North Carolina Court of Appeals Addresses ‘Appearing Nervous’ as Constitutional Basis for Search and Seizure of a Vehicle (Part 2 of 2)

Posted on May 20, 2013 by Steve

HOLDING:

The North Carolina Court of Appeals agreed with the defendant.  In the case at bar, there was a very detailed transcript and a DVD recording of the traffic stop.  The record in this case sufficiently establishes that the defendant’s attorney failed to file a motion to suppress and that the search or stop that led to the discovery of the evidence was clearly unlawful.   A “motion to suppress the evidence” would have been granted had it been filed and argued properly.

A passenger has standing under the 4th Amendment to challenge the constitutionality of a traffic stop.  In the case at bar, the defendant Canty challenges the constitutionality of the stop that led to the search, not the search itself.  In accordance with the United States Supreme Court, we hold today that a defendant has standing to contest the stop of the vehicle where he was a passenger.

In State vs Styles, the North Carolina Supreme Court held that reasonable suspicion is the standard for all traffic stops.  A traffic stop is a seizure for the purposes of the 4th Amendment.  “A traffic stop must be based on specific and articulable facts, as well as the rational inferences from those facts as viewed through the eyes of a reasonable and cautious officer being guided by his experience and training.  And unparticularized suspicion or hunch” does not pass constitutional muster for the basis of a traffic stop.

“Nervousness, like all other factors, must be taken in light of the totality of the circumstances present.  Nervousness can be an appropriate factor to consider when determining whether a basis for reasonable suspicion exists.”  Critically, nervousness has been considered a factor in prolonging the seizure after the traffic stop has been initiated, but nervousness has not been held to be a factor in initiating the traffic stop.  “Ordinary nervousness” does not amount to reasonable suspicion.

Refusal to make eye contact has not been considered in the past in the context of initiating a traffic stop; again, only prolonging a lawful one.

Based on the totality of the circumstances present in the case at bar, these factors fall short of reasonable suspicion to justify the initial traffic stop.  A motion to suppress this evidence in the case against Canty would have been granted by the Court.

Summarily, the record shows that there was no underlying traffic violation, the officer’s beliefs amounted to nothing more than “unparticularized suspicion”, nervousness, slowing down and not making eye contact is nothing unusual when passing a law enforcement vehicle stationed on the side of the highway.  While a vehicle’s slow speed can be a factor in initiating a traffic stop, the officer’s reports in this case state that the vehicle was going 65 miles per hour and slowed to 59 miles per hour which is insignificant in comparison to cases justifying a traffic stop based on excessively slow speed.  Accordingly, and based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic stop that resulted in the search and seizure of the weapons in this case.  The verdict of the lower court is reversed; and the matter remanded to the lower court with its specific instructions that any reference to the weapons be suppressed from any future proceedings.

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North Carolina Court of Appeals Addresses ‘Appearing Nervous’ as Constitutional Basis for Search and Seizure of a Vehicle (Part 1 of 2)

Posted on May 13, 2013 by Steve

On December 18, 2012, the North Carolina Court of Appeals issued its written opinion in the matter of State vs Nathaniel Canty.  The North Carolina Court of Appeals reversed the lower court conviction against Canty for possession of a firearm by a convicted felon and unlawfully carrying a concealed handgun.

FACTS:

