Judge Rules DUI Blood Tests Require Error Rate Report | Forensic Magazine

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Judge Rules DUI Blood Tests Require Error Rate Report | Forensic Magazine

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Estimating the Uncertainty | Forensic Magazine

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Estimating the Uncertainty | Forensic Magazine

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DUI Appeal - Open Alcohol/Liquor Proof Doesn't Require Chemical Test

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In Derosiers v. District of Colombia, --- A.3d ----, 2011 WL 1894854 (D.C.), the defendant was proven guilty of an open liquor violation. On appeal, the defendant claimed that the proof was insufficient because there was not chemical test. On appeal, the court held that the evidence was sufficient to support a conviction for possession of an open container of alcohol in a vehicle , even in the absence of a chemical test of the liquid in glass jar that allegedly contained alcohol, where the police officer observed and smelled liquid and recognized, based on his experience, distinctive smell of vodka emanating from clear liquid inside glass jar found next to defendant, smell of alcohol emanated from defendant, as well as from car in which jar was located, and defendant, who was asleep in front seat of vehicle parked in parking lot, appeared to be intoxicated at time jar was found next to her in car.



The appeals court stated:

"[W]e have previously ruled in other contexts, such as cases involving drug-related offenses, that “the identity of a controlled substance may be proved by circumstantial evidence” taken from the testimony of someone experienced in identifying the substance. Thompson v. United States, 678 A.2d 24, 28 n. 7 (D.C.1996); see also Duvall v. United States, 975 A.2d 839, 844 (D.C.2009) (“We recognize that in a prosecution for possession of a controlled substance, the government may establish that the substance is an illegal drug by means of circumstantial evidence.”); Bernard v. United States, 575 A.2d 1191, 1195 n. 5 (D.C.1990) (stating that the court has “no quarrel” with relying on circumstantial evidence based upon expertise acquired through education or experience in identifying illegal substances). While we have accepted the use of circumstantial evidence in certain drug cases, we have also emphasized that we do not “countenance any attempt to prove guilt by speculative means. A lay person's impression, for example, is insufficient to establish the identity of a suspected drug.” Bernard, supra, 575 A.2d at 1195. To withstand a sufficiency challenge, the circumstantial evidence must be compelling enough to persuade a reasonable fact-finder beyond a reasonable doubt that the substance in question was an illegal narcotic."

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Citroën C3 Picasso

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Lançado em 2003, quem diria que o pequeno C3 formaria toda uma família no Brasil? Também não é das mais extensas ou convencionais - na verdade são apenas a minivan Picasso surgida na Europa e sua variação aventureira AirCross feita por aqui – mas nós agora recebemos a Picasso “civil”, que só não é identica à francesa porque recebeu algumas pinceladas nacionais de ótimo gosto, em três versões e partindo de R$ 47.990 com garantia de três anos.

Baseada no C3 europeu de nova geração, ela traz um charmoso desenho cúbico que até lembra o Fiat Uno, mas sem os adereços aventureiros da versão que chegou antes. Com isso surge um estilo urbano até melhor que o original, com a frente mais agressiva e uma traseira que esbanja estilo, apostando na assimetria com um suporte de placa cuja cor pode variar entre preto e branco segundo a da carroceria, para sempre ter o melhor contraste.

Seu interior é o mesmo do AirCross, mas sem os instrumentos de off-road. Ou seja, temos o mesmo interior de 2,54 metros de entre-eixos, oferecendo um ótimo espaço para cinco pessoas, aliado à suspensão regulada para o conforto e com menor altura em relação ao solo. Seu motor é o mesmo 1.6 16v de 113 cv, mas com câmbio manual de cinco marchas ou automático de quatro para GLX (R$ 53.900) e Exclusive (R$ 60.400).

A versão básica GL já vem bem-equipada, trazendo ar-condicionado, direção hidráulica, porta-luvas refrigerado, tomada 12v, computador de bordo, vidros dianteiros elétricos ebanco traseiro bipartido. Partindo de R$ 50.400, a GLX traz vidro do motorista com one-touch e o comando elétrico dos traseiros, sistema de som com comandos satélite, indicador de temperatura externa e mesinhas do tipo avião, com airbag duplo opcional para ambas.

Exclusive é o nome da versão de topo (R$ 57.400). Vem recheada com bancos e volante de couro, ar-condicionado digital, airbag duplo, sistema de som com Bluetooth e entrada USB, piloto automático, alarme, sensores crepuscular, de chuva e de estacionamento, e freios com ABS e EBD, estes incluídos também na GLX automática. A versão de topo tem como opcionais sidebags dianteiros e GPS com tela de 7’’ no painel.

