Lesser DUI Charge Blocked by Double Jeopardy in DUI-Based Vehicular Homicide

When the elements of a lesser charge are incorporated in another and greater crime, double jeopardy bars prosecutors from charging the defendants with the lesser crime

Reyna-Abarca v. People, 2017 BL 59224, Colo., No. 13SC725, 2/27/17.

The Colorado Supreme Court held that double jeopardy bars charges of lesser crimes that incorporate the same elements of similar, yet greater, crime. In the case, the defendant was charged with a DUI as well as vehicular homicide-DUI, which incorporates the same elements of the DUI charge. The court used the test developed in Schmuck v. United States, 489 U.S. 705, 716 (1989), which defines a “lesser included offense.” In the test, if all of the elements of a lesser offense are also included in the greater offense, then the lesser offense is barred.

http://www.bloomberglaw.com/public/document/ReynaAbarca_v_People_2017_CO_15_Court_Opinion.

One Hand on ATV Handlebars Constitutes “Actual Physical Control”

Helping a child steer an ATV while under the influence of alcohol is still considered "actual physical control" because a "person need not operate...a vehicle before he or she may be found to be" in control

State v. Cook, 2017 UT App 8.

The Utah Court of Appeals held that one hand on an ATV handlebar constitutes actual physical control in regards to driving while under the influence, even if it only consisted of “helping” a ten-year-old child steer the vehicle. The defendant was spotted when an officer saw her and two other passengers speeding along a snow covered road riding an ATV. The officer noticed that the adult defendant on the vehicle had a can of beer in one hand and another hand on the handlebars. The defendant argued that she only had a hand on the handlebars to protect the child who was driving the vehicle, thereby not having actual physical control of the ATV. The Court of Appeals rejected this argument, citing law that says “actual physical control” means “existing or present bodily restraint, directing influence, domination or regulation.” State v. Bugger, 483 P.2d 442, 443 (Utah 1971). The court further noted that the distinction between “operating a vehicle and having actual physical control…a person need not operate…a vehicle before he or she may be found to be in actual physical control.” State v. Barnhart, 850 P.2d 473, 479 (Utah Ct. App. 1993). The Court of Appeals, after reviewing the defendant’s testimony of her actions in regards to the vehicle, found that she indeed exerted actual physical control over the ATV while intoxicated and affirmed the lower court’s conviction.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Cook20170112.pdf

Officer’s Notification of License Suspension Does Not Invalidate Consent for Blood Test

A driver’s consent to submit to a blood test is not invalidated because an officer informed him that refusal of such test would cause his license to be suspended under the implied consent law

State v. Blackman, 2016 BL 250352, Wis. Ct. App., No. 2015AP450-CR, 8/3/16.

    The Wisconsin Supreme Court held that an officer’s notification of the implied consent law requirement of submitting to a blood test after a minor accident did not coerce a driver into consenting to a test, which ultimately led to his license suspension. In this case, the driver was involved in a minor accident with a cyclist, whereas the implied consent law only applies to serious accidents that cause death or serious harm and the officer believes a traffic violation led to the accident. While the officer correctly recited to the driver the implied consent statute, the officer did not need to because it was not applicable to this situation. The Wisconsin Supreme Court noted, however, that it did not matter because the recitation of the implied-consent law was technically correct, thereby not invalidating the consent given from the driver. When a driver gives consent willingly, it is still consent. The court also commented that Wisconsin’s implied consent law was not invalidated by a recent U.S. Supreme Court decision that limits implied-consent laws only to civil penalties.

https://www.bloomberglaw.com/public/desktop/document/State_v_Blackman_No_2015AP450CR_2016_BL_250352_Wis_Ct_App_Aug_03_?1470950358

20-Year Delay Not A Speedy Trial

The government is responsible for a 20-year delay in prosecution when they neglected to bring the case before in spite of various opportunities.

 

City of Grand Forks v. Gale, 2016 BL 78728, N.D., No. 20150204, 3/15/16

     The North Dakota Supreme Court ruled that the city was mostly responsible for this delay because prosecutors did not try to find the defendant after he failed to appear at a scheduled sentencing for a plea deal in 1995.

