Misdemeanor Odds and Ends UMPA 2015

MISDEMEANOR ODDS AND ENDS

UMPA 2015 – MOAB, UT

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Play 911 tape in opening

Show photos or video in opening

HGN video as demonstrative exhibit

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In addition to training, education and experience…

Father mother parent

Coach

Person human

Other ways?

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State v. Sanchez, 36 P.3d 446 (N.M. App. 2001).

(“I’m not gonna do nothing. Let’s go to jail.”).

Held refusal to submit to SFSTs can be considered, incombination with other factors, to constitute probable cause.

Other factors were minimal: odor of alcohol; blood-shot, wateryeyes; admission of drinking two beers.

Summers v. Utah, 527 F.2d 1165 (10th Cir. 1991) (provides atleast cf. support).

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Probable cause to arrest without SFSTs

American Fork City v. Singleton, 2004 UT App 172 (unpub.)

(Where…defendant…had glassy, bloodshot eyes and was

slightly swaying as he talked and became belligerent and

refused to cooperate when the officer attempted to administer

SFSTs there was probable cause to arrest for DUI).

Turn it around? What’s the opposite? Let suspect go?

Orem v. Longoria, 2008 UT App 168.

Jury instruction re refusal to submit to field sobriety tests is

proper.

“[Y]ou may take notice of and give whatever weight you

determine to the fact that [defendant] refused to perform any

field sobriety tests.”

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Defense motion to dismiss at the close of the prosecution’s case

Is the evidence “so [ ] inconclusive or inherently improbable

that reasonable minds must [have] reasonable doubt.” State v.

Puerto, 2002 UT App 112 (unpublished).

Odor of alcohol throughout the stop and arrest

Slurred speech throughout the stop and arrest

Admission of drinking two beers

Refusal to perform SFSTs

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State v. Reyes, 2005 UT 33.

Double refusals

• Refusal to do SFSTs

• Refusal to submit to chemical test

“Firmly convinced” jury instruction.

“Firmly convinced” in closing argument

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Defense counsel use of DL hearing transcript in criminal DUI case

Taylor Electric Inc. v. Fox Construction, Inc., 2012 UT App 325(“an official transcript – one prepared by a disinterested“official court transcriber” – may appropriately be consideredby a court in making a summary judgment determination.”

An official transcript will have been subject to cross-examination, which driver license hearings are not, at least inthe sense that cross-examination happens in court.

Nor are driver license hearings “judicially-supervisedadversarial proceeding[s].”)

Motion in Limine available. Why not file it in every DUI casethat gets set for trial?

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Civil DL hearing abuse

Informal complaint resolution system

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NAPC DUI Defense Expert Project

Janine Arvizu

Tony Corroto

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The original of this form and the Driver License Division copy of

the Citation must be sent within ten (10) calendar days of the

notice of arrest of the subject to:

Driver License Division

PO Box 144501

Salt Lake City, UT 84114-4501

(attn. DUI Section)

If a hearing is requested by the subject and you prefer to have

your notice sent by e-mail, fill in your e-mail address here .

Notification received by e-mail will be your only notice.

Complete for each arrest. 22

Tongue piercings - decision

Guy v. State, 823 N.W.2d 274 (Ind. 2005). Breath test with

tongue stud – breath result is still admissible as evidence of BAC.

Accessioning at toxicology lab video: mixed up vial defense

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Speaking of the Tox Lab…

Lexi May / substitute toxicologist issue

Raw data output

?

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Contamination defense (vacuum) / vacuum may expire

Invert tubes anti-coagulant / preservative / does not expire

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Antiseptic defense – “The antiseptic that was used to sterilize

my client’s arm contaminated the BAC/drug result.”

Law enforcement uses iodine to sterilize needle insertion site.

Hospitals use isopropyl alcohol (“rubbing alcohol”) to sterilizeneedle insertion site.

People drink ethyl alcohol, which is what the toxicology lab testsfor.

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Tox Lab Rejection Rate 18 – 23%

NAPC/NHTSA COOPERATIVE AGREEMENT

DTNH22-10-H-00289

(L-SID) Label, Seal, Initial, Date

1. Label with: – Subject’s Name (First and

Last)– Your agency case

number

2. Seal the tubes.

3. Initial and date seals.

Complete additional label information as required by your agency.

Packaging

1. Seal, initial, date the plastic container, if applicable.

2. Complete the Toxicology Request Form.

3. Seal, initial, and date the shipping box/envelope.

Labels and Seals

• No/missing information on label

• No/inadequate seal

• No initials/dates on seals

• Label illegible

• Tube content obstructed

• Plastic tubes

Discrepancies

• Sample information does not match Request Form

information

• Missing Request form or missing information

Vendor Label Info

• Each vendor label has different fields

• Some labels do not have the minimum required information (i.e., subject name, agency case #).

Kits Arrive Separately

• If not taped together, blood and urine from the same subject arrive separately.

• They may be assigned different Lab Case numbers.

• One of the two will have missing documentation.

