Posted on July 23, 2013 in DUI

Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the Salinas case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Salinas v. Texas

570 U.S. ___, 133 S.Ct. 928 (2013) – Docket No. 12-246

Berkemer v. McCarty , 468 U.S. 420 (1984) held that a motorist’s pre-arrest, pre-Miranda roadside statements are admissible at trial. Salinas v. Texas (Docket 12-246) just empowered prosecutors to introduce silence by DUI suspects in response to roadside questioning as evidence of guilt, unless the suspect expressly invokes the Fifth Amendment right to remain silent.

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 Posted on June 20, 2013 in DUI

Expired Tube and “Vigorous Shaking" Leads To Exclusion of BAC Result
Hunter v. State
___ A.3d ___, 2012 WL 5349395 (Del.Supr.)

Sometimes a leading question can backfire, and sometimes the best objection is the one you don’t make.

Q: Okay. So she shook it vigorously just to make sure everything was mixed up properly, right?

A: Yes.

On cross, the defense attorney had the witness read the manufacturer’s admonition on the collection kit, “Do not shake vigorously."

The prosecutor’s helpful witness also said the expired date on the tube did not affect the sample’s integrity, only to be asked on cross to read the admonition that states, “Do not use tubes after the expiration date."

This was an ugly-fact case with the suspected drunk driver seriously injuring an EMT with a vicious kick, and a forced blood draw that involved the use of a taser. Yet the Court reversed the DUI conviction for failure to properly exclude the blood test evidence as foundationally unreliable.

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 Posted on June 14, 2013 in DUI

Nurse Gets Arrested For Refusing Blood Draw Order
Depalis-Lachaud v. Noel
U.S. Court of Appeals (11 ^th Cir. 2013) – No. 12-12903 (Unpublished)

A deputy sheriff transported a suspected drunk driver to the hospital following an accident, and directed a registered nurse to draw blood for evidentiary purposes. The nurse declined to do so without at least talking to a superior or on-duty doctor, and was arrested by the deputy for allegedly violating Florida statutes 843.02 (resisting or obstructing an officer in the execution of any legal duty) and 843.06 (neglecting or refusing an officer in the execution of his office in a criminal case).

The nurse brought a 1983 civil rights action against the deputy sheriff, and in reversing an order for summary judgment against the deputy, the Court held that “a reasonable officer could believe that [the nurse] obstructed, resisted, or opposed [the deputy’s] efforts to obtain the blood sample in violation of [the foregoing statutes]. The Court also affirmed the trial court’s denial of the deputy’s motion for summary judgment, thus leaving him potentially liable.

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 Posted on June 03, 2013 in DUI

City of Hutchinson v. Davenport
30 Kan.App.2d 1097, 54 P.3d 532 (2002)

A bad day at Black Rock for this poor fellow, but things turned out okay for him in the end. He went to a law enforcement center to check on his daughter who had been picked up, and to locate her vehicle. Detecting an odor of alcohol on his breath, an officer told him to not drive even though his speech was not slurred and his gait was normal. He said he was just walking and departed. The officer observed him looking up and down the street before getting in a vehicle and driving away. He told another officer he thought the driver might be intoxicated and to check on him, even though no bad driving was observed. An enforcement stop led to his arrest.

The Court held that the mere odor of alcohol and the “I’m walking" statement were not enough to constitute reasonable suspicion for the enforcement stop.

EDITOR’S NOTE: Oddly, the Court agreed with the trial court’s conclusion that “If [the reporting officer] had believed [the] defendant was intoxicated, he could have arrested him at the Law Enforcement Center. He did not." The oddity is that if the second officer lacked even reasonable suspicion to make a Terry stop, how would the first officer have had a legal basis to arrest him at the station, and for what (the offense of public intoxication involves a level of intoxication considerably higher than what’s required for driving under the influence)?

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 Posted on May 23, 2013 in DUI

No Fourth Amendment Detention Where Motorist Unaware Of It
Tate v. People
___ P.3d ___, 2012 WL 6685769 (Colo.), 2012 CO 75

A person is not “seized" within contemplation of the Fourth Amendment unless he is conscious of it. Thus, an officer did not detain a motorist by blocking his departure where the motorist was passed out.