     The court said that they "will not excuse defendants on speedy trial grounds when they purposefully evade prosecution, but we also cannot excuse the government when it does not fulfill its burden of diligent prosecution." The court indicated that both parties bore some responsibility, but that the city was more culpable because an accused is not responsible for his prosecution.

     Though the defendant had moved to Colorado, he had reappeared in North Dakota courts on various occasions for criminal and child support hearings, and the city did not try to execute the 1995 warrant until 20 years after the fact. The court looked at the four-part test in Barker v. Wingo, which weighs the length of the delay, the reason for the delay, the extent to which the defendant asserted his speedy-trial right, and any prejudice.

http://www.bloomberglaw.com/public/desktop/document/City_of_Grand_Forks_v_Gale_2016_ND_58_Court_Opinion?1459439254

Warrantless Blood Draw Justified By Broken Intoxilyzer

A blood draw performed without a warrant was justified by exigent circumstances after the officer attempted to use the police station's Intoxilyzer machine, but it was not functioning correctly.

 

State v. Arndt, 2016 BL 45450, Me., Sag-15-150, 2/18/16

     The deputy attempted four times to use the Intoxilyzer to obtain a blood-alcohol reading from a suspected drunk driver, but the machine was not functioning correctly. Because time was running out, as any alcohol in the blood stream was dissipating, the deputy had a paramedic take a sample of the suspect's blood.

     The Maine Supreme Court determined that the deputy's decision was reasonable, and did not go against Missouri vi McNeely, because 90 minutes had passed and he feared that the evidence would be lost because the Intoxilyzer was broken. See Missouri v. McNeely, 133 S.Ct 1552 (2013). 

http://www.bloomberglaw.com/public/desktop/document/State_v_Arndt_2016_ME_31_Court_Opinion?1457544612

No Right For DUI Suspect To Choose BAC Test

Under Pennsylvania's implied-consent law, drivers do not have the right to choose the type of blood-alcohol test they will submit to when they are arrested for suspected DUI.

 

Nardone v. Pa. Dep't of Transp., 2015 BL 429928, Pa., No. 141 MAP 2014, 12/29/15

    Similar to Utah's implied consent law, Pennsylvania's law states that all motorists "are deemed to have given consent to one or more chemical tests of breath, blood or urine." 75 Pa. Cons. Stat. §1547. The court said that that language does not mean the police must offer the suspect a "menu of choices."

    "By implicitly consenting to any and all chemical tests in Section 1547(a), a motorist arrested for DUI is subject to any and all tests, and he effectively relinquishes any right to choose his preferred test over an officers," the court stated.

    The court continued, saying "[i]t could not have been the General Assembly's intent to establish a rule of implied consent at the outset of the statutory scheme only to immediately thereafter devise a procedure for obtaining chemical testing that would nullify the rule."

http://www.bloomberglaw.com/public/desktop/document/JOHN_D_NARDONE_APPELLANT_V_COMMONWEALTH_OF_PENNSYLVANIA_DEPARTMEN?1452267926

Stop Justified When Wide Truck Crossed Fog Line Twice

Crossing the fog line twice, even in a wide truck, is enough reasonably suspicion to justify pulling it over.

 

United States v. Diaz, 2015 BL 289363, 2d Cir., No. 14-2505, 9/8/15

     The Second Circuit Court of Appeals overturned the district judge's suppression order even though they agreed that many things could reasonably be the cause for a driver's failure to stay in the lane perfectly. The court stated that "a momentary but reasonable loss of attention because of the appearance of an insect in the cab, or a sudden loud sound or flash of light" could cause a momentary crossing over the fog line.

     The court concluded, however, that the test is not whether the driver was actually careless or violated a traffic law, but whether an objectively reasonable police officer could have formed a reasonable suspicion that a violation occurred. Here, the court said, the officer's suspicion that a violation had occurred was reasonable because the truck crossed the fog line twice.

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Diaz_No_142505_2015_BL_289363_2d_Cir_Sept_08_2015