On April 15, 2011, Sampson County Sheriff’s Office Corporals Bass and Pope were stationed along Interstate-40 in Sampson County, North Carolina.  Bass testified that he saw a green minivan slow down from approximately 73 miles per hour to 65 miles per hour.  Both Pope and Bass’ official reports stated that the vehicle in question was going 65 miles per hour before it slowed down.  The speed limit on that portion of Interstate 40 is 70 miles per hour.  Corporal Pope testified that his attention was drawn to the vehicle because he noted that “it slowed down even though it was not exceeding the posted speed limit.”  Corporal Pope went on to describe this reduction in speed as “dramatic” since the front of the vehicle dipped from the reduction in speed.  Both Bass and Pope went on to testify that the two occupants of the vehicle stared straight ahead and “appeared nervous.”  These observations apparently took place on the roadway.  Corporal Bass then pulled the patrol car from its location and began to follow the minivan.  Bass testified that they pulled alongside the minivan and that “the occupants would not make eye contact.”  At this point the minivan’s speed is around 59 miles per hour.  After following the vehicle some more Corporal Bass switched on the patrol car’s lights after he observed the minivan “completely cross the fog line.”  Consequently, based on the reduction in speed and crossing of the fog line, Bass initiated a traffic stop for “unsafe movement” on the part of the minivan. The defendant Canty was a passenger.  The driver was written a warning for “unsafe movement.”  While the driver was getting the warning ticket, Corporal Pope talked with the defendant Canty.  Pope testified that he asked the defendant about his travel plans and his destination; and that Pope became suspicious based upon Canty’s lack of eye contact, evasive answers and “nervous demeanor.”  Pope also testified that he could see a strong pulse in the defendant’s stomach and neck.  There was no odor of marijuana or alcohol in the vehicle or on the defendant.  After writing the warning ticket, Corporal Bass told the driver to “have a nice day.”  Subsequently, Corporal Pope asked the driver for permission to search the vehicle.  The driver consented to the search of the vehicle which revealed a revolver and a rifle in a suitcase.  Upon finding the weapons, Corporal Bass handcuffed the driver and the defendant.  After some questioning, Corporal Bass placed the defendant under arrest for carrying a concealed weapon unlawfully and possession of a firearm by a convicted felon.

CASE HISTORY:

The defendant was convicted in a jury trial of the two charges referenced above.  The defendant argues that the trial court committed plain error in admitting evidence that resulted from the traffic stop.  Additionally, the defendant alleged that his attorney made a mistake in not filing and arguing a “motion to suppress the evidence” that resulted from the unconstitutional traffic stop.

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In Florida versus Harris US Supreme Court Magnifies the Use of Drug Dogs during Automobile Traffic Stops

Posted on April 29, 2013 by Steve

FACTS:

K-9 Officer William Wheetley, of the Liberty County Florida’s Sheriff’s Office was on routine patrol with Aldo, a German shepherd trained detection dog, June 24, 2006.  While on patrol with Aldo Wheetley pulled over the defendant’s truck for an expired license plate violation.  Wheetley testified that the defendant was “visibly nervous” when he approached the vehicle.  Wheetley also observed an open container of beer in the truck’s cup holder.  Harris refused to give consent for Wheetley to search the truck.  At this point Wheetley walked Aldo around the exterior of Harris’ truck.  Aldo signaled that he smelled drugs in the area of the driver’s side door handle.  Based on Aldo’s alert, Wheetley searched the truck.  While the search did not turn up any of the drugs that Aldo was trained to detect it did reveal 200 loose Pseudoephedrine pills, 8,000 matches and miscellaneous other ingredients used for making methamphetamine.  Harris was arrested and charged with possession of materials used in the manufacturing of methamphetamine.  

PROCEDURAL HISTORY:

Harris moved to suppress the evidence found in the search of the truck on the basis that Aldo’s alert had not given or established Officer Wheetley probable cause to search the vehicle.  At this hearing Wheetley testified about both his and Aldo’s training in drug detection.  Extensive testimony was put forward as to the significant amount of training and certifications that Aldo had received in the area of drug detection.  Additionally, the state introduced “monthly K-9 training logs” consistent with that testimony and evidence.  On cross-examination, Harris’ attorney chose not to contest the quality of Aldo or Wheetley’s training.  She focused instead on Aldo’s performance in the two stops of Harris’ truck. 

The trial court denied the defendant’s motion to suppress and moved that Wheetley had probable cause to search Harris’ truck. 

The Florida Supreme Court reversed, holding that Wheetley under the Fourth Amendment.  In its ruling the Florida Supreme Court held that in order to demonstrate a dog’s reliability, the state needed to produce a wider range of evidence:   The state must present the dogs training record, an explanation of the training and certification, field performance records and evidence concerning the experience and training of the officer handling the dog…. .

The US Supreme Court certiorari to review the decision of the Florida Supreme Court. 

ISSUE:

Did the trial court properly determine that the “alert” of a drug detection dog during a traffic stop provides the necessary and “legal probable cause” to search a vehicle? 

