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DUI Appeal of the Day - Attorney Advice Renders Illegal Search Admissible

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In Anderson v. State of Alaska, --- P.3d ----, 2011 WL 255164 (Alaska App.) the driver was involved in an accident on a snowy day, where he struck and killed a pedestrian. The police transported the defendant to the station, and erroneously informed him that he was required to submit to drug and alcohol testing simply due to the fact that he had been in an accident. The defendant sought and obtained a consultation with an attorney, who advised the defendant to submit. The trial court found that they had illegally detained Anderson when they transported him to the police substation. However the trial judge concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.



On appeal the appellate court agreed that the attorney's advice vitiated the illegality, and rendered the submission consensual:



The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls. There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent.



Interestingly, the court does not find that the attorney's advice to submit was patently incorrect:



The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him. Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident.



Perhaps because the court found that the defendants decision to submit might have been a calculated attempt towards exoneration, then the act of submission was considered voluntary. Perhaps if the defense attorney had admitted to his own erroneous understanding of the law, the result might have been different. At any rate, counsel should be extremely careful if they take a late-night call such as the above, to ensure that all possibilities are considered before advice is rendered.





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Citroën C3 Sonora

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Citroën C3 Sonora E mais uma série especial surge no país. Seguindo o estilo do Peugeot 207 Quiksilver, dessa vez é a Citroën que coloca em voga o combalido C3, na parceria com a loja online de músicas Sonora, e que oferece o mesmo carro de sempre, com motores 1.4 e 1.6 16v, mas com um pacote de benefícios que vai agradar a todo e qualquer internauta amante da música.

Por exemplo, os compradores têm direito a downloads gratuitos de até 250 músicas por mês do acervo completo da Sonora por um ano, além de o carro receber um sistema de som exclusivo, da Pioneer. A versão com o 1.4 (80/82 cv) recebe o aparelho com entrada auxiliar P2 e leitor de MP3, enquanto a 1.6 16v (110/113 cv, sempre com gasolina/álcool) traz Bluetooth, entrada USB e a tecnologia Hi-Fi Like, para melhorar a qualidade do som. As versões seguem o restante dos itens respectivos de GLX 1.4 e Exclusive 1.6 16v, e ambas trazem rodas de liga leve de série.

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DUI Appeal of the Day - Sentencing, Culpability, Lesser Includeds

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In Colon v. State of Florida, ---So.3d ----, 2011 WL 248549 (Fla.App. 5 Dist.) the defendant is convicted of multiple counts of leaving the scene of an accident involving death, vehicular homicide, and failure to report an accident. He maintained his innocence during trial and at sentencing. Based in part on his claim of innocence - that he wasn't the driver - the court sentenced him to the maximum of 30 years in prison.



On appeal, the court found that the convictions for leaving the scene and failing to report violated double jeopardy; the appellate court finding that they constituted the same offense (the failing to report being a lesser-included offense of leaving the scene).



Also, the court found that the trial court's reliance on the defendant's claim of innocence as a basis for the sentence was also constitutionally impermissible:



A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence, but “it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 20
04).





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Ford Focus Titanium

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Ford Focus Titanium Apresentado no último Salão do Automóvel, o Focus Titanium finalmente chega às lojas como hatch e sedã. Substituindo a antiga Ghia, ele vem custando R$ 70.595 para o hatch manual, R$ 75.275 para o hatch automático, e R$ 77.275 para o sedã, que só vem com o segundo tipo de câmbio, preços cerca de R$ 1600 maiores que os das versões Ghia, mas que também representam a adição de alguns equipamentos de série.

Os Focus Titanium trazem farois direcionais, rodas de liga leve exclusivas, porta-luvas refrigerado, retrovisor interno eletrocrômico e sistema de som multimídia My Connection, estes três últimos também incorporados à lista de série do GLX 2.0. De resto é o mesmo Focus de sempre, com uma qualidade de construção impecável e talvez a melhor dirigibilidade do segmento, ainda melhor com as novas caixa de câmbio e embreagem. Seu motor é sempre o 2.0 16v flex, com 143/148 cv.

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Hearsay Not Admissible to Establish PC at IC Hearings

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In South Carolina Department of Motor Vehicles v. Larson, --- S.E.2d ----, 2011 WL 204795 (S.C.) the issue was whether a non-testifying Sergeant’s observations of the driver could be admitted through the testimony of another officer at the implied consent hearing, even if it constituted hearsay. Recognizing that such hearsay was admissible for probable cause purposes at a preliminary hearing in the criminal case, the Supreme Court of South Carolina still said NO! The Court stated that by law, the IC hearing was governed by the ordinary rules of evidence, which bar hearsay. The court distinguished the important differences between a preliminary hearing, and a drivers license suspension hearing, and also distinguished the caselaw offered by the State in support of using hearsay at the implied consent hearing:



“We find these cases are inapplicable to a driver's license suspension hearing. A preliminary hearing, as its name suggests, is not a final adjudication of a defendant's rights. Instead, a preliminary hearing merely serves as a determination of whether there is sufficient evidence to subject a defendant to further criminal proceedings. See Rule 2, SCRCrimP (providing for preliminary hearings and stating in part that “Any defendant charged with a crime not triable by a magistrate shall be brought before a magistrate and shall be given notice of his right to a preliminary hearing solely to determine whether sufficient evidence exists to warrant the defendant's detention and trial”); State v. Ramsey, 381 S.C. 375, 376, 673 S.E.2d 428, 428-29 (2009) ( “The purpose of a preliminary examination is to determine whether probable cause exists to believe that the defendant committed the crime and to warrant the defendant's subsequent trial.”).



In contrast, a license-suspension hearing may potentially terminate an important interest of the licensee. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (“Once licenses are issued, ..., their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.”); Hipp v. S.C. Dep't of Motor Vehicles, 381 S.C. 323, 325, 673 S.E.2d 416, 417 (2009) (“A person's interest in his driver's license is property that a state may not take away without satisfying the requirements of due process.”).



Because a license-suspension hearing constitutes a final adjudication of an important interest, we believe the Legislature promulgated section 56-5-2951 in such a way that guards against an automatic or rote elimination of this interest. Specifically, this section sets forth several statutory prerequisites that must be established before a Hearing Officer suspends a citizen's driver's license following an arrest for DUI. In the instant case, a determination of whether McCarson was lawfully arrested or detained for DUI. By including this element in section 56-5-2951, the Legislature placed the burden on the Department to present sufficient evidence of probable cause.



Given the significant difference between a preliminary hearing and a license-suspension hearing, we decline to extend the probable cause cases relied on by the Department to circumvent the well-established rules against hearsay. Thus, in proving that a driver was lawfully arrested or detained for DUI, the Department must present admissible evidence of probable cause. If we were to find otherwise, we would essentially render meaningless the procedure established by our Legislature in section 56-5-2951.”



Many states have statutes that read “The hearing shall proceed in the same manner as in other civil proceedings” or language to that effect. Perhaps it is time for the defense bar to re-visit to your respective states’ forums for these suspension hearings, and ask that they too bar hearsay.





