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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.

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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)."

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 (Unpublished)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.

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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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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.

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:

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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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Recent Judicial Decisions - Case Law By Board Certified DUI Lawyer Paul Burglin
Chambers v. State
___ S.W.3d ___, 2012 Ark. 407, 2012 WL 5360966 (Ark.)

In this.108 /.105 breath-alcohol test case, defendant objected to the admission into evidence of certificates certifying that the Datamaster was properly certified and calibrated, on the basis that they constituted testimonial hearsay in violation of Melendez-Diaz .

Finding the subject certifications were not created for the purpose of providing evidence against any particular defendant, the Court held they were non-testimonial (citing Commonwealth v. Zeininger , 459 Mass. 775, 947 N.E.2d 1060).

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Recent Judicial Decisions - Case Law By Board Certified DUI Attorney Paul Burglin
Jenkins v. State
___So.3d ___ (2012 WL 4711432 (Miss.)

Defendant was sentenced to life in prison for possessing less than two grams of cocaine. His conviction was affirmed even though the analyst who performed the test and identified the substance did not testify. She was on indefinite medical leave with stage-four cancer so her supervisor/technical reviewer testified instead.

The surrogate witness performed “procedural checks" by reviewing all of the data submitted and the conclusions contained in the analyst’s report. Based on this review, he reached his own conclusion that the substance was cocaine. The certified report was signed by both the analyst and the testifying supervisor.

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Recent DUI Judicial Decisions With Analysis By Board Certified DUI Attorney Paul Burglin

Calibration Records Held Admissible Over Confrontation Objections
People v. Lopez
55 Cal.4 th 569 (2012)

Seizing on Sotomayor’s concurring opinion in Bullcoming (“machine-generated" data may be admissible), the California Supreme Court held that a lab report was properly admitted even though the analyst did not testify. It was a six-page report that included the following:

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Posted on in DUI

State v. Sorensen
___N.W.2d ___, 283 Neb. 932, 2012 WL 1889206 (Neb.) (May 25, 2012)

A nurse’s certificate that blood was drawn in a medically accepted manner, signed at the request of law enforcement in connection with Defendant’s DUI arrest, was “testimonial" within the meaning of the Confrontation Clause. It was in essence an “affidavit" and improperly admitted into evidence because the nurse was not subject to cross-examination.

Posted on in DUI

The following decision grants an IID-restricted license to a second offender who was on probation at the time for his first DUI conviction. The Petitioner's last name has been redacted to protect his privacy (we always protect client confidentiality). Until now, the DMV has been refusing to grant early IID-restricted licenses to said individuals. While this ruling only applies to the Petitioner, it may well cause the DMV to change its current policy. If not, feel free to contact Paul Burglin for legal assistance in getting your driving privilege restored.

http://www.marindui.com/iidrestrictedlicensemarin.pdf

Posted on in DUI

The Legality Of The Police Stop Is Held Relevant To The "Lawful
Arrest" Issue Presented In License Suspension Hearings
Wisconsin v. Anagnos (2012)
Wisconsin Supreme Court (No. 2010 AP19812)
___ N.W.2d ___ (2012 WL 2378548)

Wisconsin’s refusal hearing statute allows a licensee to contest whether he was lawfully arrested. As part of this challenge, he may properly contend that the arrest was unlawful because the traffic stop that preceded it was not justified by probable cause or reasonable suspicion.

This decision is good persuasive precedent for California lawyers handling DMV administrative per hearings.

Posted on in DUI

Blood Test Results May Be Excluded From Evidence

Though California law enforcement agencies have long engaged in the practice of demanding blood draws from DUI arrestees without a warrant - at times even forcibly taking the blood by strapping suspects in a chair or holding them down on the ground - that practice may soon be deemed unconstitutional.

Earlier this month, the United States Supreme Court heard oral arguments in the case of Missouri v. McNeely . The legal issue presented is “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?"

In layman terms, the question is whether such warrantless invasions of the body are allowed on the basis that alcohol, once absorbed and distributed in the body, begins to eliminate (i.e., “burn off").

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Posted on in DUI

Anderson v. State of Texas (May 16, 2012)
Court of Criminal Appeals of Texas – No. PD-1067-11

Appellant filed a petition for discretionary review, contending the Court of Appeals erred in holding the trial court did not abuse its discretion in refusing to allow defense counsel to question the jury panel about its understanding of the differences between proof “beyond a reasonable doubt" and the lesser burdens of proof applicable in civil cases.

Held : Although trial courts have broad discretion over the process of selecting a jury and the propriety of particular questions, it is an abuse of discretion for it to prohibit proper questions about proper inquiries such as the standard of proof applicable in a criminal trial. The matter was remanded to the Court of Appeals to determine whether the harmless error doctrine precluded reversal of the conviction.