HOLDING:

Yes; and accordingly, the decision of the Florida Supreme Court is reversed and overruled. 

In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” upon which “reasonable people act.”  To evaluate this practical and common sense standard this Court has consistently looked to the totality of the circumstances and rejected rigid rules and bright line tests.  The Florida Supreme Court flouted this well established approach by creating a strict evidentiary checklist to assess a drug detection dog’s reliability.  Requiring the state to introduce comprehensive documentation of the detection dog’s prior field performance, and holding that the absence of these field records would preclude a finding of probable cause (no matter how much other proof the State offers) is the opposite of a “totality” approach. 

In the case at bar, and under a correct approach, the trial court held a probable cause hearing which  focused on the dog’s alert, and allowed the parties to make their best case in evaluation of the totality of the circumstances present.  The trial court properly considered the evidence for probable cause – whether all the facts surrounded the alert and viewed through the lens of common sense would make a reasonably prudent person think that a search would reveal evidence of a crime.  In summary, the record in this case amply supported the trial court’s determination that Aldo’s alert gave officer Wheetley the necessary and legal probable cause to search the truck.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense.  He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo.  He is a frequent lecturer and author on topics related to the defense of DUI charges.  He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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Vermont Supreme Court Upholds Speeding Stop in DUI/Drunk Driving Case

Posted on April 22, 2013 by Steve

CASE NAMES:

Vermont v Dunham

FACTS:

Immediately prior to midnight, December 10, 2011 a Vermont state trooper observed a truck, being operated by the defendant Todd Dunham, traveling on a Vermont State highway.  As the defendant neared an intersection, and approximately 100 feet from where the officer was parked, the truck “spun its tires and appeared to accelerate rapidly.”  The officer was not able to use his radar, but he visually estimated the speed of the truck to be 45 miles per hour in a 30 mile per hour posted speed zone.   The officer did not observe the truck to be speeding as it approached the intersection. 

Having determined that the truck was speeding, the officer followed the defendant and initiated a traffic stop.   After a roadside investigation, the defendant was cited for DUI/drunk driving. 

PROCEDURAL HISTORY:

At the trial level the defendant filed a motion to suppress challenging the underlying traffic offense as being unconstitutional; this motion was denied.  The defendant appealed this motion to suppress, arguing that the officer’s visual speed estimate did not provide sufficient/constitutional “reasonable suspicion” for the traffic stop (Dunham’s case was consolidated for review with a similarly situated defendant Heidi Tatham). 

ISSUE:

Can a police officer’s visual estimate alone of a defendant’s speed support “reasonable suspicion” to warrant and justify a traffic stop?

HOLDING:

Yes.  “It is well settled that police may stop a vehicle if “reasonable and articulable suspicion” exists that a motor vehicle violation is taking place.   …reasonable and articulable suspicion does not require proof beyond a reasonable doubt or even proof by a preponderance of the evidence that criminal activity is afoot.  Rather, the officer needs more than only an unparticularized suspicion or hunch to make a lawful investigatory stop…. The issue of whether reasonable suspicion supports a particular stop is factually driven and depends upon the totality of the circumstances.”

Turning to the case at bar, the lower court deemed the officer’s visual speed estimate to be credible.  The officer had previously underwent specialized training in visual speed estimation for radar certification.  To successfully complete this aspect of radar training, it was necessary for the arresting officer to estimate vehicle speed to an accuracy of five miles per hour.  The arresting officer in Dunham’s case successfully completed the training in 2006 and had continued to make visual estimates of speed anywhere from one to three thousand stops per year for excessive speed.  Critically, the facts in Dunham’s case is that the officer observed the speed to be significantly higher than the posted speed limit such that the difference would be discernible to a casual observer and particularly to a trained law enforcement officer.  The presence of the defendant traveling in significant excessive of the posted speed limit gives strong indicia of reliability to support the trial court.  Based upon the significant speed differential, as well as the officer’s experience and training, we find that the trial court’s conclusion that the arresting officer had reasonable suspicion to effect the traffic stop is supported by the evidence; therefore, the denial of the defendant’s motion to suppress is affirmed. 