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DUI Appeal of the Day (DAD) - Defense Barred from Attacking Urine Alcohol Testing

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In State of Minnesota v. Dixon, Not Reported in N.W.2d, 2011 WL 68050 (Minn.App.), the defense attorney argued on appeal that the trial court erred in barring from presenting any evidence regarding or attacking the reliability of the urine testing method, including the barring of defense experts. The theory that the defense intended on presenting was, inter alia. That first-void urine alcohol testing is unreliable and inaccurate. The appellate court upheld that trial court decision, and barred such evidence in its entirety. It stated as follows:



“Minnesota courts have rejected challenges to the use of urine tests based on the “urine-pooling theory,” which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-39; Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999). In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. Hayes, 773 N.W.2d at 139. In Genung, this court stated that BCA urine-testing procedures “have been found to ensure reliability” and “do not require voiding once before producing the test sample.” 589 N.W.2d at 313. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, “it is insufficient as a matter of law to prove that the ‘testing method’ is not ‘valid and reliable’ “ under the implied-consent statute. Hayes, 773 N.W.2d at 138. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examine the state's BCA expert witness on that theory.”



This case represents the dangerous slope that courts have taken to beat down defense attacks on modern science. The mere fact that a court has reviewed a scientific theory under Daubert or Frye and it has been found acceptable for admissibility purposes, does not equate to proof that such method of testing is infallible. This ruling confounds those two principles (i.e. reliability and uncertainty) and improperly denies the defendant his right to a defense. Sad.





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Mini Countryman

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Mini Cooper CountrymanQuem diria que, depois de tanto tempo, o carrinho urbano desenhado pelo sir Alec Issognis iria criar sua própria família? Depois do S, Cabriolet e da perua Clubman, agora é a vez do SUV Countryman chegar ao país nas versões Pepper e S, com preços que começam em 107.700 reais.

Este é o maior dos Mini atuais, medindo 4,10 metros de comprimento frente aos 3,63 do pioneiro. Seu desenho não nega as origens, o modelo parece um Cooper anabolizado, que ganhou linhas em geral mais imponentes e até as portas traseiras, mas sem jamais perder o charme que o caracteriza. Sua cabine segue o estilo, com cores vivas nos revestimentos e um estranho console central que lembra o Mickey Mouse.

Seu pacote de equipamentos é bem extenso; a versão de topo S chega a ter ar-condicionado bizona, bancos de couro, sistema de som Harman-Kardon, freios com ABS e EBD, sistemas como o de frenagem em curvas e controle de estabilidade, e a tração nas quatro rodas ALL4, que trabalha monitorando a demanda para direcionar a tração na melhor proporção – se for necessário o sistema direciona tração total para um eixo só.

O motor é todo novo também, uma unidade BMW 1.6 com 122 cv na versão básica e 184 cv na S, graças à adição do turbo. Esta pode chegar a uma velocidade máxima de 208 km/h, e é comandada por um câmbio automático sequencial de seis marchas. Chamado de Steptronic, ele permite trocas pela alavanca ou por comandos no volante, para as trocas manuais. Resta saber qual será o próximo integrante desta crescente família.

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Chinese new yeardesktop backgrounds wallpapers 2011

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Honda Fit DX

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Honda Fit DX Desde seu lançamento, o Fit demonstrou que é o típico carro para quem não se interessa por carros; é o tipo de modelo que se preocupou tanto em ser bom em tudo que acaba não tendo nenhum aspecto sobressalente.

Exemplos disso são seu desenho, bonito em geral mas sem chamar a atenção, seu motor, que tem um consumo bom mas sem brilho algum no desempenho, e seus itens de série, pacotes generosos mas que só contêm o comum, além de cobrar um preço alto por isso.

E é justamente pelos altos preços das versões do Fit que a Honda agora lança a versão DX, que ao custar R$ 51.805 com câmbio manual (R$ 55.805 com o CVT), vira a nova versão de entrada da gama. Seu pacote de itens ainda é interessante; o modelo traz de série airbag duplo, vidros, travas e direção elétricos, e o sistema ULT de modular os bancos.

Os sinais de simplificação são poucos, como não trazer sistema de som de série, e as rodas aro 15’’ agora de aço, com calotas. O motor é o 1.4 i-VTEC das versões LX e LXL, de 100/101 cv, (gasolina/álcool).

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DUI Appeal of the Day (DAD) - Prior Refusals Do Not Qualify as a 'Prior' for DWIs

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This case comes to DAD's attention thanks to New Jersey member Steven Hernandez. In State of New Jersey v. Ciancaglini, --- A.3d ----, 2011 WL 148910 (N.J.), the defendant was sentenced as a third-timer, based upon a prior conviction for refusing a breath test. The Supreme Court of New Jersey unanimously held that a prior refusal was not a prior conviction for sentencing purposes. The case itself was based upon a statutory interpretation of the language in the DWI statute referring to prior 'violations'. In New Jersey, the DWI statute and the Refusal statute are separate and distinct from each other. Employing the "well-established principle that penal statutes must be strictly construed", the court found that the term 'violations' was too vague to include prior refusals, as opposed to prior DWIs only. Said the Court:



"Moreover, while the record was not fully developed as to whether defendant's 2006 refusal conviction was incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for DWI, even after an acquittal of DWI, it would have had to do so in clearer language."



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Audi A1

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Audi A1Apresentado ao país no Salão do Automóvel, o A1 finalmente aporta oficialmente por aqui, colocando até a Audi no segmento dos compactos de imagem. Antes se dizia que a inspiração eram os modelos antigos, como os pioneiros Fiat 500 ou Mini Cooper, mas depois o que passou a importar foi mesmo o charme, caso do smart fortwo, e do compacto vermelho destas fotos.

De qualquer ângulo que se olhe, não existe nenhum tipo de saudosismo. Muito pelo contrário, o A1 tem todas as qualidades dos Audi, como o desenho com a frente característica, mas sempre em miniatura. É o conceito seguido pelo seu motor também, um 1.4 de 122 cv com câmbio automatizado de sete marchas. Mas o salgado preço de R$ 89.900 oferece mais.

Seu interior é equipado com tudo. A cabine mistura o DNA Audi com os traços herdados da plataforma do VW Polo europeu, mas ainda assim exala requinte. Sua única versão traz ar-condicionado, freios com ABS e ESP, airbags, sistema de som multimídia e faróis bixenônio. Já entre os opcionais temos itens como teto solar, sistema Start/Stop, GPS e bancos de couro.

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Some thoughts about the growing US/China rivalry

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As President Hu Jintao visits USA this week, I have seen a wave of articles about China vs US. They often try to explore the following the following subjects:
1) Has China surpassed USA?
2) China's unfair trade policies and currency manipulation.
3) China may seem impressive on the outside, but the communist system is hiding a lot of brewing problems.
4) What should US do about the growing PLA?
5) Is a crash imminent in China?

I will start by looking at China's current economic situation and social stability. I think that will answer what US should do about the growing Chinese military and has China surpassed US. At the current time, there are often two extremes when people look at China. The first extreme is created by look at China's impressive new infrastructure, clean energy initiatives, trade surplus and foreign exchange reserves. When you just focus of these, it will be easy to think that China has surpassed US in certain areas (especially economical strength). In the sphere of military, one can be easily impressed with PLA with the news about J-20, DF-21D and aircraft carrier programs. The other extreme is created by looking at the some substandard exports (lead paint for example), cheap knockoff products, piracy and "communist" system. In the sphere of military, one can dismiss China when looking at hundreds of J-7 fighter jets, Jianghu frigates and T-59/69 tanks that still form large parts of PLA.

