Posted on July 11, 2014 in DUI

People v. Vangelder (2013)
___ Cal.4 ^th ___ (Calif. Supreme Court – Docket No. S195423)

Expert testimony that properly working and approved breath-alcohol instruments do not sample breath samples as they are designed to, and thus do not produce reliable results, is irrelevant and inadmissible on the per se charge. The exclusion extends to physiological variability such as body and breath temperature, hematocrit level, gender, and breathing patterns.

The Court characterized expert witness Michael Hlastala’s proffered testimony as a “regulation-based argument" that improperly seeks to trump legislative determinations concerning alcohol limits in deep lung breath. It specifically declined to address whether the limitation applies to the impairment count (it would appear not to).

EDITOR’S NOTE: The holding does not seem to bar challenges based on mouth alcohol or GERD since these are contamination arguments that have nothing to do with partition ratio variability.

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 Posted on July 01, 2014 in DUI

Partition Ratio Evidence Admissible To Defend Impairment Charge Even If Prosecution Only Introduces Breath-Alcohol Test Results To Prove The Per Se Offense
State v. Cooperman (2013)
Arizona Supreme Court – Docket No. CV–12–0319–PR

The Arizona Supreme Court holds that partition ratio variability evidence (either in the general population in the individual specifically) is relevant and admissible in prosecutions for driving while impaired even if the state elects to introduce breath test results only to prove the.08 or higher per se count. The decision cited and followed Supreme Court decisions from California and Vermont on this issue.

In affirming, the Arizona Supreme Court did not address an important aspect of the Court of Appeal’s decision below in State v. Cooperman (Ariz.Ct.App. 2012) 282 P.3d 446. The lower Court additionally held that physiological variability (e.g., breathing patterns, body and breath temperatures, hematocrit levels, gender, etc.) in the general population may be admitted to cast doubt on the reliability of breath-alcohol samples in defense against both the impairment and per se charges. The California Supreme Court noted this holding in Vangelder (see below) but declined to follow it on the per se count.

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 Posted on June 19, 2014 in DUI

Blood Draws At Jail Facility By Non-Physician/Non-Nurse Found Reasonable
People v. Cuevas
___ Cal.App.4 ^th ___ (2013) (California First District Court of Appeal, Div. 1 – Docket No. A138062)
2013 WL 3963601

The Court reviewed seven consolidated cases involving DUI arrests where the subjects opted for blood testing under California’s implied consent law and six were done at a jail facility. The blood draws were each performed by a trained phlebotomist or blood technician. Police officers testified to observing the blood draw site being cleaned and a needle being used from a sealed package. No evidence of pain or discomfort was presented, and in five of the cases there was testimony that the area was bandaged following the blood draw.

The Court rejected defense contentions that the blood draws failed to meet the constitutional standard of reasonableness because police officers arguably lacked the medical training necessary to testify whether the blood draws were performed in a medically approved manner and were done in a jail facility rather than a hospital.

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 Posted on June 10, 2014 in DUI

Symptoms of Intoxication and Manner of Driving Held Valid And Relevant Basis for Rejecting Rising Blood-Alcohol Defense in Administrative License Suspension Action
Coffey v. Shiomoto (Director, Calif. Dept. of Motor Vehicles)
___ Cal.Rptr.3d ___, 2013 WL 4196651 (Cal.App. 4 Dist.)

Non-chemical test circumstantial evidence was properly considered an administrative hearing officer to reject a defense expert’s opinion that driver was under.08 percent at the time of driving notwithstanding his post-driving chemical test results of.08 and.09 (Breath), followed by blood draw that later showed results of.095 and.096 percent.

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 Posted on May 21, 2014 in DUI

Always Poll The Jury Following A Guilty Verdict!
People v. Jones (2013) No. 1-11-3586 (Unpublished)
Appellate Court of Illinois, First District, Second Division.

It often seems like a waste of time and gratuitous torment, but this case demonstrates that polling a jury after a guilty verdict occasionally bears fruit.

A guilty verdict was announced by the foreperson following deliberations. The court told the jurors it was “going to ask each and every one of you whether or not that verdict was your verdict and if it's still your verdict." After polling four jurors, the following exchange occurred:

“THE COURT: Nicholas Mack, was that your verdict and is this now your verdict?

JUROR MACK: No, but yes and no.

THE COURT: Well, your answer can't be yes and no. Is that your verdict now?

JUROR MACK: Yes.

THE COURT: Okay. And was that your verdict when you signed the verdict paper?

JUROR MACK: No.

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 Posted on May 12, 2014 in DUI

Whether the police lawfully stopped you by reason of a reported complaint to the police about your manner of driving depends on what the United States Supreme Court refers to as “the totality of circumstances." Last month, the high court reviewed the trial court record of a vehicle enforcement stop in Berkeley, California, in a case called Navarette v. California .

In this particular case, the enforcement stop was deemed constitutional based on the following facts:

• Use of 911 system (suggestive that caller was not concerned about the report being traced back to him);

• Detailed description of driving which was consistent with the driving of an impaired motorist (i.e., it was more than just a conclusory statement that the suspect was a drunk driver - it specifically described a reckless manner of driving);

• Detailed description of car (the vehicle style and license plate number were provided)

• Description of location and direction of the vehicle was given;

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 Posted on April 28, 2014 in DUI

Participation in Florida’s Discovery Scheme Mandates Defense Disclosure of Independent Blood Analysis Even If Expert Not On Witness List

Kidder v. State , 117 So.3d 1166 (2013) (No. 2D12-3535)

Florida District Court of Appeal (2 ^nd District)

In Florida, a defendant’s election to participate in statutory discovery (which includes depositions) triggers a reciprocal requirement of disclosure. This includes the blood-alcohol report of a defense expert even if the defense does not intend to call him or her as witness. If the defense does not elect to participate, the only discovery that must be disclosed by the prosecution is Brady material (i.e., exculpatory discovery). In that circumstance, the prosecution does not have to send a blood split to a defense expert for independent analysis. Yet the Florida Court, while recognizing that this presents a Hobson’s Choice to the defense (have the blood sample retested, but disclose any incriminating result to the prosecution), finds no Fifth or Sixth Amendment problem with the mandatory disclosure and rejects the contention that it’s work product.

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 Posted on April 21, 2014 in DUI

Attorney Advertising Held Unethical (And Subject To State Bar Discipline) Where Competitor’s Name Used As A Keyword

2010 Formal Ethics Opinion 14 (NC April 27, 2012).

Opinion of North Carolina State Bar Ethics Committee rules that it is a violation of the Rules of Professional Conduct for a lawyer to select another lawyer's name as a keyword for use in an Internet search engine company's search-based advertising program.

Inquiry: Attorney A participates in an Internet search engine company's search-based advertising program. The program allows advertisers to select specific words or phrases that should trigger their advertisements. An advertiser does not purchase the exclusive rights to specific words or phrases. Specific words or phrases can be selected by any number of advertisers.

One of the keywords selected by Attorney A for use in the search-based advertising program was the name of Attorney B, a competing lawyer in Attorney A's town with a similar practice. Attorney A's keyword advertisement caused a link to his website to be displayed on the search engine's search results page any time an Internet user searched for the term "Attorney B" using the search engine. Attorney A's advertisement may appear to the side of or above the unpaid search results, in an area designated for "ads" or "sponsored links."

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 Posted on March 24, 2014 in DUI

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.

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 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.

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