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense.  He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo.  He is a frequent lecturer and author on topics related to the defense of DUI charges.  He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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In Missouri v McNeely the US Supreme Court Addresses Warrantless Blood Draws in DUI/Drunk Driving Cases

Posted on April 18, 2013 by Steve

CASE: Missouri v McNeely – Opinion Number 11-1425, April 17, 2013

FACTS:

The respondent McNeely was initially detained by aMissouristate police officer for speeding and crossing the center line in his vehicle.  McNeely declined to take a breath test; and afterwards, he was arrested and taken to the nearest hospital for a blood test.  The arresting officer never attempted to obtain or secure a search warrant prior to the blood test.  The respondent refused to consent to the blood draw; however, the arresting officer then directed a laboratory technician to take a sample of McNeely’s blood.  His blood tested well above theMissourilegal limit in DUI/drunk driving cases.  McNeely was then officially charged with DWI (driving while intoxicated). 

PROCEDURAL HISTORY:

At the trial level McNeely moved to suppress the results of his blood test arguing that the forcible taking of his blood without a warrant violated his Fourth Amendment rights under the United States Constitution.  After hearing arguments from the defendant and the state, the trial court agreed and suppressed the blood alcohol reading from the trial of the case.  In ruling for the defendant, the trial court opined that the “exigency” exception to the warrant requirement under the Fourth Amendment did not apply in the case at bar because, apart from the lone fact that McNeely’s blood alcohol level was dissipating at the time of the seizure, no other circumstances suggested that the arresting officer faced any kind of emergency. 

The district attorney’s office appealed the trial court ruling to the Missouri State Supreme Court.  In affirming and upholding the trial court’s ruling, the Missouri Supreme Court relied on the previous US Supreme Court decision of Schmerber v California 384 U.S. 757 (where the US Supreme Court upheld a DWI/DUI suspect’s warrantless blood test where the officer “might reasonably have believed that the was confronted with an emergency situation, in which the necessary delay to obtain a warrant under the particular circumstances threatened to lead to the destruction of evidence.”)  The Missouri Supreme Court focused on the fact that the case at bar involved a routine DWI/DUI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was any type of emergency; and therefore, the non-consensual warrantless blood draw violated the respondent’s right to be free from unreasonable searches of his person pursuant to the Fourth Amendment of the United States Constitution. 

The state then appealed to the United States Supreme Court. 

ISSUE:

Does the lone factor that a suspect’s blood alcohol level is dissipating justify a warrantless blood draw in DUI/drunk driving cases?

HOLDING:

No.  The judgment of the Missouri Supreme Court and theMissouritrial court is affirmed.  In drunk driving investigations, the natural dissipation of alcohol in a suspect’s blood stream does not constitute an “exigent circumstance” in every case sufficient to justify conducting a blood test without a warrant. 

A warrantless search of a person is reasonable only if it falls within a recognized exception.  One recognized exception applies when “the exigencies of the situation” make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.  This court looks to the totality of the circumstances present in determining whether or not an exigent situation exists.

In the case at bar, the state of Missouriseeks a “per se” rule, contending that exigent circumstances always exist when a police officer has probable cause to believe that a person has been driving under the influence of alcohol because this type of evidence is inherently evanescent.  In cases such as this, a careful case by case assessment must take place.  When officers in drunk driving (DUI) investigations can reasonably obtain a warrant prior to having a blood sample drawn without significantly undermining the efficiency of the search, the Fourth Amendment of the United States Constitution mandates that that procedure be followed.  Again, each case must be decided on its own individual facts.  Critically, because an officer typically must take a DWI/DUI suspect to a medical facility or breath testing facility to determine, some delay between the time of the arrest and the time of the test is inevitable regardless of whether a warrant is obtained or not.  In other words, dissipation of alcohol in a person’s blood stream is going to happen in every case, not just this one.  Additionally, the state’s seeking of a “per se” rule also fails to account for advances in the 47 years since the Schmerber decision.  While the natural dissipation of alcohol in a person’s blood may support an exigency finding in a specific case, as it did in Schmerber, it does not categorically do so in all DWI/DUI cases. 

This court has consistently recognized that any compelled intrusion whatsoever into the human body implicates significant and constitutionally protected privacy interest of that individual.  The government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in that particular case.  The government’s other arguments advancing support of a “per se” rule are unpersuasive. 

