Articles Posted in DUI Defense Strategies

Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

Apparently yesterday two judges in Montgomery County were imposing interlocks as a condition of probation in DUI first offense cases.  So major traffic dockets in Rockville 413 and 414 were not good places to be yesterday.

The Washington Post recently reported that State’s Attorney for Montgomery County, John McCarthy, has instructed his prosecutors in Montgomery County to request an interlock in most first offense DUI cases.
This is apparently a reaction to the compromise reached by the Legislature this past session where, despite me being vastly outnumbered at the House and Senate judiciary committees, Noah’s law was amended to require interlocks on convictions under § 21-902(a), and under § 21-902(b) or (c) where the defendant has refused a test, and test readings of .15 or higher, but not on tests of .08 or more and under .15 or on PBJs.  So the legislative intent was to not require first offenders who appear to be social drinkers to get the interlock.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado.  Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D.Janine Arvizu, NCDD Regent Joe St. LouisPatricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.

The science portion was followed by three days of lectures and breakouts on trial techniques  taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte.   The TLC website says:

Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.

Today the Supreme Court heard oral argument in the cases of Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).

Leonard R. Stamm, along with Donald Ramsell and Jeff Green, co-authored an amicus brief filed on behalf of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, in these three cases on February 11, 2016.

The issue in the case was whether a state may make it a crime to refuse a warrantless breath test, or put differently to exercise one’s constitutional right to require the state to comply with the Fourth Amendment.   Maryland has a sentencing enhancement of up to 60 days that may apply if a person is found by a judge or jury to have knowingly refused a test.  The National Park Service, which controls a number of roads in Maryland, including the Baltimore-Washington Parkway, has a regulation, 36 CFR § 4.23(c) that makes it a crime to refuse a breath test, with a maximum penalty of 6 months in jail and a $5,000 fine.  In both state and federal DUI cases, a suspect is told there is a possible jail sentence if he or she refuses to submit to a breath test.  As a result, every breath test in state and federal court in Maryland is subject to a motion to suppress alleging that giving that advice is coercive and in violation of the Fourth Amendment.

Every breath test in Maryland is subject to suppression.  Every administrative suspension based on a failed breath test should be thrown out.  The reason is – in Maryland there is a potential 60 day enhanced jail penalty for every driver arrested for DUI who refuses to take a breath test.  The question is – can the State put someone in jail for refusing to consent to a search of their body?  Can the State make it a crime, or a sentencing enhancement to refuse to consent to a warrantless search?  And if they cannot, can they comply with due process when they use the threat of jail to induce the person to consent to a breath test?  The answer to these three questions should be NO.

There is a conflict among courts on the issue of whether a State can criminalize refusal to submit to an alcohol test.  If it cannot, then any consent obtained by advising a suspect that refusal is a crime carrying a potential penalty of incarceration is coerced and involuntary as a matter of law.  In Maryland, the DR-15 advice used to obtain consent gives this questionable advice.

This is an important issue currently because on December 11, 2015, the Supreme Court granted certiorari in three cases that raised this issue: Birchfield v. North Dakota, 136 S.Ct. 614 (2015); Bernard v. Minnesota, 136 S.Ct. 615 (2015); and Beylund v. Levi, 136 S.Ct. 614 (2015).  These cases will be argued in the Supreme Court on April 20, 2016.

The Hawaii Supreme Court announced its decision today in State v. Won.  The court held that where a suspect in a DUI case is told that it is a crime to refuse to submit to an alcohol test, that consent to submit to the test is coerced and invalid because it is not voluntary.   The Fourth Amendment requires that searches be conducted pursuant to a search warrant or the government must rely on an exception to the warrant requirement.  In most DUI cases, the government relies on consent to justify warrantless breath and blood tests.  However, some jurisdictions have criminalized refusal to submit to a test, providing that refusal can result in a jail sentence.

The Hawaii court said:

Where arrest, conviction, and imprisonment are threatened if consent to search is not given, the threat infringes upon and oppresses the unfettered will and free choice of the person to whom it is made, whether by calculation or effect.30 See id. at 261-63, 925 P.2d at 829-31 (finding that a permissive response to a request to search the defendant resulted only from “inherently coercive” circumstances that were “calculated to overbear [the defendant’s] will”); Pauʻu, 72 Haw. at 508, 824 P.2d at 835 (same). Thus, the threat of the criminal sanction communicated by the Implied Consent Form for refusal to submit to a BAC test is inherently coercive.  [Footnotes omitted].

In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.

Today, the Supreme Court released its decision and opinion in Rodriguez v. United States. This was not just a defense win. It was a win for anyone who travels in a car and may be stopped by the police for a traffic violation. The six justices in the majority were Ginsburg (who wrote the opinion), Roberts, Scalia, Kagan, Sotomayor, and Breyer.

Rodriguez had been stopped for driving on the shoulder. After the officer had checked his license and registration, found no warrants, and wrote a warning and handed it to Rodriguez, he required Rodriguez to stay at the location for a dog sniff of his car. The dog signaled that the car had drugs and police recovered the drugs.