We've read for the past few years that China is not playing by the rules in its current trade relationship with US and that it is doing so by keeping its currency artificially low. I do agree that China is manipulating its currency right now, but I also don't know if it's really that undervalued. When China first fixed its currency to 8.28 against USD, it was doing so achieve currency stability at a time when all major Asian currencies were dropping in value against USD in the midst of a major economic crisis in 1997-1998. It kept its currency fixed against USD until 2006 to achieve this currency stability while USD was dropping like a rock. China has since then moved between semi-floating and fixing RMB. But is RMB really kept below it's value? If we go by the amount of credit that BOC has injected in the economy and the resulting inflation rate in the past 3 years, it would be hard to argue it is. If we compare pricing of comparable items like gas, non-processed food, household items and such, they are about the same price in China after the conversion. For luxury items like high end cars, brand name beauty products and high quality alcoholic beverages, they are actually more expensive in China even after conversion. In fact, RMB has been loosing so much purchasing power recently that people having started speculate on commodity prices by buying precious metals and copper. The argument has always been that if RMB goes up, Chinese people would have money to buy more stuff from the west and that the credit injection is caused by China's desire to keep RMB low. I think even the Chinese gov't cannot manipulate the market forces in the long run. If inflation goes up, then factory workers' wages will be forced to move up even more, which would eliminate currency fixing effects. On the other hand, Chinese workers would still be making significantly lower wages than American workers even after a 20 to 30% move up. In the industries where China is competing against other low cost nations, it is unlikely that increasing conversion rate would move those jobs back to America. In the most high tech industries, Chinese products would still be quite a bit cheaper than Western ones even after increasing conversion rate. Basically, as long as Chinese companies can reach the quality/safety standard for that product class, they will most likely be the cheapest even after a 20% to 30% move up for RMB. So I think even if China did loose its capital controls and let its currency float, the effect probably will not work out the way that the politicians think they would.

However, I do think there are measures that China can take which would help balance trade between the 2 countries. First of all, China would need to take intellectual property right more seriously in the software industry (primarily in terms of software piracy). This measure would not only help American companies like Microsoft, but also help China's aspiring domestic software firms. Secondly, US and China should work on a more stringent quality control framework for exports into America. This measure would prevent substandard product like toys with lead paint from coming into America and also improve the reputation of Chinese products. Thirdly, China needs to allow greater access for American companies bidding for hi-tech projects in China. Western countries have also had this problem with Japan and South Korea, where market access are not equal on the two sides of trade. There really is no reason that Western companies that have part of their production in China should not have equal access to those projects. Fourth, I think many of the complaints from GE and other hi-tech exporters would be soothed if a framework can be worked out to prevent local Chinese companies from blatantly copying designs and claim them as their own. Part of the framework should also prevent Chinese government from enforcing caps like 70% of wind power must be produced locally. Having such an accord would reduce trade tension and possibility of trade war, which would help nobody. Fifth, I think China should provide greater access of its domestic food market to American farmers. China has shielded its farmers from international competition due to its fear over domestic unrest from this group. However, such measures have only stoked a lot of inflation in food prices for ordinary Chinese citizens. So, allowing more competitively priced international farming produce in the country would reduce inflation and public outcry over rising food prices.

The topic of inflation and public outcry bring us to the question of whether or not crash is imminent in China. The topic of China sometimes refer to the potential problems in the Chinese economy, while other times refer to social problems facing China. They are some what related to each other. It's often been said that the Chinese government has made an implicit pact with Chinese people where they get to control government the way they would like as long as they can continue to deliver increased prosperity. In particular, Chinese government caters to the demands of big business, banks, the wealthy and the growing middle class. This broad group has gained the most from China's existing social system and would generally be the most opposed to changes in governance (become a democracy for example) that would create instability and give more voice to the rest of the population. To get an idea of the social problems that simmers under the surface in China, one would only have to go to the city hall of any municipality. You would see a bunch of policemen standing outside the city with no apparent task to do. They are there to stop demonstrations by people that lost out as part of China's move from socialism to capitalism. Back in the socialist days, city dwellers can keep their job regardless of how productive their enterprise may be and receive welfare for life. As part of the move to capitalism, a lot of state owned enterprises were allowed to collapse in the face of competition from far more efficient private companies in the late 90s. As part of this shift toward private enterprises, there was a huge migration of jobs from the less efficient central part of the country to the export driven coastal provinces. With less job around, some people were able to adjust to this new working environment, but a lot of people were forced into early retirement while others were laid off. So now, all of the local government have the headache of dealing with angry people from loosing their jobs, health care and cheap housing. In order to alleviate all of these angry and unemployed people, they launch infrastructure projects (many wasteful) and created a lot of low tax business zone to attract investment. Sometimes these things work out, while other times they are stuck with a lot of debts, but they always end up taking land away from some unfortunate souls. China gets over 50,000 protests every year for reasons like unfair compensation for seizure of land, job loss and environmental damage. Even among most of population whose living standards have really improved in the past 30 years, there are growing resentment toward the wealthy and the connected.

Another source of growing discontentment is the shifting dynamics of the young people. I have read many articles talking about labour shortage problems in China. I don't believe there is a labour shortage problem, but rather a shortage in cheap labour. A large portion of the young people coming into the work force nowadays are the only child of their family and carry the hopes of doing better than their parents. Unlike their parents' generation, they are not willing to sweat out low paying blue collar jobs after getting college degree. As a result, a large portion of new college graduates are having trouble finding jobs while sweatshops and factories are having to constantly raise salaries due to the decline in migrant workers. As we move forward, these factories would have to raise compensation and improve work condition to attract the college grad and keep the migrant workers from going home. We are already seeing this happening in the past couple of years in big companies like FoxConn and Toyota and also in most of the low cost export factories in Guangdong. At the same time, Chinese companies have been retiring people from work force in the early 40s due to the influx of cheap young labour. As the number of young labours entering work force decline, these factories would also be forced to retire the better compensated older workers at later age. These are all factors that I think will prevent labour shortage, but will also drive up the cost of labour. Such natural economic forces will increase the cost of Chinese products in ways that no forced currency revaluation could. They will also force China to move up the value chain and face off against higher valued export nations like Japan, South Korea, Germany and Singapore.