Accordingly, the judgments of the lower courts are affirmed.   When the lone factor justifying a warrantless seizure of a person’s blood is that the alcohol is dissipating, and no other exigent circumstances exist, a search warrant must be obtained prior to the taking of the blood sample. 

Possible implications for South Carolina drivers accused of DUI/drunk driving:

The McNeely decision (a digest of which is above) contains some interesting language that could impact South Carolina drivers accused of DUI/drunk driving; or more likely, felony drunk driving.  These interesting points which need to be monitored for future developments would be as follows:

First, the bright line rule from McNeely is that the mere factor that alcohol dissipates over the course of several hours is not enough for a South Carolina police officer to forcefully take a blood sample from a South Carolina driver without first obtaining a warrant from a magistrate.  Critical direct language from the opinion would include, “A warrantless search of a person is reasonable only if it falls within a recognized exception.  That principle applies to a type of search, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation.  Such an invasion of bodily integrity implicates an individual’s most personal and deep rooted expectations of privacy.” … the privacy interest in requiring legal authorization from a judge before allowing a law enforcement officer to invade a person’s body in search of evidence is great. 

  1. South Carolina Code Section 56-5-2946.  Submission to testing for alcohol or drugs.  (A) Notwithstanding any other provision of law, a person must submit to either one or a combination of chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs if there is probable cause to believe that the person violated or is under arrest for a violation of Section 56-5-2945.”  This is the felony DUI/drunk driving provision which is currently the law in South Carolina.  As you can see, it does not allow a South Carolina driver to refuse to provide a blood sample.  This was exactly the case in the McNeely decision.  In the future, will South Carolina drivers accused of felony DUI be able to challenge the admissibility of a warrantless blood sample which was procured pursuant to this section?  Will South Carolina Code Section 56-5-2946 be viewed as unconstitutional in light of the McNeely decision?
  2. South Carolina Code Section 56-5-2946.  Submission to testing for alcohol or drugs.  (A) Notwithstanding any other provision of law, a person must submit to either one or a combination of chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs if there is probable cause to believe that the person violated or is under arrest for a violation of Section 56-5-2945.”  This is the felony DUI/drunk driving provision which is currently the law in South Carolina.  As you can see, it does not allow a South Carolina driver to refuse to provide a blood sample.  This was exactly the case in the McNeely decision.  In the future, will South Carolina drivers accused of felony DUI be able to challenge the admissibility of a warrantless blood sample which was procured pursuant to this section?  Will South Carolina Code Section 56-5-2946 be viewed as unconstitutional in light of the McNeely decision?

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense.  He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo.  He is a frequent lecturer and author on topics related to the defense of DUI charges.  He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

 

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South Carolina Court of Appeals Defines a Legal “Refusal” in DUI/Drunk Driving Cases

Posted on April 15, 2013 by Steve

CASE:  Chisolm v South Carolina Department of Motor Vehicles (Appellate Case No. 2011-196890, filed March 27, 2013)

FACTS:

On May 19, 2010 Officer Dyar Archibald arrested Chisolm for driving under the influence (DUI).  After Chisolm’s arrest for DUI, Officer Archibald transported her to the police station and offered her a breath test pursuant to the South Carolina DUI law.  Chisolm blew into the breath test instrument for approximately one minute and 53 seconds.  Officer Archibald testified that there was a steady tone while Chisolm blew into the machine (meaning air was going into the breath testing instrument).  However, Officer Archibald also testified that the instrument “just would not read it.”  There was no evidence presented that the breath test machine’s failure to register the defendant’s sample resulted from her own fault by trying to “fake out” or “thwart” the test; nor did she fail to cooperate and follow the officer’s instructions.  Because the machine would not read the sample, Officer Archibald considered it to be a “refusal.”  Consequently, Officer Archibald reported that Chisolm had refused to submit to a breath test and initiated a six month suspension of her license for same. 

PROCEDURAL HISTORY:

Chisolm requested an administrative hearing before the South Carolina Office of Motor Vehicle hearings to challenge her license suspension for allegedly refusing to take the breath test in a DUI arrest.  In this hearing, the hearing office upheld or sustained Chisolm’s license suspension, finding that Chisolm refused the breath test because Chisolm’s breath test results did not provide a registerable sample according to the breath test machine.