The problem was that the officer had no further basis to suspect Rodriguez had done anything wrong at the time he continued to detain Rodriguez for a dog sniff. The purpose of the traffic stop had been completed. The 8th Circuit Court of Appeals found that the extended detention was de minimus and not sufficient to require suppression of the evidence found.

The Supreme Court reversed. It said:

We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.

What this means is that police can investigate other crimes during the time that it would take to write a ticket, but cannot use a search for which the police do not have articulable reasonable suspicion to extend that time. They cannot dilly dally or delay writing the ticket in order to conduct an illegal search.
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1. Change “reasonable grounds” in § 16-205.1 to “probable cause”

The Fourth Amendment requires articulable reasonable suspicion to stop a vehicle, Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) and probable cause to effect an arrest. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). However, the Court of Appeals has made it clear that the Fourth Amendment does not apply in MVA hearings. Motor Vehicle Admin. v. Richards, 356 Md. 356, 739 A.2d 58 (1999).

The officer is not required to recite the basis for the stop on the sworn statement submitted to the MVA in support of a suspension. Motor Vehicle Admin. v. Lipella, 427 Md. 455, 48 A.3d 803 (2012). The driver may only prevail on the ground of a bad stop if the driver shows the officer acted in bad faith in effecting the stop. Id.; COMAR 11.11.02.10(H).

Transp. § 16-205.1 requires an officer to detain the driver and request a test if the officer has “reasonable grounds” to believe the driver is driving while impaired. In Motor Vehicle Admin. v. Shepard, 399 Md. 241, 923 A.2d 100 (2007) the Court of Appeals construed “reasonable grounds” to be the equivalent of articulable reasonable suspicion to believe the driver is impaired. Thus while the Fourth Amendment requires the officer to have probable cause before making an arrest, § 16-205.1 requires the officer to “detain,” i.e., effectively arrest the driver, with articulable reasonable suspicion. Thus the officer is given conflicting instructions, to not make and to make an arrest at the same time, if there is only articulable reasonable suspicion.

Cases after Shepard have considered various factual scenarios, each sustaining suspensions with less evidence than the previous case, lowering the evidence required to sustain a finding of “reasonable grounds” and weakening the protection against unreasonable detention encompassed within the Fourth Amendment. E.g., Motor Vehicle Admin. v. Shea, 415 Md. 1, 997 A.2d 768 (2010)(seatbelt stop, moderate odor, performed standardized field sobriety tests, but no results given); Motor Vehicle Admin. v. Sanner, 434 Md. 20, 73 A.3d 214 (2013)(strong odor of alcohol coupled with having been involved in an accident). The most recent case from the Court of Appeals on this issue, Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013), held that if the officer claims to detect a moderate odor of an alcohol beverage, reasonable grounds exist.

The holding in Spies is contrary to holdings from other states. For example, see Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight weaving across line, “normal” odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992) (summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla. App. 2000) (unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh. App. 1981) (speeding and odor of alcohol beverage); People v. Royball, 655 P.2d 410 (Colo. 1982) (odor of alcohol alone, accident without fault established); but see, State v. Gillenwater, 980 P.2d 318 (Wash. App. 1999) (fatal accident, driver not at fault, odor of alcoholic beverage on both motorist and deceased passenger, three opened beer cans).

The Ohio Court of Appeals, in State v. Taylor, 444 N.E.2d 481 (Ohio Ct. App. 1981) stated:

The mere odor of alcohol about a driver’s person, not even characterized by such customary adjectives as “pervasive” or “strong,” may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

Id. at 482.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Kan. App. 2002), the Kansas Court of Appeals held that the odor of an alcoholic beverage on the defendant’s breath, without any other evidence was insufficient to support the stop of the defendant’s vehicle. In that case the defendant drove to a local jail to secure bond for a friend who had been arrested. When he left a police officer, who detected the odor of an alcohol beverage on the defendant’s breath, advised him not to drive and the defendant agreed. Not long afterward, the same officer saw the defendant driving his vehicle and stopped him.

The court stated:

Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one’s breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.

Davenport, 54 P.3d at 535.

A chief danger of the lower standard and eased application of that standard is that a number of drivers who are not impaired will be stopped and detained, and as a result of reasons that may be consistent with innocence will refuse to submit to a breath test and will face license suspension and/or ignition interlock. In counsel’s experience, people refuse for a myriad of reasons, including, but not limited to, misunderstanding the advice of sanctions provided by the police or being improperly induced by the officer to refuse the test. This was recognized by the Maryland State Bar Association Criminal Pattern Jury Instruction Committee in the jury instruction for refusal which states:

MPJI-Cr 4:10.5
Driving Under the Influence of Alcohol and Driving While Impaired by Alcohol — Effect of Refusal to Submit to Blood or Breath Test

You have heard evidence that the defendant refused to submit to a test to determine [his] [her] [alcohol level] [the presence of drugs or a controlled dangerous substance]. You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In order to decide whether the defendant refused to submit to a test and what, if any, weight to give the refusal, you should consider all of the evidence in the case.

If § 16-205.1 were amended to replace the phrase “reasonable grounds” with “probable cause” in every location where it appears, the obligations imposed on police officers and protections available to drivers would be the same as is provided by the Fourth Amendment. Additionally, the danger that innocent drivers will be swept up in the broad drunk driving dragnet would be reduced.
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