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Lawyer Complains about Large-Breasted Woman at Opposing Counsel Table

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BY JERRY CRIMMINS

Chicago Daily LAW BULLETIN STAFF WRITER

A local lawyer has complained in a pretrial motion that opposing counsel has a "large breasted woman sit next to him at counsel's table" whose sole purpose "is to draw the attention of the jury away from the relevant proceedings."

Attorney Thomas W. Gooch asked a judge to order the woman "to sit in the gallery with the rest of the spectators" and bar her from sitting at the counsel's table "until it is shown that this woman has any sort of legal background."

The case in Cook County Small Claims Court is a dispute over a used car purchased from Exotic Motors in November 2009.

Gooch's opposing counsel, Dmitry N. Feofanov, responded that the woman is his "paralegal assistant" and contended that Gooch cites no law or "good faith legal argument" why she can't sit at the counsel table.

Feofanov asked Circuit Judge Anita Rivkin-Carothers to impose sanctions on Gooch for Gooch's original motion.

Feofanov's firm is ChicagoLemonLaw.com, P.C., located in Lyndon, Ill. He represents the plaintiff in the used car dispute.

"If you got a crappy car, you called the right place," says his voice on his answering machine.

Feofanov has described himself in other cases as a "consumer protection lawyer" who in his previous life, "after coming to this country with the third wave of Jewish emigration from the Soviet Union in the late 1970s … was a concert pianist."

Gooch represents Exotic Motors. He is name partner in the law firm of Gauthier & Gooch with offices in Wauconda and Chicago. That firm focuses on professional malpractice, family law and civil litigation.

Gauthier & Gooch's website says it is "known for their brand of aggressive litigation."

"What I objected to was not a woman with large breasts," Gooch said in an interview. "Personally, I like large breasts.

"However, I object to somebody I don't think is a qualified paralegal sitting at the counsel table — when there's already two lawyers there — dressed in such a fashion as to call attention to herself."

Gooch said in another case, he was in mandatory arbitration in Cook County when Feofanov was the opposing counsel. Gooch said he objected to the same woman sitting at the counsel table and "the arbitrators wouldn't let her stay at the table."

To that, Feofanov, responded:

"I do not believe it is professional to try a case in the press. In response to press inquiries, I have provided the press with publicly available documents and my involvement ends here."

Feofanov gave Gooch's original motion complaining about the large breasted woman at the counsel table to a Chicago Daily Law Bulletin reporter in a response to a request, along with Feofanov's legal response.

Feofanov also provided other documents showing that his "paralegal assistant," identified in one place as Daniella Atencia, has been paid as a paralegal in two court orders by Cook County judges. Both times, the rate for the paralegal was $115 an hour.

"That's not a qualification," Gooch said. "That means Dmitry handed up a bill to a judge that said paralegal on it. I don't believe it's a legitimate thing. It's a sham."

Gooch also said, "We're going to put her on the witness stand, ask where she want to school. … I'll be the first to apologize if she turns out to be a trained paralegal. I don't think she is."

Feofanov said he received Gooch's motion complaining about this woman in a packet of pretrial submissions that lawyers give each other.

Gooch said he believes the motion has been filed by mail. "If it hasn't been filed," Gooch said, "I assure you it will be filed."

The case is Song and Maria Sayavongsa v. Exotic Motors, Inc. No 10 M1 106807. According to Feofanov, the trial date is June 28 in Room 1403 of the Daley Center.





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DUI Appeal - Pennsylvania Asthma Issue Reverses Suspension

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In Martin v. Commonwealth of Pennsylvania, --- A.3d ----, 2011 WL 1886459 (Pa.Cmwlth.) the defendant was arrested for DUI. At the station, told the officer that he had asthma. The defendant tried to blow without success 4 or 5 times. He was cited for a refusal. The police officer testified that a person with asthma should have no problem submitting, and that they usually provide an adequate sample after he gives them "a talking to."

On appeal, it was noted that the defense offered the deposition testimony of Kenneth Hurst, M.D. Dr. Hurst testified that he has treated Licensee for asthma since 2001 and for chronic obstructive pulmonary disease (COPD) since 2005. (Hurst Dep., 4/21/10, at 5, R.R. at 53.) Dr. Hurst stated that: (1) asthma and COPD are different diseases, ( Id. at 10–11, R.R. at 58–59); (2) Licensee was aware of his COPD prior to the August 21, 2009, arrest, ( Id. at 20, R.R. at 68); (3) Licensee was not aware of the seriousness of his COPD until September 9, 2009, after the arrest, when Dr. Hurst performed a pulmonary function test, which was “the first confirmatory test that was ordered on him,” ( Id. at 12, R.R. at 60); (4) before the test, “nobody really knew how bad it was,” ( Id. at 20, R.R. at 68); (5) before the test, Licensee's physicians discussed his medical condition with him as “both asthma ... and COPD,” ( Id.); and (6) because of his COPD, Licensee could not have completed the breath test without medication, ( Id. at 7–9, R.R. at 55–57).