Chisolm appealed her license suspension to the administrative law court, and they affirmed the hearing officer’s decision.  This appeal to the South Carolina Court of Appeals followed. 

ISSUE:

Does a “legal refusal” only take place when the defendant actually refuses the conscious act of blowing into the breath machine?

HOLDING:

Yes.  In South Carolina, a “legal refusal” only takes place when the test subject actually refuses the conscious act of blowing into the instrument, and the administrative law court erred in interpreting the SLED policies and procedures in a contrary manner.  The ALC decision is reversed. 

We start with the proposition that when the breath test instrument emits a steady tone, the steady tone is an indication that the instrument is receiving a breath sample.  A review of the record before the court, and the video recording of the defendant actually taking the breath test, reveals that Chisolm wanted to take the breath test, blew into the breath test machine, and that the instrument produced a steady tone for an extended period of time that indicated sufficient air was going into the instrument.  Officer Archibald testified that he had been taught to listen for the “steady tone” when administering a breath test.  Here, Chisolm consented to the breath test, attempted the test, and then asked to take a second test.  There was no evidence whatsoever presented that Chisolm’s failure to register a breath sample resulted from her own fault by making or thwarting the test, being uncooperative, acting unruly, delaying the administration of the test, ingesting a prohibited substance or failing to cooperate with the officer’s instructions or behave in any manner that would amount to a constructive refusal to take the test.  Critically, there was no evidence presented whatsoever that Chisolm was attempting to thwart the test in any manner.  Officer Archibald testified that he had “no clue” why the instrument would not register the sample, that the DataMaster machine “just didn’t read it.”  Under the circumstances, Officer Archibald’s decision to indicate the testing procedure as a “refusal” was both arbitrary and capricious (again, given the facts of this case). 

The court finds it fundamentally unfair under the facts presided herein to label as a refusal a situation where the defendant blew into the machine for such an extended length of time with a steady tone emitted by the instrument and absent any allegations whatsoever that Chisolm attempted to fake or thwart the test.  Officer Archibald’s decision to enter a refusal, in light of his own testimony and the evidence presented, was both capricious and arbitrary. 

Accordingly, the lower court orders are reversed and the suspension of Chisolm’s license for six months is reversed.

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Columbia South Carolina Judge Throws Out Breath Test in DUI/Drunk Driving Case

Posted on March 19, 2013 by Steve

CASE NAME: City of Columbia v Cook

DATE: March 7, 2013

FACTS:

In this South Carolina DUI/drunk driving case, the defendant, through his attorney, filed a pre-trial motion to suppress the result of a breath test given by Cook during his arrest for DUI/drunk driving.  The basis for the suppression motion was that the defendant argued that a basic admissibility requirement for admission of a breath test result in South Carolina DUI/drunk driving cases is that “the proper procedure was used in the testing process.”  The defendant opined to the court that the officer’s instructions to the defendant to “blow hard” during the two minute sampling period is not a proper procedure for the correct administration of a breath test in a South Carolina DUI/drunk driving case. 

ISSUE:

Did the arresting officer follow the proper procedure in the breath testing process so that the result would be admissible in court?

HOLDING:

No.  The breathalyzer result was suppressed because the procedure employed in offering the breath test was incorrect; and because the proper procedure in the testing process was not followed in this case, and as required by previous case law (State v Parker, 271 S.C. 159, 245 S.E.2d 904 (S.C. 1978)), the defendant’s motion was granted and the breath test results suppressed from the trial. 

The officer’s instructions during the DataMaster test to “blow hard” – an instruction given several times during the two minute process – is not a proper procedure.  The defendant presented several exhibits during the hearing pertinent to this ruling.  Both the DataMaster owner’s manual and the SLED recertification course specifically instruct breath machine operators to not instruct a subject to “blow hard.”  Both of these documents were offered as exhibits to the court.  SLED regulation 73-2 states that, “The approved method of operating a breathalyzer shall be as set forth in the manufacturer’s instruction manual….”.  Accordingly, there is simply no way to avoid the unavoidable conclusion that instructing a subject to “blow hard” is not a proper procedure in offering the breath test as prescribed in Parker. 

