First Offense DUI: All Evidence Suppressed!

This past week my client faced three days in jail and one year license suspension for a first offense DUI charge that occurred on Route 1 in Chester County, PA. My client was traveling on Route 1, observing the speed limit when two Pennsylvania State Troopers pulled him over. The two officers were traveling in the same cruiser. When they followed my client, they claimed that my his license plate lights were out and that gave them probable cause to stop his vehicle. In Pennsylvania, a police officer must have reasonable suspicion that a violation of the motor vehicle code is occurring to stop a vehicle. This is commonly referred to as probable cause. If a police officer pulls over a vehicle and does NOT have probable cause to stop that vehicle, all the evidence that follows the illegal stop must be suppressed. Suppressed means the evidence gets thrown out. Attorneys will typically challenge probable cause for the stop in what is known as a pre-trial suppression hearing. In order to have a suppression hearing the attorney must file a pre-trial motion to suppress the evidence within 30 days of arraignment.

In this particular case, my office knows that the Pennsylvania State Police use MVR’s or mobile vehicle recording systems. These tapes are typically referred to by my clients as dashcam videos. In a cruiser equipped with an MVR, when the police officer puts on his lights or sirens, the MVR starts recording and records 30 seconds (I believe) prior to activating the lights. In Delaware County and Chester County many local law enforcement agencies do not use MVRs. However, the state police do have their cruisers equipped with MVRs. Once we requested discovery, the prosecutor provided my office with a copy of the MVR. When I watched the video, I didn’t notice anything in particular. The cruisers light were reflecting off of my client’s license plate and I couldn’t tell if the license plate light was illuminated. However, when I replayed the video and paused it in a certain spot, you could see clear as day, two taillights and fully a fully illuminated license plate. At the hearing this week, we played the video for the judge at a suppression hearing in the Chester County Court of Common Pleas. Of course, the judge suppressed all evidence and my client walked without further penalty.  Now my client is eligible to get his arrest record expunged. After reviewing the video, the two state troopers took the witness stand under oath and stated that the license plate light was out. They tried to argue that the video was confusing and was not accurate. The prosecutor tried to argue this in closing argument.

Contact my office for a free consult if you or someone you love is charged with a DUI. My phone number is (610) 299-0295.

Continue Reading...

Illegal Evidence Inadmissible in Court…but OK for License Suspension Hearing?

I’ve posted often in the past about "The DUI Exception to the Constitution" and how constitutional rights in drunk driving cases have been steadily eroded over recent years.  See, for example, The DUI Exception to the Constitution and Who Cares About DUI Suspects?.  

One of the most extreme examples of this is the near absence of due process and constitutional rights in administrative license suspension hearings.  See DUI DMV Hearing: Where’s the Due Process?.     

To take one example, let’s take a  look at California’s system of "due process" in a DUI license suspension proceeding.  To begin with, the hearing is not presided over by a judge or even an "administrative law judge" — or even a lawyer.  Rather, it is presided over by a "hearing officer" who has no legal training, and possibly not even a college degree — and yet he will be making decisions on such things as admissibility of evidence without  any training in evidence or other legal matters.  Worse, this supposedly "impartial" hearing officer is an employee of the DMV — the very agency who is suspending the license (and wants to see the suspension upheld)!  

So who is the prosecutor in the DMV license suspension hearings?  Same Guy.  Yes, this uneducated employee of the DMV serves as both prosecutor and judge!  If the hearing officer offers evidence against the accused driver, and the driver makes a legal objection, this same hearing officer rules on that objection and decides whether his own offered evidence is admissible.  He will, of course, decide at the end of the proceeding whether his employer’s suspension against the driver is upheld or reversed.  You can imagine the inevitable outcome.

To take a recent example of this extreme denial of constitutional rights in a DUI case, reported in The Newspaper.com:

North Carolina Court Admits Illegally Obtained Evidence in License Case

Police may not violate constitutional rights to obtain a drunk driving conviction, but the Department of Motor Vehicles (DMV) can. The North Carolina Court of Appeals came to that conclusion last week in reinstating the driver’s license suspension of Myra Lynne Combs.

On January 6, 2013, Mount Airy Police Officer David Grubbs wrongly stopped Combs, who was behind the wheel of a blue SUV. An anonymous caller reported seeing a blue Ford Explorer weaving on Highway 52. Officer Grubs saw Combs, but her driving was just fine. She neither weaved nor committed any traffic violations. Officer Grubbs decided to stop her anyway once she had reached her destination….

Combs smelled of alcohol, and she was unable to pass the standard battery of field sobriety tests. Combs refused to undergo a breath test. Although she was arrested for driving under the influence of alcohol (DUI), the Surry County District Court tossed the criminal case because the officer violated the Constitution in stopping her illegally. The North Carolina Department of Motor Vehicles (DMV), however, was unwilling to let Combs off the hook. It revoked her driver’s license based solely on the illicitly obtained evidence. The DMV argued that the exclusionary rule does not apply to a civil proceeding. Combs argued that this was unfair. The trial judge told the DMV it could not base its action on illegal evidence, but the appellate court disagreed.

"Combs’s argument poses a fair question: how can law enforcement use evidence that was suppressed because of a Fourth Amendment violation to later revoke her driver’s license?" Court of Appeals Judge Richard Dietz asked. "The answer, according to several published decisions of this court, is that the exclusionary rule — a bedrock principle of criminal law — does not apply to license revocation proceedings."…

And so goes the slow death of the Constitution…

Thanks to Joe.

This entry was posted on Thursday, February 12th, 2015 at 2:31 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

Continue Reading...