So in short, I do believe there are a lot of social problems simmering under the surface in China. With all these potential social problems, is China also facing huge economic problems? I think the answer is yes and no. On the negative side, there is a huge real estate bubble in big Chinese cities across the country as a result of huge expansion in credit in the past 2 years. In order to stave off a short term economic decline in 2008, China ended up inflating larger bubbles across the country. A lot of speculative money went into new building in Beijing, Shanghai, Shenzhen and Chongqing. Even less developed inland cities were affected, although to a smaller degree. It's often said that a large portion of new homes are bought but vacant, because the buyer is waiting for the housing prices to go up. The housing prices are at such high level now that ordinary families simply cannot afford to buy homes. This housing bubble is no different than the ones that already burst in Ireland, Spain and Portugal or the ones that are forming in Australia and Canada. Another problem that I see is the excessive infrastructure projects by local governments funded by banks' cheap lending. As an example of wasteful spending, my hometown in China has built a city wall and a moat to try to transform itself into an historical tourist city (I'm not kidding here). Since a large number of these infrastructure projects are wasteful, the Chinese banks, who are implicitly backed by the gov't, will have to absorb the losses. These problems are similar to what has already surfaced in Iceland and Ireland and about to surface I think that once the housing bubble burst and debts problems from infrastructure projects surface, it will cause for some hard times for the Chinese economy. Unlike the PIIGS countries in Europe, the fundamentals in the Chinese economy is still very good. Even if the real estate sector and infrastructure suffer a slowdown, they still have enough productive industries around the country to keep lower level of growth. At the same time, the Chinese private sector also have very high level of savings, which creates enough capital for small businesses and new start-ups. While the public debts situation will become a problem when the government has to bail out banks, they do have enough currency reserves to deal with these losses. Most importantly, China does not have the same level of unfunded liability of public sector workers that Western countries have to deal with. For example, the current unfunded liabilities in America is greater than the total asset values of everything that America owns. This situation is well reflected in the 2 countries' fiscal deficit. While the American federal gov't has hovered around 10% in the past 2 years and many state gov't are swimming in debts, Chinese deficit has been 2.8% and 1.6% in the past 2 years after budget surplus in 2008. So when we factor in the public and private sector saving/debts, I think China is one of the few major economies that can survive the sovereign debts crisis. It will experience some pain once the credit bubble burst as part of the boom/bust cycle, but it will get out of this global economic downturn better than most countries. After all, America became the largest and most wealthy nation despite going through many downturns in the past 2 centuries.

As a whole, I think the Chinese economy is not as rosy as some economists think. I share the prognosis of economist like Andy Xie, Marc Faber and Jim Roger, that China will go through some pain once the many bubbles in the country burst. At the same time, I also disagree with doomsday scenario of noted bears like Jim Chanos and the always anti-China Gordon Chang (who predicted that Chinese gov't would collapse by 2006). The Chinese economy will recover after some pain and some more protests. I think that although the current social tensions in China are bad, most people are thankful toward government for their improved quality of life and freedom. Most of the protests would be aimed at local governments rather than the central government, because people generally regard local governments to be far more corrupt and incompetent. As long as we do not see a complete economic collapse, we should see a stable central government that moves toward more openness and accountable. For an accurate depiction of the current Chinese social/political structure, I would recommend everyone to watch youtube clips of Orville Schell.

Building upon the past few paragraphs on China's current state, I can answer question 1) and 4). There are some areas that China has surpassed USA, but much more areas that it is still far behind USA. At the current time, China is in a lot of better financial position than America. As the largest creditor nation in the world, can go around the world bailing out bankrupt states, fund infrastructure projects and buy rights to natural resources. America on the other hand is the largest debtor nation and can only bail out other nations through secretive lending by Fed reserves. China still has a lot of poor people, so it will have a lot of room for growth and increasing productivity than America does. It also has a far more competitive manufacturing sector than America due to advantages such as lower wages, lower taxes, less regulations and lower financing cost. Despite being communist in name, China today has one of the world's most pro-business and capitalistic government. And finally, it is in a much better position in terms of public and private sector debts. China has huge private sector savings + low public sector debts, whereas America has huge private and public sector debts. And if state and federal government in America continue to try to pass on the debt problem by increasing taxes rather than fighting the powerful labour unions, the debt situation will simply get worse. So most of China's advantages are in the area of economy and finance, whereas USA is ahead pretty much in everything else. Despite the large number of engineers and scientists graduating from Chinese universities, they still lag far behind the high level education of top American universities. Simply put, China does not have any Harvard, Yale or Columbia. The top research labs in America are still the envy of the world. Along that line, America has an advantage in innovation due to more advanced research facilities and greater respect for IP. As a result of its advantages in innovation and research, America is likely going to stay ahead of China in technology for a while. America also is a more powerful voice around the world. Even though China has gained much influence and America has lot much respect in the past 10 years, most countries in the world still look at America for moral leadership. Most Western countries need China for its money and large market, but does not really have much respect for how the country is run. America has also been spreading its values to the world for the past century through film, music and other form of culture. Even though China has a much longer history, it is unlikely for China to ever spread its values the same way. When there are political problems and regional conflicts in different parts of the world, they look for America to come in as the mediator rather than China. And finally, America has a very large lead in its military prowess. Even though PLA has improved a lot in the past 10 years, it is still a generation or more behind America in most areas of military technology. I have read a lot of alarmist articles about J-20, Varyag and DF-21D recently, but they are nowhere near enough to tilt the balance of power in Pacific Ocean. In the best case scenario, China will have enough military prowess to deter America from entering a possibly costly Taiwan conflict in 10 years. China does not have the desire nor the ability to provide any kind of threat to America. Even if China builds 5 aircraft carriers, it would not be able to challenge US Navy in international waters. All of the political/economical objectives that China want to achieve can much easily be achieved through its financial prowess. So, when I read articles about how America needs to spend more on the military to deter a rising China, I'm often left to hang my head down and accept the higher taxes and inflation that I will be facing. USSR did not collapse because its military could no longer pose danger to USA. It collapsed because it was totally broke from spending too much money on its military and foreign adventure in Afghanistan. The British Empire did not loose its dominant place in the world because of the decline in its military. It lost its place in the world to US, because US had much stronger manufacturing and financial strength. So if US wants to maintain its leadership in the world, it needs to get its financial situation in order.

In conclusion, Hu Jintao's visit to America provides a good test for us to think about how the relationship between the 2 countries can develop and be beneficial to both side. I think that it is too simple to blame all of America's problems on China's currency. As I mentioned, China can make some other changes that will be far more helpful in balancing the trades between the two countries. In the long run, America will continue to be on the wrong side of the trade unless it can address its financial issues by having less tax burdens on everyone and save more money. China also has a lot of social and financial problems to address, but it will continue to grow in influence as its economy continues to grow. As a Chinese Canadian living in New York, I hope that people in both countries can realize the challenges facing both countries and learn to grow together in this increasingly interconnected world economy. Like? Some thoughts about the growing US/China rivalry for wallpaper? Shar this image to Some thoughts about the growing US/China rivalry for your friend.