Therefore, the defendant’s motion for suppression of the breath test result is granted.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense.  He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo.  He is a frequent lecturer and author on topics related to the defense of DUI charges.  He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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Vermont Supreme Court Upholds Speeding Stop in DUI/Drunk Driving Case

Posted on March 12, 2013 by Steve

CASE NAMES:

Vermont v Dunham

FACTS:

Immediately prior to midnight, December 10, 2011 a Vermont state trooper observed a truck, being operated by the defendant Todd Dunham, traveling on a Vermont State highway.  As the defendant neared an intersection, and approximately 100 feet from where the officer was parked, the truck “spun its tires and appeared to accelerate rapidly.”  The officer was not able to use his radar, but he visually estimated the speed of the truck to be 45 miles per hour in a 30 mile per hour posted speed zone.   The officer did not observe the truck to be speeding as it approached the intersection. 

Having determined that the truck was speeding, the officer followed the defendant and initiated a traffic stop.   After a roadside investigation, the defendant was cited for DUI/drunk driving. 

PROCEDURAL HISTORY:

At the trial level the defendant filed a motion to suppress challenging the underlying traffic offense as being unconstitutional; this motion was denied.  The defendant appealed this motion to suppress, arguing that the officer’s visual speed estimate did not provide sufficient/constitutional “reasonable suspicion” for the traffic stop (Dunham’s case was consolidated for review with a similarly situated defendant Heidi Tatham). 

ISSUE:

Can a police officer’s visual estimate alone of a defendant’s speed support “reasonable suspicion” to warrant and justify a traffic stop?

HOLDING:

Yes.  “It is well settled that police may stop a vehicle if “reasonable and articulable suspicion” exists that a motor vehicle violation is taking place.   …reasonable and articulable suspicion does not require proof beyond a reasonable doubt or even proof by a preponderance of the evidence that criminal activity is afoot.  Rather, the officer needs more than only an unparticularized suspicion or hunch to make a lawful investigatory stop…. The issue of whether reasonable suspicion supports a particular stop is factually driven and depends upon the totality of the circumstances.”

Turning to the case at bar, the lower court deemed the officer’s visual speed estimate to be credible.  The officer had previously underwent specialized training in visual speed estimation for radar certification.  To successfully complete this aspect of radar training, it was necessary for the arresting officer to estimate vehicle speed to an accuracy of five miles per hour.  The arresting officer in Dunham’s case successfully completed the training in 2006 and had continued to make visual estimates of speed anywhere from one to three thousand stops per year for excessive speed.  Critically, the facts in Dunham’s case is that the officer observed the speed to be significantly higher than the posted speed limit such that the difference would be discernible to a casual observer and particularly to a trained law enforcement officer.  The presence of the defendant traveling in significant excessive of the posted speed limit gives strong indicia of reliability to support the trial court.  Based upon the significant speed differential, as well as the officer’s experience and training, we find that the trial court’s conclusion that the arresting officer had reasonable suspicion to effect the traffic stop is supported by the evidence; therefore, the denial of the defendant’s motion to suppress is affirmed.

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Stiffer DUI/Drunk Driving Law Debated Today in the South Carolina Senate

Posted on February 26, 2013 by Steve

The South Carolina Senate is scheduled today to begin full debate on S.137.  S.137 was initially filed last year, but could not garner the necessary votes to make it out of the Senate. The bill was reintroduced this year at the beginning of the South Carolina legislative session. If the bill passes the senate, it would then head over to the South Carolina House of Representatives for a vote.

While other provisions are present in S.137, it is primarily an expanded “ignition interlock device” bill. As currently written, S.137 would require the majority of first offense DUI/drunk drivers to install ignition interlock devices on the cars following a conviction. Currently South Carolina law only requires ignition interlock devices for South Carolina drivers convicted of a second or subsequent DUI. The typical range of the expanded IID requirements for convicted South Carolina convicted DUI/drunk drivers would be from six months to 36 months (again, depending on the driver’s breath test level, prior convictions, etcetera).

Ignition interlock devices are small/miniature breath test machines that are installed on cars and require the driver to provide a breath sample through the machine before allowing the car to start. The car will not start if the ignition interlock device detects a breath alcohol concentration of .02 or higher.