In an earlier case called Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa.Cmwlth.1995) (emphasis added), a Pa. court stated:

"[W]here a licensee suffers from a medical condition whose existence, 1) affects the licensee's ability to perform the test and 2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered."

The state argued that it was the COPD that caused the insufficient sample, and that since the defendant had only mentioned asthma, then he could not meet the Hatalski conditions. The appeals court, in reversing the driver's suspension, wrote:

"Thus, the reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee's ability to complete one kind of test is to obtain results through a different chemical test. A licensee does not avoid testing by advising the officer of a medical condition, but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition. In the legal scheme, then, it is not the role of an officer to “play doctor” or assess the licensee's credibility."

Finally, the court wrote:

"A licensee is not required to inform officers of an unknown medical condition that would have affected his ability to complete a breath test. Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa.Cmwlth.2000). Here, because the trial court found that Licensee was not aware of the severity of his COPD and because there is no finding that Licensee knew the distinction between his asthma and his COPD, we conclude that, having informed the troopers of his asthma, Licensee was not required to inform them of his COPD."

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DUI Appeal - California Says that Pocket Bike is a Vehicle

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In People v. Varela, --- Cal.Rptr.3d ----, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771, while riding a pocket bike, defendant Martin Varela evaded a police officer who was attempting to stop him. A two-wheeled device with a motor and a seat for a driver is called a “pocket bike.” On appeal the defendant claimed that the pocket bike was not a motor vehicle because, inter alia, it was not designed for roadway travel. Analyzing the issue, the appeals court wrote:

“A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”



Section 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled.” Under the broad definition of motor vehicle it is not required that the vehicle be legally self-propelled on a highway. (citation)



Section 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use.”



A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.



Varela argues that legislative history refers to a pocket bike as a “device” and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) But we are compelled by statute to conclude that a pocket bike is a type of device that comes within the definition of a motor vehicle. There is nothing inconsistent about referring to a motor vehicle as a device.



Nor did the trial court err in instructing the jury that a pocket bike is a motor vehicle. Because a pocket bike falls squarely within the statutory definition of a motor vehicle, it is a motor vehicle as a matter of law."





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OWI Appeal - Implied Consent Warnings Don't Violate Separation of Powers Clause

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Today's case, Columbia County v. Devos, Slip Copy, 2011 WL 1885961 (Wis.App.) is being included in DAD due to the defense attorney's creativeness and 'moxie'. Here, the attorney argued that the addition of extra language in the implied consent warning was not authorized by the legislature, and thus its inclusion violated the separation of powers clause.



The contested 'additional' language was as follows:

“In addition, under 2003 Wisconsin Act 97, your operating privileges will also be suspended if a detectable amount of a restricted controlled substance is in your blood.”

The appellate judge found that the extra language was in fact authorized by another section of the Code besides the section with the original language, and so there was no error.



However, DAD enjoyed the creativity of the argument, and feels that under the correct factual conditions, it could be a valid theory of defense.



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Volkswagen Passat 7

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A história do Passat no Brasil é curiosa. Sua primeira aparição foi em 1974, com a carga de ser nada menos que o primeiro modelo da VW no país a abandonar o motor a ar. E, trocadilhos à parte, a água o fez vender como água. Virou símbolo de esportividade, chegou a terminar a década de 80 como pôde, e suas várias versões com ótimos conjuntos mecânicos o fizeram aposentar-se como clássico, na verdade idolatrado até hoje.

Nesta época a Europa mudava seu modelo e o Brasil ainda a seguia, mas a trouxe em 1984 como o glorioso Santana, com sua perua Quantum. Dessa vez voltado ao segmento de luxo, novamente teve uma passagem de sucesso, com direito até à tão cara quanto luxuosa versão Executivo, mas a década de 90 chegava e algo precisava ser feito com os agora “quadradões”.

Os alemães já tinham o Passat 3, mas os custos fizeram a engenharia brasileira preferir forçar os ventos dos anos 90 a passar pelo veterano Santana, gerando uma re-estilização curiosa: o requinte do seu interior e a elegância das linhas esculpidas em túnel de vento contrastavam com as portas pequenas e os quebra-ventos do modelo original.