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DUI Appeal of the Day (DAD) - Coming down from drugs, indictment variances

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In United States v. Gonzales, Slip Copy, 2010 WL 5392644 (D.Ariz.), the driver was charged with DWI after admitting that she passed out or fell asleep at the wheel, having used cocaine and amphetamine/methamphetamine the night before the crash. Gonzales sought to preclude testimony from government expert witness Terrence O'Hara (“O'Hara”). O'Hara is expected to testify regarding the signs and symptoms of impairment by cocaine and methamphetamine, regarding the toxicological effects of those two drugs, that a person will come down from the use of the drugs and may pass out or fall asleep, regarding the depressant effects of the drugs on the human body, and that the behavior and driving behavior of Gonzales was consistent with someone under the influence of the substances. Gonzales asserted that O'Hara was not an expert on the topics he proposes to testify about, that O'Hara did not conduct an evaluation of Gonzales at or near the time of the Defendant's driving, and that O'Hara's testimony is irrelevant to the charges. Gonzales argued that a drug recognition expert (“DRE”) is generally dispatched to the scene of a traffic stop, at the request of another officer who is investigating a DUI, where the DRE examines the suspect for certain characteristics. The DRE will then make a determination of whether there is probable cause to arrest based on the suspected used of drugs; a suspect is then ordered to submit to a chemical test or tests which would conclusively establish the presence or drugs in the person's system. Gonzales pointed out that she was not arrested, nor did police conduct a field investigation relating to impairment. In other words, no one made an assessment of Gonzales' physical characteristics to determine if she was under the influence of alcohol or drugs at the time of driving. The defendant argued that, although O'Hara was a certified DRE, the failure to perform a DRE evaluation rendered any opinion that O'Hara may give susceptible to exclusion under Daubert. Additionally:



Gonzales argues that the experts have stated unequivocally that one cannot conclude that, because drugs or metabolites are found in an individual's system, that the individual still had some amount of drugs in her system, or that the individual was “coming down” from the drugs, or even when the individual had ingested the drugs and that there are too many variables involved to conclude with any degree of medical accuracy whether the individual was under the influence of drugs, based on the presence of drugs in their urine. This, however, is an issue to be presented and argued to a jury rather than precluding the witness; i.e., this argument goes to the weight of the evidence rather than its admissibility.





The trial court denied the defendant's attempt to bar the expert pre-trial, and instead found the issue went to weight rather than admissibility. Additionally, the defendant sought to dismiss Count 1 on the basis that the government was going to prove a different theory of guilt than that for which she was indicted:



Gonzales argues that the original indictment charged her with committing aggravated assault because she was intoxicated and under the influence of drugs (not that she was tired), thereby causing an accident which resulted in serious physical injury to the child. Gonzales argues that the government constructively amended its theory of the case, claiming that at the time of the accident, Gonzales had come down from the effect of the drugs she had previously ingested, as a result of which she became sleepy.



The law on constructive amendment states that, after an indictment has been returned, its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (court cannot permit a defendant to be tried on charges that are not made in the indictment against him). A constructive amendment occurs when the terms of the indictment are effectively modified by the presentation of evidence or by actions of the court so that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment. United States v. Thomas, 274 F.3d 655, 669 (2nd Cir.2001). Further, an unconstitutional amendment of the indictment occurs when the charging terms are altered either literally or constructively, such as where the evidence offered at trial proves facts materially different from those alleged in the indictment. See e.g. United States v. Helmsley, 241 F.2d 71 (2nd Cir.1991); United States v.. Zingalo, 858 F.2d 94 (2nd Cir.1988). When a prejudicial variance, i.e., when the charging terms of the indictment are not changed but evidence offered at trial proves facts materially different from those alleged in the indictment, United States v. Frank, 156 F.3d 332 (2nd Cir.1998), dismissal is appropriate.



In denying the motion to dismiss, the appeals court reviewed the grand jury transcript, and found that Count 1 of the indictment, alleging an assault "while under the influence" did not limit government proof to the traditional element of a state-law-DWI; rather, it allowed for proof of an assault by any consequence of DWI, including the possibility of "coming down". Therefore the motion to dismiss was denied.



The case itself is interesting, as the theory of "coming down" from drugs is unique. However, from a defense standpoint, the two motions presented by the defense are valuable - if a DRE tries to opine without performing a DRE evaluation, is this evidence subject to a Daubert hearing? Secondly, if the government's theory of guilt changes post-indictment, can it be barred/dismissed under due process? I have filed motions in limine in the past, where the defendant is arrested while passed out in a car, but at trial the government argues to the jury to find the defendant guilty because he likely drove while under the influence to get there. This motion has prevailed on several occasions to prevent such an argument.





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J-20 had its first flight, what now?

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This past week, all of the Chinese forums and aviation forums online were left buzzing with pictures and videos of the first flight of J-20. At the same time, news of Hu Jintao being surprised by Gates asking him about the first flight of J-20 were also circulated around the web. Either way, the recent news of J-20's appearance has caused a lot of headlines around the world. The question is what now? What does this mean for the Chinese aviation industry and PLAAF?

When we read the news online reporting J-20, we see a lot of different opinion. There are some that are immediately dismissive toward the plane, toward China's ability to field a 5th generation fighter jet and to weed of reliance on Russian support. I find much of these articles to be extremely misinformed on the current situation in PLAAF and Chinese aviation industry. For example, one common misconception is that China is still relying on AL-31F on J-10 and J-11 at the moment. While it is true J-10s are still using AL-31FN, it is also quite evident that J-11Bs are entering service in two different regiments (one in PLAAF and one in PLANAF) with FWS-10 as the power plant. I will get back to the issue of engine later. At the same time, there are also a lot of excited PLAAF fans online who are looking at this as the F-22 competitor and the F-35 killer. Some are even wondering about the need to continue produce more J-10 variants with the apparent arrival of J-20. While it is easy for a PLA follower like myself to get excited about J-20, it is also apparent that China has a long way to go.

I have always said that I expected the 5th generation fighter jet to first achieve operational status around 2018 (meaning having at least one full regiment converted to this plane and completed basic training on it). At this point, I still expect it to be so if everything works out. The first and the biggest question is engine. I was extremely surprised to find out a particular upgraded variant of WS-10 was used for the first flight instead of AL-31F. I believe that J-11BS's first prototype was also using WS-10, but did not think it had enough thrust for J-20. I think that J-20 made its first takeoff without the need to turn on its afterburners and took off at much shorter distance than J-10S. I don't think a fighter jet with two severely underpowered engines would be able to do that, so its engines should have more power than that of standard WS-10. Right now, there are basically two plausible theories right now regarding to the engines:

1) They are a specially modified version of WS-10G (an upgraded variant of WS-10) that generates comparable thrust to 117S. This variant has been in development for a while and has already finished long endurance testing. However, due to the continued struggle of Shenyang Liming (factory 606) in mass production of the basic variant of WS-10, this variant also could not move forward in its deployment. Due to the immaturity of the design, it would have much shorter service life and MTBO than more mature engines like AL-31F or even WS-10.
2) They are a specially modified version of WS-10's basic variant. These two engines are carefully prepared with more advanced materials and are switched to operate at higher thrust level than a normal production copy. Again, the MTBO time of these engines are much shorter than the normal WS-10s, because they have to handle the wear and tear of continuously generating more thrust.