South Carolina would be the 18th state to require ignition interlock devices on first offense drunk driving convictions.

Link to WSPA article

 

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New Jersey Supreme Court Issues Latest ‘Investigatory Stop’ Ruling (Part 2 of 2)

Posted on February 21, 2013 by Steve

HOLDING AND DISCUSSION:

The New Jersey Supreme Court granted certification and held that the police did not have a reasonable, articulable suspicion of criminal activity to justify the investigatory detention, which was based on nothing more than a non-particularized racial description of the person sought.  Furthermore, the Court held that the parole warrant was not an intervening circumstance that sufficiently purged the taint from the unlawful detention.

Specifically, the Court noted that the essence of the Fourth Amendment is that police may not stop and/or detain someone without particularized suspicion.  In the case at bar, a warrantless stop, the State must show that there is an established exception to the warrant requirement.  Law enforcement may approach a person in a public arena and ask if he is willing to answer questions, but the person need not answer, and his refusal does not, without more, provide reasonable grounds for the police officer to detain him.  A minimally intrusive field inquiry becomes an investigative stop or detention, a seizure under the Fourth Amendment, when a reasonable person believes that he or she is not free to leave.  An investigatory stop is permissible if it is based on specific and articulable facts which, combined with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.  Law enforcement hunches or subjective good faith, even if correct in the end, cannot justify an investigatory stop or detention.

In the instant case, Don Shaw walked out of an apartment building just as Detective Brown arrived to execute an arrest warrant.  Mr. Shaw being a black male was the only descriptive feature he shared with the fugitive sought.  As the trial court found, Mr. Shaw did not act in any way that would support articulable suspicion that he was engaged in criminal activity.  Law enforcement was allowed to question Shaw, but he had no legal obligation to answer.  Yet, his failure to respond or identify himself was the basis for his detention.  He was not free to leave and was held against his will by police.  Because the officers did not possess a reasonable and articulable suspicion to justify the detention, it violated the Fourth Amendment and the State Constitution.

The exclusionary rule generally bars the State from introducing into evidence the “fruits” of an unconstitutional search or seizure.  The purposes of the rule are to deter police misconduct and to uphold judicial integrity.  Under what is known as the attenuation doctrine, the exclusionary rule may be set aside if the connection between the police misconduct and the secured evidence becomes so attenuated as to dissipate the taint from the unlawful conduct.  In Brown v. Illinois, the Court created a three prong test for determining whether the attenuation doctrine applies: (1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. 

The Court focused on prongs two and three for their analysis.  The second prong is the presence of intervening circumstances, the parole warrant.  Whether a warrant is determined to be an intervening event in an attenuation analysis depends on that case’s particular set of facts.  Intervening circumstances and flagrancy factors can become intertwined, as in this case where officers initiated the stop and detention to determine if Mr. Shaw was wanted on a particular arrest warrant. 

The third prong, “purpose and flagrancy of the official misconduct,” proved most burdensome against the State and is determinative in the Court’s analysis in this case.  The only distinct features that Mr. Shaw shared with the fugitive being sought by law enforcement were their skin color.  Detective Brown was even prepared to take Mr. Shaw in for fingerprinting to determine his identification.  The right of freedom of movement without unreasonable interference by government officials is not debatable at this point in our constitutional development.  The Court further stated that “random detention of an individual for the purpose of running a warrant check, or determining whether the person is wanted on a particular warrant, contradicts the values that inhere in the Fourth Amendment.”  A random stop based on nothing more than a non-particularized racial description of the person sought is especially subject to abuse.

The Court concluded that, in the circumstances of the instant case, the parole warrant was not an intervening event that sufficiently purged the taint from the unlawful detention.  Mr. Shaw was detained to determine if he was named in an arrest warrant and ultimately arrested because he was the subject of a warrant, albeit a different one than the warrant triggering the stop.  The Court applied the exclusionary rule not only for Mr. Shaw but also because of every individual’s right to be free from random stops.  The Court suppressed the evidence, because “(this) sends the strongest possible message that constitutional misconduct will not be tolerated.”

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense.  He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo.  He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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