“As Professor LaFave has observed, `If, as stated in Brendlin, for a person to be seized he must “perceive a show of authority as directed at him" it would seem to follow that if the person claiming to have been subjected to a Terry stop was not aware of that police conduct necessary to “a show of authority," then again there has been no seizure.’ 4 Wayne R. LaFave, Search and Seizure § 9.4, at 153 (4 ^th ed. Supp. 2011-2012)(quoting Brendlin, 551 U.S. at 262)."

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 Posted on May 16, 2013 in DUI

State v. Pexa
___ N.W.2d ___, 2012 WL 6652580 (Minn.App.) (Unpublished)

Defendant’s blood-alcohol level was.09 percent about 150 minutes after driving. Due to a discovery violation, the prosecution was precluded from having its expert opine as to his BAC at the time of driving based on retrograde extrapolation.

Declaring that a “specific numerical alcohol concentration is a scientific matter" beyond the “general knowledge of a lay jury," the Court concluded it is “impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time…without the aid of a qualified expert[,]" and the trial court should have therefore dismissed the.08 or higher charge when it made the discovery order.

Had the test result been higher and/or the time between driving and testing shorter, an inference might have been permitted without expert testimony.

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 Posted on May 09, 2013 in DUI

Community Care-Taking Exception
Alford v. State (2012) Unpublished Opinion Following Rehearing
Texas R. App. P. 47 (No. 05-10-009-CR)

In evaluating a “community care-taking" exception to the warrant requirement, the Texas courts consider four non-exclusive factors: (1) the nature and level of distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone or had access to assistance independent of the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

Here, defendant was merely observed “kind of turned sideways [with half her] body out [the car and] leaning over saying something to the driver." They were purportedly talking “kind of loud" but the officer said he could not tell if there was a disturbance. As the officer approached, the passenger switched places with the driver and began to drive away. The officer did not say he observed anything indicating distress. The vehicle was at a dead-end street next to an open Jack-in-the-Box restaurant. The defendant was with her sister and had access to the restaurant if she needed help. There was no indication she was in need of any help.

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 Posted on April 30, 2013 in DUI

City of Missoula v. Paffhausen
___P.3d ___, 2012 WL 5866259 (Mont.), 2012 MT 265

The State argued that involuntary intoxication (purportedly caused in this case by a rape date drug) is no defense on the basis that mental state is not an element of the DUI offense. However, the absence of consciousness excludes the possibility of a voluntary act and “automatism" caused by involuntary intoxication is a valid affirmative defense. To prevail on it, the defendant must present sufficient evidence to raise a reasonable doubt that he was involuntarily intoxicated and was acting in an unconscious state.

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 Posted on April 18, 2013 in DUI

BLOCKBUSTER DECISION REGARDING WARRANTLESS BLOOD DRAWS IN DUI CASES

The Supreme Court of the United States (SCOTUS) issued a seminal decision this morning in Missouri v. McNeely ___ U.S. ___ (2103) - Docket No. 11-1425

The case presented the following issue on appeal:

“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?"

To put this in layman’s terms, the Court ruled upon whether police must normally obtain a search warrant before compelling a person arrested on suspicion of driving under the influence to submit to a needle injection for blood evidence.

Here is what the Court declared:

“We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant."

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 Posted on April 09, 2013 in DUI

The Affirmative Defense of Involuntary Intoxication Causing Unconsciousness - Case Law By Board Certified DUI Lawyer Paul Burglin
People v. Mathson
___ Cal.Rptr.3d ___, 2012 WL 542716 (Cal.App. 3 Dist.)

An unanticipated reaction to medication, taken as prescribed, constitutes an “involuntary intoxication" defense in some jurisdictions. In California, a person who acts conscious is presumed conscious, but a defendant can overcome it by producing sufficient evidence to raise a reasonable doubt that he was unconscious when he acted during the commission of the alleged crime. People v. Hardy (1948) 33 Cal.2d 52. Involuntary intoxication that causes a state of unconsciousness is recognized. State v. Wilson (1967) 66 Cal.2d 749.

Suppose the individual knows, or should know based upon warning labels, medical advice, and/or past experience, that the use of Ambien might cause him to sleep-drive in an unconscious state. Does such knowledge negate an involuntary intoxication defense?

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