Of the two, I think the first one is more likely. What does this say about WS-10? I think that while there are problems with the design, it can be successfully deployed in service if it is produced and maintained properly. PLA would not allow one of their biggest projects to make first flight with an engine that they have no faith in. I guess that is the main problem. Shenyang Liming has become the joke of Chinese aviation industry with its recent failures. After several years of fanfare, the WP-14 (Kunlun) project was recently abandoned. I would think much of that is due to Liming's problems with project management and quality control. At the same time, WS-10 and J-11B program have been delayed by at least 2 years due to continued troubles with the quality of WS-10 produced by Liming. WS-10 has only recently been fielded on J-11B after a lot of changes. You can only discover all the little problems with an engine after it has been installed on many aircraft and flown many hours. And I hope in the coming couple of years, Shenyang AeroEngine Research Institute (SAERI, not to be mistaken with Shenyang Liming) will be able to really increase the reliability of the design and use that in its other projects like QC-280, WS-10G and WS-10-118. However, even a really well designed engine can have a lot of problems if the manufacturer does not have good production or quality control processes. I hope that Shenyang Liming can fix its current problems. Otherwise, all of the production responsibility should be shifted to Xi'an AeroEngine PLC (factory 410). XAE has been mass producing WS-9 for JH-7A without any major reported problems and is also responsible for one third of the parts on WS-10. I believe that it is also responsible for producing WS-15 and large bypass turbofan engines for Y-20 once those engines are ready for mass production. It is obviously a long way from reaching the manufacturing quality of GE, PW and RR, but it is the golden standard of Chinese AeroEngine companies. It also scored major boast recently when it formed join venture with Nexcelle to produce and assemble jet engine nacelle components of the C919 project. These things will only help the project management and quality control of XAE. At this point, you may wonder why China does not just give up on Liming and pass everything on to XAE or even any of the other AeroEngine manufacturer. I think that China is trying to keep several factories around to foster competition. It remains to be seen whether or not XAE or GuiZhou Liyang or Chengfa group (factory 420) or any other factories will get in on WS-10. So, while J-20's first flight with WS-10 is a good sign, we still need to wait a couple of years to see if Liming or XAE or anyone else can finally reliably mass produce WS-10 engines for J-10 and J-11.

Questions have also been raised about whether other parts of a 5th generation program like missiles, avionics, aerodynamics, materials and stealth can reach that level. I think what we have seen recently in Zhuhai airshow with regards to PGMs and AShM + reports of different 5th generation AAMs in advanced development show that this is not an area of concern. In fact, aviation week reported that most of the next generation missiles were all designed with the weapon bay of J-20 in mind. I also find radar and avionics to not be an area of concern. The J-10B platform will be used to test out a lot of avionics that will eventually deployed on J-20 (albeit improved in performance). From the recent CIDEX 2010, it is apparent that the Chinese electronics industry has come a long way in a short time and is more than capable of developing and producing top notch of avionics for fighter jets and other military hardware. I think aerodynamics is another area that should be quite well developed. I certainly expect J-20 to be far more maneuverable than F-35 and at least on the same level as T-50 and F-22 in flight performance. The areas that I do question are material and stealth. Does China have the ability to produce the high quality composite carbon polymer, titanium and other material needed for a 5th generation fighter jet. I think they do due to all of the work they have with airliners, which are at the cutting of material technology. For example, Harbin aviation industry group is cooperating with Airbus as a supplier for composite material on A350. At the same time, AVIC-1 is also cooperating with Hexcel and Boeing to produce composite materials for Boeing jets. SAC is in charge of the entire aluminum-lithium fuselage for Bombardier's C-Series jets. That leaves us with the biggest question of stealth. I've already heard plenty of complaints about the effect that the canards and the variable DSI-like intake would have on stealth. I think when CAC was developing J-20, they had to make compromises between its weight, aerodynamics and stealth. They definitely developed it with the intention of creating a LO-platform as we can see from internal weapon bay, the general shaping of the aircraft, the jagged edges of all the compartments and panels and the "stealthy nozzles" on the engine. However, what kind of affect would the canards or the intakes or anything else would have all the signature of the aircraft. Did they develop J-20 with full aspect stealth in mind? And what kind of results have they achieved in plasma stealth and application of radar absorption material? These are the things I don't know and we will have to wait to be answered. One of the most significant part of J-20's development is that these areas of development can be applied on J-10 and J-11 to improve their capabilities.

What does J-20 mean for the aircraft makers of AVIC-1? It appears to all of us that CAC/611 Institute has overtaken SAC/601 Institute as the top dog of AVIC-1. After all, CAC beat SAC in the competition for the 5th generation jet and the 4th generation jet (J-10). It also scored many export contract with J-7s and JF17s, while SAC has not done anything. From this, SAC has taken a lot of heat for its inability to produce anything new, while continuing to develop new variants of J-8. I do think that a lot of it is unwarranted. It probably does not have the ability to innovate like CAC, but it has done a lot of good things with flankers. China made the decision to locally produce Su-27s, because it could not at that time develop a comparable fighter jet. While CAC was given resources to develop J-10 (and it did a great job), SAC was forced to learn something as complex as Su-27 and produce it. Sukhoi has been very surprised to find out that SAC was able to learn enough about su-27s so shortly to be able to develop (or copy as the Russians call it) and completely locally produce J-11B and J-11BS. With its experience in developing J-11B/S and studying T-10K prototype, it was able to fast track and quickly develop J-15 fighter jet. Even though CAC is the main contractor for the J-20 project, SAC's experience in heavy fighter and high quality titanium and aluminum alloy with J-11 project has been extremely important in J-20's development. So as we move forward, CAC and SAC are both very important in the future of Chinese military aviation. As SAC has shown in its ability to land major supplier contracts with Boeing, Cessna and Bombardier. I also hope that Xi'an AC and Shaanxi AC will continue to advance in RnD and production through future transport and bomber projects. It is important to continue to foster competition within AVIC-1 and compete in international aerospace industry.

The other big question is what J-20 will mean for PLAAF. In the current time, J-10 and J-11 form a good light-heavy fighter jet combination with JH-7A as the main strike bomber and H-6 as strategic bomber. PLAAF still has a large number of J-7 and J-8 regiments that will need to be replaced in the coming years. In spite of what some may think, PLAAF does not have endless amount of cash that it can spend on new weapons procurement. It is important to spend an increasingly amount of budget on recruiting the best pilots and putting them through the best training programs. Even if PLAAF is somehow handed the entire F-22 inventory of USAF today, it would not have enough budget to operate and maintain them while also maintaining all of its other aircraft divisions. Even in 10 years when J-20 first enters PLAAF in meaningful number, PLAAF will not have enough budget to field it in large number. You may ask at this point why they do not just shrink the size of its air force like what most other air forces are doing. They have actually shrunk their air force quite a bit already when J-6s were put out of commission and will probably shrink a little more when J-7s retire. However, China has a very large airspace and cannot shrink past a certain point. As a result, PLAAF will likely be made up of a combination of the very hi (J-20), the middle (J-10s, J-11B+), the lo (early flankers variants, J-7/8s) and non-fighter jets (JH-7A, AWACs, K-8, L-15, Y-8/9...) by 2020-2025. Over the next 10 years, J-7 and J-8 regiments will slowly retire out of service. At the moment, J-7s are replaced by J-10s while J-8s are replaced by flankers and newer variants of J-8s. Flankers are likely to remain in service with PLAAF for a long time, because they will be very useful in the roles of fighter-bomber and strike aircraft even after the proliferation of stealth aircraft. If XAC does not develop a replacement for JH-7, then J-11BS could eventually be used to replace JH-7 regiments. Some people have wondered about the role of J-10 in PLAAF after J-20's induction. Some have even questioned the need for J-10B or future variants of J-10s. I think that J-10B or a future variant of J-10 will form a hi-lo combination with J-20 as the backbone of PLAAF's air superiority fighter jets. Some of the technologies tested on J-10B can then also be used on J-10A to improve its performance. Either way, I think J-10s will continue to replace J-7 regiments around the country and become the work horse of PLAAF. It is important to watch out the engine situation of J-10s. I'm hoping that WS-10 series will soon become reliable enough to be used on J-10s. Aside from J-10s and J-11s, it seems that PLAAF also wants to use a cheaper 4th generation option to replace some of the remote J-7 regiments. After all, you don't really need J-10s to protect the airspace against Kazakhstan or Mongolia.