Offering False Evidence is a Bad Idea

We all know that it is perjury to give false testimony under oath, a serious crime. What some people don’t realize is that it’s also a crime to present any fictitious evidence in a legal proceeding.

Stated in California Penal Code 132, the crime of offering false evidence makes it illegal to present any false written evidence - if your purpose is to deceive the court into believing it to be true.

In the DUI context, this might include someone submitting false receipts for alcohol - trying to make the court believe you drank less than you really did. Or it could include phony or doctored medical records suggesting you have a health condition that affected your ability to perform the field sobriety tests.

Violations of Penal Code 132 are felonies that can land someone in state prison for up to 3 years.

It’s a good idea to locate and muster up evidence to support your defense. But it’s never a good idea to offer up fictitious, forged or otherwise false evidence.

Continue Reading...

Court Finds Cop “Immune” for DUI Arrest Without Evidence

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  
 

This entry was posted on Friday, June 29th, 2012 at 9:39 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Continue Reading...

Why Do Police Always Destroy Breathalyzer Evidence?

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations.

What is the single most important piece of evidence in most drunk driving cases? The breathalyzer test. In fact, it’s the only evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that he administered the test correctly and that the test results were from the defendant.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.

Another example of “The DUI Exception to the Constitution”.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decision was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied.

This entry was posted on Monday, December 19th, 2011 at 10:00 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

View the original article here

Continue Reading...

Evidence in DUI Trials -- Fort Lauderdale DUI Lawyer

When a person is pulled over and the law enforcement officer conducts a DUI investigation, he or she is looking for one main thing: evidence that your normal faculties are impaired by a substance (alcohol or drugs). However, the police officer a couple of disadvantage in terms of accuracy in this investigation. The first is that law enforcement is unaware of what your particular normal faculties are. This means that if you have had a knee injury, for instance, doing a heel-to-toe walking pattern on the side of a highway may be difficult for you. Similarly, standing on one foot for a long period of time may cause you to sway for any number of medical reasons that do not reflect on your degree of intoxication or impairment, notes Fort Lauderdale DUI lawyer William Moore.

There are three ways the police try to collect proof against a driver suspected of operating a motor vehicle while intoxicated. The first is by inquiring about alcohol usage, or interrogation about the matter. An officer could ask, for instance, if you have been drinking and if so, how much. The second matter the officer will look at is your performance on roadside field sobriety tests, in which you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. As mentioned before, standing on one leg, possibly while counting, or walking heel-to-toe for a certain number of steps are common tasks. The officer will evaluate your performance on these tasks, although his or her perception is highly subjective, and may be colored by the fact that the officer already suspects the driver is intoxicated. Perhaps the most important test the law enforcement officer will ask you to submit to is a breath test to check for alcohol in your system, more commonly known as a breathalyzer. Although there is evidence suggesting these machines are not nearly as accurate as police or the machines’ manufacturers claim they are, the results are still admissible in a court of law. You may also be asked to submit to a blood or urine test, depending on the circumstances.

The less proof of intoxication exists, or what law enforcement believes is evidence, the less likely a driver is to be convicted at trial. “Triple refusals” can therefore be useful to your DUI defense lawyer, although refusal can have other consequences, including a longer period of driver’s license revocation. Always consult an experienced Broward DUI attorney before making these decisions.

In addition to these tests, the law enforcement official is also checking other signs of intoxication. Bloodshot eyes are an indicator they use, but one which is mimicked by other issues. Foremost among these is dry contacts, but even just being tired after a long day or allergies could cause red eyes.

This article should not be construed as legal advice in any way. Additionally, please note that because the operation of a motor vehicle constitutes implied consent to testing. Further, refusing a second or subsequent time can result in separate criminal charges.

View the original article here

Continue Reading...

Broward DUI Defense & Video Evidence

Video evidence is among the most important evidence the Assistant State Attorney can use against a DUI defendant, but it can frequently work in the defendant’s favor, depending on what the video shows. There are any number of possible scenarios in which a DUI video provides evidence useful to a defendant, according to experienced Fort Lauderdale DUI attorney William Moore.

In the case of a DUI suspect who performs the roadside field sobriety exercises, decent or good performance can work in his favor. This is true regardless of whether or not there is a breath test reading. For instance, if the driver suspected of DUI performs the roadside tests reasonably well, especially in light of the fact that they are unusual activities drivers are not accustomed to performing, the video is more helpful to the suspect and his DUI defense attorney. One interesting argument in this scenario is when the driver actually receives a very high breath test reading. These two things occasionally happen. If a driver blows a 0.32 breath test reading -- four times the “legal limit” at which intoxication is presumed -- yet still performs the exercises well, a reasonable jury may well understand that the breathalyzer may have been faulty or inaccurate.

If a video captures the time leading up to a traffic stop, the driving pattern may also be under scrutiny. If a person is pulled over on suspicion of driving under the influence, the police officer will need to be able to justify the traffic stop. Failure to maintain a single lane, just by itself, will probably not cause reasonable suspicion for a traffic stop if the driver is not affecting other traffic. However, weaving, drifting into another lane, failing to go at a green light, and very slow driving speeds may all trigger traffic stops.

Another possible scenario would be when a non-English speaking driver is pulled over by an officer who cannot communicate effectively with him. As a result, the driver may not understand the instructions for either the roadside field sobriety tests or the breath test machine. If a police officer fails to adequately (or correctly) explain the consequences of refusal, regardless of the language the officer and the driver are communicating in, that may also work in a DUI defendant’s favor. Likewise, a police officer or breathalyzer operator who is extremely rude or expresses a bias may not win favor with a jury hearing the DUI case.

View the original article here

Continue Reading...