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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").

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
Suppression of SFST’s
State v. Stricklin
2012 WL 1493830 (Ohio App. 6 Dist.), 2012-Ohio-1877 (April 27, 2012)

Defendant was stopped for an inoperable headlight. The officer testified that he had a “slight odor" of alcohol, bloodshot glassy eyes, and appeared “anxious" (though the latter claim was not in her police report). Defendant denied drinking, and he walked up to the headlight and gave it a bang that got it working. The officer then walked back to her patrol vehicle and determined that he had a prior DUI conviction four years earlier.

Given the de minimus reason for the traffic stop, coupled with the lack of any indicators of actual intoxication, there was not reasonable suspicion to warrant the administration of field sobriety tests.

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
State v. Falconer (2012)
2012 WL 1867159 (Ohio App. 5 Dist.) 2012-Ohio-2293

Ohio law requires defendants to file a pretrial motion to suppress if they wish to challenge the validity and admissibility of an alcohol test. Defendant filed such a motion based on a lack of information being provided about who drew the blood, whether it was done by an authorized person, and the manner of collection, handling, and storage.

Defendant’s motion included its citation of regulations concerning (a) the use of a non-volatile antiseptic on the puncture area; (b) the use of a sterile dry needle into a vacuum container that contains a solid anticoagulant; (c) the blood sample must be sealed in a manner such that tampering can be detected; (d) the container have a label with the suspect’s name, date and time of collection, name or initials of person collecting the sample; and name or initials of person sealing the sample; (e) the sample must be refrigerated when not in transit or under analysis; (f) and chain of custody; and (g) requirements for testing.

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State v. Monserrate-Jacobs
2012 - Fifth Dist. Court of Appeals – Florida – No. 5D12-944

Following a guilty verdict, the defense sought court authorization to interview a juror-nurse concerning her examination of a blood kit (and its expiration date) that was admitted into evidence without objection or limitation, and possible comments to other jurors about it (including two jurors who declined to examine it). None of the witnesses testified about the expiration date on the kit.

Held : The request was untimely since the defense failed to object to the jury viewing the kit and the manner in which it was viewed. Furthermore, the motion was insufficient because it failed to include specific allegations as to why the verdict may be subject to legal challenge. Florida Rule of Criminal Procedure 3.575 requires the moving party to state the reasons why he/she believes that verdict may be subject to legal challenge, and allegations that are “merely speculative, conclusory, or concern matters that inhere in the verdict itself" are insufficient.

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California DUI defense attorney Paul Burglin has just won a critical victory for persons convicted of drunk driving who are seeking early reinstatement of their driving privilege.  In a published decision issued today by the First District Court of Appeal in Matteo v. California State Department of Motor Vehicles, the Court agreed with all legal arguments advanced by Burglin and affirmed the trial court's grant of a petition for writ of mandamus for Burglin's client. 

If you are seeking to have your California driver's license reinstated following a drunk driving conviction in California, or otherwise need legal representation on a DUI related matter, contact Board Certified DUI defense attorney Paul Burglin today.


Following is the entire decision or you can access the PDF here

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State of Wisconsin v. Billips , Slip Copy, 2011 WL 4578555 (Wis.App.)

After arresting defendant for DWI and observing and seizing several open containers that were in plain view, a full search of defendant’s vehicle uncovered marijuana.

Rejecting the claim that the post-arrest vehicle search was unconstitutional per Arizona v. Gant (2009) 556 U.S. 332, the Court noted that Gant “expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found."

Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.)

Where a juror acknowledged a language problem in understanding deliberations, and the problem was evidenced on the record as required, the trial court did not abuse its discretion in removing the juror during deliberations.

The normal rule in MA following a juror discharge is that the jury is to be instructed “not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846.

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Posted on in DUI

Proximate Cause Of Injury Or Death - Evidence Of Other Driver’s Intoxication Deemed Relevant And Admissible

State of Minnesota v. Nelson , - N.W.2d - -, 2011 WL 5829025 (Minn.App.)

In a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the trial court abused its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption.

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Posted on in DUI

Stop Lawful Where Tipster Provides
Sufficient Details and Means To Identify Caller
U.S. v. Chavez , - F.3d - -, 2011 WL 4925884 (C.A.10 (N.M.))

Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity" (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.

"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop."

Tip Considered in Connection With Community Caretaking Doctrine

State v. Deccio , 136 Idaho 442, 34 P.3d 1125

A telephone tipster, claiming to be the defendant's wife's best friend, called the police and claimed that the defendant was drunk, suicidal and driving.

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Derr v. State of Maryland , - A.3d - -, 2011 WL 4483937 (Md.)

While the defense bar anxiously awaits the U.S. Supreme Court’s decision in Williams v. Illinois , this Maryland appellate court determined that the Confrontation Clause is indeed violated under the same circumstances presented in Williams (an expert witness introducing and relying upon a non-testifying expert’s DNA analysis as a basis for his own conclusion).

"[B]ecause of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although [a State rule of evidence] allows for an expert to base his or her opinion on inadmissible evidence, to the extent that [this rule] offends the Confrontation Clause, such testimony will not be admissible.

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People v. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.)

The prosecutor obtained Defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office, which included a declaration that defendant had been served with an order of license suspension/restriction by mail. 

On appeal from an Order excluding the certificate at trial, the prosecutor argued that the certificate of mailing is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

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Commonwealth v. Dyarman , - A.3d - -, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245

The court was asked to decide whether admission of the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause absent testimony from the individual who performed the accuracy checks.

Held : The calibration logs were admitted to establish the chain of custody and accuracy of the device; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Thus, the logs were not “testimonial" for purposes of the protections afforded by the Confrontation Clause.

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