Depois disso o Passat voltou com o nome original mas apenas como importado, e é como se apresenta na mais nova safra. Redesenho interessante da geração 6, o sétimo apresenta a não tão nova identidade atual da marca e esbanja elegância, tanto no exterior (da versão europeia, não da americana), como na cabine recheada de equipamentos. É o caso dos seus programas de segurança, como o ECB, que pode parar o carro sozinho em situações de perigo, e o XDS, que corrige derrapagens.

Nesta cabine existe um grande pacote de equipamentos, que inclui teto solar, GPS e sistema de som multimídia, e também o câmbio DSG de seis marchas, que comanda a única opção de motor do novo Passat: o 2.0 16v TSI que também equipa o Jetta, mas que aqui rende 211 cv, fazendo sedã e perua cumprirem o 0 a 100 km/h em menos de 8 segundos, e chegarem a 210 km/h de máxima.

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New Montana DUI Bill Requires Breath Tests Twice Daily

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A bill that requires repeat DUI offenders to submit to breath tests while awaiting sentencing for a DUI arrest was signed into law by Gov. Brian Schweitzer on May 6.



The 24/7 Sobriety Bill was promoted heavily by Montana Attorney General Steve Bullock and sponsored by Rep. Steve Lavin, R-Kalispell.



“As a Highway Patrol Trooper, Rep. Steve Lavin and law enforcement across our state see the carnage that repeat drunk drivers cause on our highways,” Bullock said following the bill’s passage in the legislature.



House Bill 106, the freshman legislator’s first bill, was approved by wide margins — 97-2 in the House and 41-8 in the Senate. Republican Reps. Jerry O’Neil, Keith Regier and Derek Skees and Republican Sen. Bruce Tutvedt voted in favor of HB 106, while Republican Sen. Ryan Zinke voted against the measure.



Under the bill, offenders arrested for a second or subsequent DUI are required to submit to a breath test twice a day, seven days per week, to show they’re sober from the time of their arrest to the completion of their sentence.



Bullock tested the 24/7 concept in a pilot program in Lewis and Clark County, but a similar program had already been in effect in Whitefish for about a year for people on bail awaiting sentencing . From May 2010 to April 2011, Lewis and Clark County officials administered more than 11,400 breath tests, and 99 percent of them came in at 0.0 percent.



The governor also signed Senate Bill 42, which makes it easier for law enforcement to get a warrant for blood tests on repeat offenders who refuse to submit to a breath test. Regier, Zinke and Tutvedt voted in favor of SB 42, while O’Neil and Skees were opposed.



Several bills failed in the legislature, including a measure that would extend the time frame in which prior DUI convictions could count in court. Under the current law, courts can only use DUI convictions within the past five years when determining charges and sentencing.



Montana has long been known as a binge-drinking state, and its highways are among the most dangerous in the nation. But several setbacks affected efforts to strengthen Montana’s DUI laws this legislative session.



In mid-January, Sen. Jim Shockley, R-Victor, was cited for an open-container violation after he was caught drinking a beer while driving through Missoula. Shockley, who was ready to present his DUI bill in Helena, was forced to resign his chairmanship of the Senate Judiciary Committee.



Then in early April, Republican Rep. Alan Hale, who owns a bar in Basin, surprised many with a speech that criticized DUI reform as bad for business. The DUI bills “are destroying a way of life that has been in Montana for years and years,” he said.



Supporters of tougher DUI bills included Rebecca Sturdevant, of Kalispell, representing Mothers Against Drunk Driving. Her son, Montana Highway Patrol trooper Evan Schneider, was killed Aug. 26, 2008, in a head-on collision on U.S. 2 near the House of Mystery. He was in pursuit of a small car that was driving erratically but was never found. The driver of the pickup truck that hit his patrol car during the pursuit had been drinking. Schneider and two people in the truck died in the crash.



“I think it’s a very, very important step forward in dealing with repeat offenders,” Sturdevant said about HB 106. “One of the key things with repeat offenders is they are driving drunk many times before they are arrested. This will make a huge difference in earlier intervention for these people.”





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Deerfield couple not liable for death of teen who drank in their home

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DUI Appeal - Georgia Requires Right to Independent Test or Suppression Occurs

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In State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.), the trial court suppressed the State's breath test on the basis of a failure to reasonably accommodate the defendant's request for an independent test. The facts indicated that the defendant Davis was arrested after being stopped at a roadblock:

Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn't know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary's or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary's and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger's vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.

In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:

The factors to be considered by the trial court in determining whether an officer reasonably accommodated an accused motorist's request for an additional chemical test include, but are not limited to: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facilities, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

Here, the trial court had previously found that:

[A]fter Davis requested an independent blood test, Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant's request, and the results of the State-administered breath test are inadmissible.

In affirming suppression, the appeals court concluded:



We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,

the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.

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Got An iPad? You Need These Apps. | Real Life Practice

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