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.

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

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.

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.

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.

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.

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:

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.

Not Triggered:

State of Ohio v. Rawnsley WL 5319863 (Ohio App. 2 Dist. 2011)

A drunk driving suspect was taken directly to a hospital by police instead of jail, and the officer testified the suspect was not under arrest when the implied consent admonition was read and a blood sample was drawn. Held: The blood test evidence was excluded on the basis of invalid consent and no exigent circumstance for not seeking warrant.

State of Utah v. Houston , ___ P.3d ___, 2011 WL 4865169 (Utah App.), 2011 UT App 350

A deputy made a traffic stop based on a statement from a fellow deputy that the driver had a revoked license until 2012, and that he had verified the same “a few days" earlier on a Driver’s License computer data system.

Notwithstanding the possibility of a glitch in the computer data system, or that the driver had just gotten the license reinstated, the Court affirmed the denial of a motion to suppress evidence. The deputy’s basis for reasonable suspicion included the collective knowledge imparted to him by the fellow deputy (the “collective knowledge" doctrine), and the “few days" gap did not eliminate his reasonable suspicion.

State of Montana v. Cameron , - P.3d - -, 2011 WL 5353102 (Mont.), 2011 MT 276

Though driving on the centerline several times was not a violation of law per se , it did constitute sufficient grounds for an experienced DUI officer to stop a vehicle at night.

Note : if there is one common theme that can be drawn from the plethora of cases on the subject of stops, lane lines and weaving, it appears to be as follows: While a brief momentary crossing of a lane line may not be a violation of the improper lane usage law (when there is no danger to others on the roadway) and hence may not form a reasonable basis for a vehicle stop, continuous weaving (taken in conjunction with other facts such as time of day) can be a stand-alone basis to stop a vehicle as reasonable suspicion of impaired driving.

State of Kansas v. Peach , Slip Copy, 2011 WL 4440184 (Table) (Kan.App.)

The driver passed a police cruiser parked on the side of the road which may have had its headlights on or just the parking lights. When the driver did not dim his brights as he passed, the officer made a u-turn and detained him.

The detention was held unconstitutional because the subject statute only requires the dimming of bright lights when a motorist is approaching “an oncoming vehicle within 500 feet..." Since the police cruiser was parked on the side of the road it was stationary and not oncoming.

Adam Liptak is the Supreme Court correspondent for The New York Times.A version of this news analysis appeared in print on May 6, 2012, on page SR5 of the New York edition with the headline: Are Oral Arguments Worth Arguing About?

SUPREME COURT advocacy is not usually a spectator sport, so it may have surprised Solicitor General Donald B. Verrilli Jr. when the reviews of his defense of President Obama’s health care law started to roll in.

“Donald Verrilli makes the worst Supreme Court argument of all time,” a blogger at Mother Jones wrote. A month later, Mr. Verrilli was back at the court, now asking it to strike down parts of Arizona’s tough immigration law. The Drudge Report’s assessment: “Obama’s lawyer chokes again.”

Following is an article I wrote recently for a guest op-ed column in the Marin Independent Journal. http://www.marinij.com/opinion/ci_20552333/marin-voice-helping-people-avoid-drunk-driving?source=rss

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Marin Voice: Helping people avoid drunk driving

ALLOW ME to share my perspective on how to reduce recidivist drunk driving. It's based on 27 years of representing individuals criminally charged with this offense, and 20-plus years of personal recovery.

San Francisco DUI Lawyer Paul Burglin offers this case example:
Expert Testimony Concerning Physiological Variability Affecting Breath Testing Improperly Excluded
People v. Vangelder (2011) ___Cal.App.4 ^th ___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

Held : The trial court prejudicially erred in refusing to allow scientific testimony to be presented that would have raised doubts about the reliability of the EC/IR and PAS breath testing devices, with respect to the physiological variables that can affect the sample of breath or air taken.

State of Texas v. Christensen , Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas)

San Francisco DUI Lawyer Paul Burglin offers this case example: One may be charged in Colorado with DWAI (driving while ability impaired) or DUI. While the former is a less serious offense requiring a lesser showing of impairment, the element of impairment is defined much the same as what is required in Texas for a DUI conviction. Hence, a DWAI conviction in Colorado is considered a prior DUI in Texas.

Editor’s Note: The key to assessing whether Colorado’s DWAI may be properly considered a prior DUI/DWI in another state, is to compare the elements of proof required for a Colorado DWAI conviction with what is required for a DUI/DWI conviction in the other state. California, for example, has found it insufficient for use as a prior in the criminal court but acceptable for use in administrative suspension actions by the Dept. of Motor Vehicles. See McDonald v. Dept. of Motor Vehicles (2000) 77 Cal.App.4 ^th 677.

Out-of State Alcohol-Related Reckless Driving Conviction Considered A “Prior" OWI (DUI) In Wisconsin

State of Wisconsin v. Malsbury , Slip Copy, 2011 WL 2201190 (Wis.App.)

Defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving.

Day v. Judge Bruce Haskell , - N.W.2d - -, 2011 WL 2505052 (N.D.), 2011 ND 125

After jury empaneled and sworn, Defendant, bailiff, and jurors engaged in conversation about pheasants while judge and lawyers were in chambers. Court quickly ruled that any such conversation automatically required mistrial, but the North Dakota Supreme Court held that a mistrial was not manifestly necessary and that a retrial was constitutionally barred by the Double Jeopardy clause.

A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius , 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor , 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion" required before making its decision.