That seems to be where JF-17s come into play. From what I'm gathering on Chinese bbs, it seems that PLAAF wants an ultra cheap option under $15 million to replace some of the J-7 regiments. You may think it is crazy that PLAAF regards the $25-30 million price tag of a J-10 to be too expensive, but that is the case. If PLAAF does pick JF-17 (or a new cheap 4th generation) design, it will not be as fancy as the one prepared for PAF. It would have to be using a domestic engine like WS-13 to lower the cost. It would probably not be required to have more than 7 hard points or have any significant multi-role capability. Its radar will probably be similar to KLJ-7 and not required to have greater concurrent engagement capability. Basically, you can think of it as a low cost, bare bone JF-17 that can fire BVR weapons and have reasonable range. At this point, we will have to wait for pictures from CFTE to see when or if this cheap 4th generation fighter jet theory will come to fruition. Either way, I think PLAAF will continue to stay within its budget and not go after too many expensive options and retain quantity to counter all of its perceived threats.

J-20's first flight is a significant turning point in the history of PLAAF and Chinese aviation industry. It shows the progress that Chinese military aviation industry has made in the past 15 years. It really shows that CAC has turned out a young and energized generation of engineers capable of designing advanced military aircraft. We will likely see continued progress of J-20, J-10, JF-17 and different UAVs from CAC in the coming years. We should also not overlook the many challenges, like engine and stealth technology, that China faces in its development. J-20's unveiling does not mean China has caught up with the west, but rather it has learnt a lot from everyone and has gained a lot from cooperating with everyone. And the Chinese aviation industry can only grow from continuing to cooperate with Western companies in C919 and other aircraft programs. Like? J-20 had its first flight, what now? for wallpaper? Shar this image to J-20 had its first flight, what now? for your friend.

DUI Appeal of the Day (DAD) When the Expert Can't Add or Subtract

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In State of Maine v. Caron, --- A.3d ----, 2011 WL 82197 (Me.), 2011 ME 9, the defendant was charged with DUI following a rollover accident resulting in serious injuries to the vehicle's other occupant. At trial, the issues included whether defendant (or the victim) was the driver, and also extrapolation of the defendant's blood alcohol back to the time of driving. The State's expert testified that he concluded that the defendant was the driver based upon the defendant's "left-sided injuries" and the victim's :right-sided injuries". The state expert also calculated the defendant's BAC to be above the limit at the time of driving.





On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.







Finding no error in the trial court's determination that the expert was competent, the appellate court stated:







As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.







We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-
alcohol test.



The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).



(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)





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DUI Appeal of the Day (DAD) - Suicidal Stop Reversed

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In State of Ohio v. Dunn, Slip Copy, 2010 WL 5452112 (Ohio App. 2 Dist.), 2010 -Ohio- 6340, a police officer received a dispatch notice that there was a suicidal male driving a tow truck and that he was planning to kill himself when he arrived at certain location. The dispatcher gave Appellant's name as the driver and mentioned that he had a weapon. The dispatcher noted that the vehicle was a “big rig” tow truck displaying the name “Sandy's” towing company. Officer Brazel spotted the tow truck and called for backup assistance before initiating a traffic stop. Butler Township police arrived and the two officers signaled for Appellant to pull over. After stopping the rig, Appellant immediately exited the vehicle and was visibly upset and crying. The officers saw Appellant holding a cell phone, but did not observe any weapon. The officers drew their weapons, patted Appellant down and handcuffed him. They did not find any weapon on his person other than a small pocketknife. As Officer Brazel was walking back to his police cruiser, Appellant stated: “[I]t's in the glove box.” The officer asked him if he was referring to the gun, and Appellant said “yes.” Butler Township Sergeant Stanley checked the glove compartment and found a loaded weapon, and he confiscated and secured the weapon. Neither officer had explained the Miranda rights in any fashion to Appellant during or after these events. Officer Brazel drove Appellant to Good Samaritan Hospital to be involuntarily committed. During the drive, Appellant told the officer that he had been having problems with his wife and that he intended to shoot himself after he dropped off his tow truck.

The defendant filed a motion to suppress, alleging that the stop was unlawful. The trial court denied the motion. The trial court determined that the police were acting in response to an emergency and found that the need to protect or preserve life provided the exigent reasonable circumstances to justify the traffic stop.



The trial court also found that the police officers did not engage in custodial interrogation, and therefore, Appellant's voluntary comments made during the traffic stop should not be suppressed. The defendant was convicted and this appeal ensued. The defense argued on appeal that, because the arrest was based on a police dispatch bulletin, the state was required to establish the factual basis of the bulletin at the suppression hearing. The appeals court agreed, stating that the dispatcher did not testify at the hearing, and the record was completely devoid of any evidence to show that the dispatcher had a reasonable basis to issue the dispatcher's bulletin. The appellate court stated that "because there was no factual basis established for the traffic stop, all evidence deriving from the stop should have been suppressed." The court further elaborated:



In the instant case, there is nothing in Officer Brazel's testimony to establish the basis for the dispatcher's bulletin that led to Appellant's traffic stop. Although the parties mention in their appellate briefs that Appellant's wife was the informant, and it is possible that all of the parties understood this to be the case, the record is completely silent to this fact at the suppression hearing. Officer Brazel testified that he did not know who the informant was at the time and had no direct conversation with the informant. (Tr., p. 19.) In fact, there is no information about the informant contained anywhere within the transcript of the suppression hearing. Nothing in Officer Brazel's testimony explains what precipitated the dispatcher to send a report that Appellant was suicidal and had a gun in the vehicle. Because Officer Brazel was the only person who testified at the suppression hearing, and the officer supplied absolutely no testimony relative to the information, we must conclude that the state did not fulfill its burden to establish that the police dispatcher had a reasonable basis to send the bulletin which led to the traffic stop.



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DWI Appeal of the Day (DAD) - Blood Search Warrant Insufficient

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Rarely does any DWI reported out of the Texas appellate courts end well for the defendant. This is one of those rarities. In Farhat v. State of Texas, --- S.W.3d ----, 2011 WL 56056 (Tex.App.-Fort Worth), the defendant was arrested for DWI by Corporal Finley. Corporal Finley then prepared a sworn affidavit for a blood-draw search warrant, and the magistrate subsequently signed a search warrant based on the affidavit.



The case presents a good summation of search warrant law, both federal and state:



The police may obtain a defendant's blood for a DWI investigation through a search warrant. * * * A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. * * * Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. * * * Article 18.01(c) requires an affidavit to set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. * * * No magical formula exists for determining whether an affidavit provides a substantial basis for a magistrate's probable cause determination. Tolentino, 638 S.W.2d at 501. Instead, when a court reviews an issuing magistrate's determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences.