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Posted on in DUI

Williams v. Illinois (June 18, 2012) (Docket 10-8505)

Prosecutors are precluded by the Confrontation Clause from introducing out-of-court “testimonial" statements without putting the declarants on the stand, Crawford v. Washington (2004), and this includes forensic reports certifying incriminating test results. Melendez-Diaz v. Massachusetts (2009). Furthermore, such reports may not be admitted into evidence via a testifying supervisor or other “surrogate" witness in lieu of having the actual author of the report testify. Bullcoming v. New Mexico (2001).

With these precedents, the high Court granted certiorari in Williams v. Illinois (June 18, 2012) (Docket 10-8505) to determine whether the Confrontation Clause also bars an expert witness from testifying about the results of testing performed by a non-testifying analyst where the actual report itself is never introduced. (If allowed, one can readily envision prosecutors in DUI cases having expert witnesses opine guilt of the accused with reference to an otherwise inadmissible alcohol or drug test report). The expert was a forensic analyst who opined that DNA from vaginal swabs of a rape victim matched the DNA obtained from the Defendant, based in part on a DNA profile performed by someone else at Cellmark.

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Exclusionary Rule Inapplicable
Miller v. Toler
___ S.E. ___, 2012 WL 2076514 (W.Va.) (June 6, 2012)

Citing sister-state decisions from Connecticut, Maine, and Utah, as well as federal court rulings, the West Virginia Supreme Court held the exclusionary rule does not apply in civil administrative hearings concerning the suspension or revocation of a driver’s license. The rationale is that (1) the purpose of the rule is to deter unlawful police conduct, and application of the rule to criminal proceedings provides a sufficient deterrence; and (2) The judicially created exclusionary rule is not a constitutional right of the accused.

Burglin commentary : California requires establishment of a lawful arrest as one of the issues in a license suspension/revocation hearing, and counsel may contend that an unlawful detention tainted the subsequent arrest and made it illegal.

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Blakely v. State
___Ga.App.___, ___S.E.2d ___ WL 2148158 (June 14, 2012)

This decision comes on the heels of the GA Supreme Court’s holding in Jones (see above), and vividly demonstrates the extent to which an officer can be permitted to “mind read" the intent behind a motorist’s driving maneuver as the basis for stopping him.

“[Officer] Bennett noticed the headlights of [Defendant’s] vehicle approaching the roadblock, at which point [Defendant] ‘immediately’ made a ‘kind of sudden turn’ into a driveway, backed out, and drove away from the checkpoint. Bennett testified that [Defendant] was ‘probably less than a quarter of a mile’ from the checkpoint when he turned around, and Bennett ‘could barely see to where [Defendant] pulled in the drive.’ Bennett explained that the road curved, ‘with a hill,’ between the driveway where [Defendant] turned around and the roadblock."

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Jones v. State (May 7, 2012)
___ Ga ___, ___ S.E.2d ___ (Docket No. S11G1054)

Jorgensen v. State (1993) 207 Ga.App. 545, 428 S.E.2d 440 held that normal driving, even if it incidentally evades a DUI checkpoint, does not justify a warrantless detention. Subsequent to Jorgensen , several published decisions from Georgia held that abnormal or unusual actions (albiet legal) which are taken by a motorist to seemingly avoid a DUI checkpoint may support a warrantless enforcement stop. See Terry v. State (2007) 283 Ga.App. 158, 159, 640 S.E.2d 724 and cites therein.

Citing Jorgensen , the Georgia Supreme Court reversed Appellant’s DUI conviction, declaring that “[w]ithout evidence of a specific driving violation or maneuver to support the officer’s belief that [the motorist] was trying to avoid the roadblock , … the trooper lacked reasonable suspicion to stop [the motorist]." (emphasis added)

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Posted on in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Search & Seizure
U.S. v. Hickman (2012)
U.S. District Court (Idaho) – Docket 4:11-CR-00223-BLW
2012 WL 1883479

After making an enforcement stop for tinted windows, the officer conducted a DUI investigation and determined that Defendant was not under the influence and told him he was free to go. However, before the defendant had time to leave the officer began interrogating him about whether he had drugs or cash in his car based on a faint odor of marijuana he claimed to have smelled on his driver’s license. The questioning involved suggestions that a narc dog could be summoned and ultimately two more deputies arrived on scene. The officer claimed that consent to search was ultimately given, whereupon an illegal shotgun was discovered in the vehicle.

Held : Although a strong odor of marijuana emanating from a vehicle may be grounds for a warrantless search, a faint odor on a license is not. Cf. United States v. Guzman-Padilla (9 th Cir. 2009) 573 F.3d 865, 886 n. 5. Moreover, consent to search is invalid where it is obtained during the course of an illegally prolonged detention. See Florida v. Royer (1983) 460 U.S. 500 (an investigative detention must “last no longer than is necessary to effectuate the purpose of the stop").

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