Georgia DUI Blog

Today in an per curiam decision, the United States Supreme Court reversed the Virginia Supreme Court and remanded the case to Virginia in light of Melendez-Diaz v. Massachusetts.  This is good news for the lawyers and defendants everywhere that wish to challenge scientific evidence in their trials.  It means that the government still has to bring live witnesses to trial to testify and be subject to cross-examination.  It was widely thought that the four dissenters in Melendez-Diaz granted cert on this case in an effort to quickly overturn Melendez-Diaz after Justice Souter retired and was replaced by Justice Sonya Sotomayor.

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court.  This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.  Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer.  The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists.  Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.

 “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”  A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team.  Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well.  This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here?  The court gave it’s blessing to two different ways to handle these witnesses.  Some states can require them in every case.  Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object.  Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial.  Additionally, I believe that this case invalidates OCGA 40-6-392 (e) (1-3) and (f).  These statutes all deal with testimonial evidence that the defendant has the right to confront.The State had better bring the area supervisor to testify in their next breath test case if they want to get those certificates in.  All lawyers need to read this case and be able to articulate the proper objections.

     The Minnesota Supreme Court issued a “split decision” in two Intoxilyzer source code cases today. However, the minimal showing required for disclosure of the source code augurs well for future defense efforts.

     In State v. Underdahl the Supreme Court ruled that the district court abused its discretion in finding the source code relevant and related to his guilt or innocence. Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. He advanced no theories on how the source code “could be related to [his] defense or why the [source code] was reasonably likely to contain information related to the case.”

     State v. Brunner, however, yielded a different result. This defendant submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath test machine analysis and its potential defects. Brunner’s submissions showed that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to his guilt or innocence. Therefore, the Supreme Court held that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

     The Court also considered whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous. The Minnesota Rules of Criminal Procedure require prosecuting attorneys to assist the defendant in seeking access to matters that are within the “possession or control” of the State. Both district courts had found that the State is the owner of the source code for the Minnesota model of the Intoxilyzer 5000EN, relying on the request for proposal (RFP) issued by the State when replacing the previous version of its breath-test instrument. The Supreme Court found that the source code was effectively in the possession or control of the state.

     As the law now stands in Minnesota, the defendant must make a minimal showing in order to obtain an order requiring the State to produce the source code. The remedy in per se cases, including the Minnesota version of “extreme DUI”, will be dismissal, with suppression the likely remedy in “less safe” cases. Will the State comply? Will CMI cooperate? Stay tuned.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Arizona v. Gant - Click here to read the full opinion.Today the U.S. Supreme Court limited the circumstances under which officers may search the passenger compartment of a vehicle after it’s driver had been arrested.  The Court ruled that an officer can only search a vehicle if it is for officer safety or if there is reason to believe that there is evidence in the car that relates to the crime which the driver was arrested for.The searches that we are talking about here are called searches incident to arrest.  Don’t confuse this with an inventory search, which is done whenever a vehicle is impounded.The practical application of this case will be moderate, but this isn’t a huge opinion for most people that get arrested.  People that have a sober passenger to drive the car, can turn the car over to them and avoid the inventory search.  If there is somebody that can come pick up the vehicle, that would work too.If the officers want to get around this, all they have to do is start towing every vehicle and do inventory searches instead of searches incident to arrest.  I guess I am a cynic.

Since January 14, 2009 when the Georgia Court of Appeals decided State v. Rish (A08A1922), Prosecutors have been jumping for joy and defense lawyers have felt like the sky is falling.

 

The sky is not falling, chicken little, but DUI defense has been dealt a blow as it relates to Motions to Suppress for lack of probable cause.  However, this case has been a bit over exaggerated by those that have not read it closely.

 

Background:

The trial court granted Rish’s Motion to Suppress for lack of probable cause and the State Appealed.  The Court of Appeals then affirmed the trial court’s ruling as it relates to the DUI less safe count, but went on to find that there was probable cause for a DUI per se arrest.