The affidavit in support of the blood warrant states, in total,



On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley # 516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road. I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone. I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates. The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane. As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot. I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC. I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic]. I asked the defendant to step out of the vehicle to check to see if he was ok to drive. The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.



The appellate court reversed the trial court's finding that the affidavit established probable cause, making such statements as the following:



In other words, we hold that the meager facts contained within the four corners of the affidavit did not provide the magistrate with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood.* * * trial court's findings of fact state that Corporal Finley suspected Farhat of DWI “based on the erratic driving behavior, the pills in the console, and the Officer's opportunity to personally observe the driver.” But the affidavit contains no mention of what those personal observations were. * * * “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of the affidavit ... [but] it is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” * * * Because the affidavit is totally devoid of any of the officer's specific personal observations of Farhat, the affidavit contains no facts within its four corners from which the magistrate could have reasonably inferred from Farhat's demeanor, behavior, or appearance that there was fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood. * * * The magistrate's probable cause determination cannot be a mere ratification of Corporal Finley's conclusions.* * * We cannot agree with the trial court's finding that a reasonable interpretation of Corporal Finley's statement in his affidavit that Farhat “continued for about a half a mile in the left lane” was that Farhat “was driving in the wrong lane, to wit: the oncoming traffic.” Why would an officer follow a vehicle that is driving into oncoming traffic for half a mile without immediately turning on his patrol vehicle's overhead lights and executing a stop? The affidavit clearly demonstrates that Corporal Finley did not activate his overhead lights during that one-half mile; he waited until after Farhat turned into the KFC parking lot to initiate a stop. * * * We do not know from the affidavit the extent of Farhat's weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts.* * * Too many inferences must be drawn and too many facts must be read into the affidavit in this case, which result in at most “a tenuous rather than a substantial basis” for the issuance of a warrant.



In finding that the affidavit fell short of proving probable cause, the appellate court also determined that the error was 'not harmless':



Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. * * * Because the error involved is of constitutional magnitude, we apply rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to Farhat's conviction or punishment. * * * The question is whether the trial court's error in denying Farhat's motion to suppress was harmless beyond a reasonable doubt. * * * In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction. * * *



The only evidence that Farhat was intoxicated came from the results of a blood test, obtained in violation of Farhat's constitutional protection against unreasonable search and seizure. We are thus unable to determine beyond a reasonable doubt that the trial court's error in denying Farhat's motion to suppress did not contribute to Farhat's conviction or punishment for DWI. See Williams, 958 S.W.2d at 195. We sustain Farhat's sole point.





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DWI Appeal of the Day (DAD) -Precluding Defendant's Use of PBT Denies Due Process

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In Fischer v. Hollen, Attorney General of Wisconsin, --- F.Supp.2d ----, 2011 WL 66029 (E.D.Wis. 2011), the defendant field a habeas corpus petition, alleging that he was denied due process when the State of Wisconsin barred him from presenting the defense that his BAC was below 0.08 at the time of driving, and that the PBT result was proof of the same. The defendant had been charged with and convicted of OWI. He planned on using the PBT result, and then expert testimony, to prove he was under the limit of 0.08 at the time of driving. The trial court barred the PBT, and also his expert's resulting opinion. The Wisconsin Supreme Court upheld the preclusion, finding that a PBT is never admissible in an OWI trial. In this appeal, the federal court found that the Wisconsin Supreme Court's ruling denied the defendant the right to present a defense to his charges, in violation of his constitutional rights. The State of Wisconsin then filed this motion "to alter or amend judgment." The motion was denied. Some of the court's findings and statements are highlighted below:



The respondent contends that the court also erred when it discussed a probability that Fischer would have been acquitted had the expert's testimony been admitted and believed by the jury. As stated above, Fischer was convicted of both operating with a prohibited alcohol concentration, see Wis. Stat. § 346.63(1)(b), and operating while under the influence, see Wis. Stat. § 346.63(1)(a). Although found guilty of two crimes, for sentencing, there is only one resulting conviction, and the same sentence would have been imposed whether Fischer was found guilty of either or both offenses. See Wis. Stat. § 346.63(1)(c). The respondent contends that the excluded expert testimony was relevant only to the operating with a prohibited alcohol concentration offense and thus, even if the expert testimony had been admitted and believed by the jury, Fischer would still have been convicted of operating while under the influence and received the exact same sentence.



One need look only to the instructions given to the jury to understand the significance of the BAC evidence in the operating while under the influence charge. The jury was instructed as follows with respect to the operating while under the influence charge:



If you are satisfied beyond a reasonable doubt that there was .08 grams or more of alcohol in 100 milliliters of the defendant's blood at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant at the time of the alleged operating ... but you are not required to do so.



* * *



Evidence has been received that within three hours of the defendant's alleged operating of a motor vehicle a sample of the defendant's blood was taken. An analysis of the sample has also been received. This is relevant evidence that the defendant had a prohibited alcohol concentration and was under the influence at the time of the alleged operating.



Under certain circumstances, it is theoretically possible that a jury could find a person guilty of operating while under the influence even though it found that the defendant's BAC was below the legal limit. However, as to the converse, if the jury finds that the defendant's BAC is over the legal limit, based upon the instructions quoted above, a guilty verdict on the operating while under the influence charge is almost sure to follow. Thus, the fact that Fischer was convicted of operating while under the influence may simply reflect the jury's conclusion that Fischer's BAC exceeded the legal limit.



Hypotheticals aside, as a practical matter, BAC evidence is the coup de grâce of a drunk driving case. A jury that concludes that an individual's BAC is below the legal limit is exceptionally unlikely to convict the defendant of any drunk driving crime. Thus, under the circumstances of a case such as this, a conclusion that a defendant's BAC was below the legal limit will almost surely result in an acquittal of not only the operating with a prohibited alcohol concentration charge, but also of the operating while under the influence charge. This is the likely result, even though under certain circumstances, a conviction might be obtained for the under the influence charge, despite the defendant operating with a legal BAC. Therefore, re-considering the respondent's present argument, the court remains convinced that the interest of the defendant in the admission of the PBT evidence so strongly and clearly outweighs the interest of the state in barring the admission of the evidence that the Wisconsin Supreme Court's decision affirming Fischer's conviction was unreasonable.





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DUI Appeal of the Day (DAD) - When is Blood being Drawn for Medical Purposes?

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In Arizona v. Hansen, Not Reported in P.3d, 2010 WL 5549045 (Ariz.App. Div. 2) the driver was involved in a single-car accident and eventually transported by ambulance to a hospital. (Interestingly, no injuries to this driver are ever described or mentioned in the opinion). At the hospital, the officer requested that if hospital personnel drew Hansen's blood for any medical reason, they also retain a sample for DPS purposes. A hospital employee then drew blood from Hansen apparently using two needles, one for a blood draw ordered by the attending physician and the other to fill two vials provided by the officer. DPS analysis of the second sample revealed a blood alcohol concentration of .207.



In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:



Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.



¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).



IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:



Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.





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