admissibility of Declaration Against Penal Interest By Third Party Claiming To Be Driver

People v. Soto , ___ N.Y.S.2d ___, 2013 WL 6418291 (N.Y.A.D. 1 Dept.), 2013 N.Y. Slip Op. 08217

 ( Supreme Court, Appellate Division, First Department, New York)

A prosecution witness testified that he observed defendant driving and that he was the only person in the car. Defendant contended that he was a mere passenger. The defense sought to introduce an out-of-court statement made to a defense investigator by a 19–year–old woman indicating that she, and not defendant, was driving defendant's car at the time it collided with a parked car. She refused to testify at trial on Fifth Amendment grounds and the prosecution refused to grant her immunity. A separate defense witness testified that he observed a young lady driving the car.

Held : The statement was a declaration against penal interest and the trial court erred in keeping the statement out. The Court noted the four-prong test for admissibility of the statement under the “declaration against penal interest" exception:

(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds;

(2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest;

(3) the declarant must have competent knowledge of the underlying facts; and

(4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability"

As to the fourth prong, the Court noted that declarations which exculpate a defendant are subject to a more lenient standard, and will be found sufficient if they establish a reasonable possibility that the statement might be true. “Depriving a defendant of the opportunity to offer into evidence another person's admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense" [cite omitted].

Prolonged Detentions


 Heard v. State

Georgia Court of Appeals - A13A0853

Defendant stopped for expired registration tab. Once the basis of the detention was resolved, the officer commenced questioning the driver about whether he was transporting drugs. Though only about four minutes elapsed between the time of the stop and the ultimate search of defendant’s car, the Court found the detention to be impermissibly prolonged and suppressed the evidence of contraband found in the car.

State v. Peterson

Oregon Court of Appeals

___ P.3d ___, 2013 WL 5935366 (Or.App.)

When a police officer has all of the information necessary to complete a traffic infraction investigation but, instead of ending the encounter, launches an investigation into a matter unrelated to the infraction and for which there is no reasonable suspicion, the officer has unlawfully extended the stop. (As in the Heard case (above), the detention here was prolonged based on a hunch about drugs.)