 

The Facts:

On June, 24 2007, the Early County 911 call center received a call about a customer that smelled of alcohol and was behaving erratically.  This customer was leaving a Subway restaurant and the caller gave a description of the car he was driving as well as the boat he was towing and his license plate number.

 

Deputy Morgan arrived at the restaurant and observed the vehicle in question and began to follow it down the road.  The deputy initiated a traffic stop approximately five minutes later for Failure to Maintain Lane after he observed the car “weave within its lane” and after the trailer’s right tire ran off the road.

 

Rish admitted to the deputy that he had consumed 3 to 4 alcoholic beverages earlier, with the last one being 30 minutes before the traffic stop.  The deputy asked Mr. Rish to take an alco-sensor, which is a brand of preliminary breath testing device.  He took the test and was arrested for DUI.

 

The Ruling:

The three-Judge panel of the Court of Appeals (Miller, Blackburn and Ellington) reversed the trial court’s ruling and found that there was probable cause to support an arrest for DUI Per Se (a BAC of over .08 grams).  Specifically, the court mentions that the two alco-sensor tests on the side of the road “were over .08” and that can be considered by police officers to determine if there is probable cause.

 

Some Important Things to point out:

1. This case DOES NOT hold that alco-sensor numerical results are admissible for any purpose.
2. This opinion does not mention how or why the record reflects that the results of the alco-sensor “were over .08.”  State v. Holler (224 Ga. App. 66) is still good law as far as I can tell.  The lawyer should always object to any mention of the results of the alco-sensor that goes beyond whether or not it was positive or negative for the presence of alcohol.  I suspect the lawyer did not object to the statements regarding the alco-sensor.
3. The numbers mentioned in Footnote 1 are Intoxilyzer results, NOT alco-sensor results.
4. The Court cites Kellogg v. State, 288 Ga. App. 265, 270 (2007), for the proposition that in determining whether or not probable cause exists for a DUI per se case, the factors to be considered may include the suspect’s admission to drinking and the results of an alco-sensor.  HOWEVER, the Kellogg case DID NOT admit the numerical results the alco-sensor, only that it was positive for the presence of alcohol.  It should also be noted that they were dealing with the lower per se limit of .02 in that case since Mr. Kellogg was under 21.

 

Summing up:

I think it is pretty clear that Rish is wrongly decided and this panel’s reliance on Kellogg is misplaced.  The Court completely ignored well settled law on alco-sensors, which are very unreliable to begin with.  ALWAYS object to the numerical results of an alco-sensor.  Always object to any statement about the results that goes beyond positive or negative.  A statement that says it was “high” or “over .08” is also objectionable.

 

Note:  I have it on good authority that a motion for reconsideration on these issues has been filed.  I will keep you informed of what happens.

 

 

Rob Leonard is DUI lawyer practicing in Cobb County, Georgia. He is certified as a field sobriety testing instructor and as an evidentiary breath alcohol technician. Visit Rob's Website

Zigan v. State, S06A1415 decided Nov. 30, 2006.  The court held that the State has the right to object to a defendant’s request for a bench trial.  They reason that he accused has the right to a jury trial, not a bench trial.  He is merely waiving his right to a jury trial and that this cannot be done without the State’s consent.

Palmaka II (Palmaka v. State - A06A1060) was published on July 27, 2006 by the Court of Appeals.  It is a bad case for the defense on the issues presented on appeal.  We will go into the substance of that later.  However, the last paragraph may contain a little gold nugget that defense lawyers need to help with attacks on the Intox 5000 in jury trials.  It may make a good jury charge.

“We further note that OCGA 40-6-392(a)(1)(A) provides only for the admissibility of the test results.  A defendant remains freee to challenge the weight and credibility of that evidence before the jury.”

Hmmm…that might be helpful.  Thanks to Jeremy Citron, the eternal optimist, for pointing that out.