Leaks / Breaks

• Urine containers are not properly capped.

• Blood vials are not properly packaged to prevent breakage.

In the last two weeks…

10 out of 259 rejected = 3.8% rejection rate

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Spice / bath salts decision – the game we’re in

State v. Heinrichs, 845 N.W.2d 450 (Iowa App. 2013).

Possession “synthetic equivalents” of cannabis

Defense claimed due process violation

Court affirmed

Utah Code § 58-37-4.2 (“synthetic equivalents”)

Using Insurite

Snedeker v. Rolfe, 2007 UT App 395 (stop upheld where

computerized check indicating indicated no insurance but driver

actually has personal insurance covering vehicle).

See also, State v. Biggs, 2007 UT App 261. (stop upheld where

vehicle registered to a business and not insured is reasonable

suspicion for stop, even where driver of vehicle actually had

insurance)

“NO INSURANCE”

“INSURANCE NOT FOUND”

Computer check of license plate, then check of registered owner

shows DOS, was reasonable suspicion in State v. Pike, 551

N.W.2d 919 (Minn. 1996).

Computer check of license plate showed registered owner had a

warrant, was reasonable suspicion in State v. Setinich, 822

N.W.2d 9 (Minn. App. 2012).

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R877-23V-5. Temporary Motor Vehicle Registration Permitsand Extension Permits Issued by Dealers Pursuant to Utah CodeAnn. Section 41-3-302.

(3) The expiration date on the original permit shall be legiblefrom a distance of 30 feet.

…

(4) The permit shall be displayed at the rear of the motorvehicle, in a place where the printed information on the permitand the expiration date may be easily seen.

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(5) Temporary permits must not be placed in rear windows orpermit holders with less than seventy percent lighttransparency.

(a) If a permit holder is used, it must not cover any of the printedinformation on the permit, including the expiration date.

(b) If a license plate frame is used in conjunction with a permitholder, it must not cover any printed information or expirationdate on the permit.

(c) Temporary permits must be protected from exposure to theweather and conditions that would render them illegible.

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Violation of administrative rule is reasonable suspicion

Utah Code Ann. § 41-1a-211(2): If a vehicle is operated on a

temporary permit issued under this section or Section 41-3-

302, that vehicle is subject to all other statutes, rules, and

regulations intended to control the use and operation of

vehicles on the highways.

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State v. Lord, 723 N.W.2d 425 (Wis. 2006) (provides inferential

support that violating an administrative rules is reasonable

suspicion); People v. Maikhio, 293 P.3d 247 (Cal. 2011) (same).

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41-6a-1618 Sale or use of unapproved lighting equipment or devicesprohibited.

(1) Except as provided under Subsection (2), a person may not…use on

or as a part of the equipment of a motor vehicle…any head lamp,

auxiliary fog lamp, rear lamp, signal lamp, required reflector, or any

parts of that equipment which tend to change the original design or

performance, unless the part or equipment complies with the

specifications adopted under Section 41-6a-1601.

49 CFR 571.108 - Standard No. 108; Lamps, reflective devices, and

associated equipment.46

No PIAs for CDL holders

49 CFR 384.226 Prohibition on masking convictions

The State must not mask, defer imposition of judgment, or allow

an individual to enter into a diversion program that would

prevent a CLP or CDL holder's conviction for any violation, in any

type of motor vehicle, of a State or local traffic control law

(other than parking, vehicle weight, or vehicle defect violations)

from appearing on the CDLIS driver record, whether the driver

was convicted for an offense committed in the State where the

driver is licensed or another State.

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Keep Calm and Understand

Elonis v. United States, 135 S.Ct. 2001 (June 1, 2015).

Webinar | August 14, 2015 | 2:00PM - 3:15PM EDT

Presented by Teresa M. Garvey, AEquitas Attorney &

Joan Meier, Legal Director, Domestic Violence Legal

Empowerment and Appeals Project (DV LEAP)

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Elonis v. United States, 135 S.Ct. 2001 (June 1, 2015).

Held: to convict under federal threats statute “the [necessary]

mental state is satisfied if the defendant transmits a

communication for the purpose of issuing a threat, or with the

knowledge that the communication will be viewed as a threat.”

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That standard requires more than general intent and more than

negligence but we’re not telling you the answer.

The Court did not address the First Amendment defense (but

Justice Alito’s dissent did).

What are we (they?) worried about?

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• 76-5-106 Harassment.

• (1) A person is guilty of harassment if, with intent to frightenor harass another, he communicates a written or recordedthreat to commit any violent felony.

• (2) Harassment is a class B misdemeanor.

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• 76-5-106.5 Stalking -- Definitions -- Injunction -- Penalties.

• (2) A person is guilty of stalking who intentionally orknowingly engages in a course of conduct directed at aspecific person and knows or should know that the course ofconduct would cause a reasonable person:

• (a) to fear for the person’s own safety or the safety of a thirdperson; or

• (b) to suffer other emotional distress.

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• 76-5-107 Threat of violence -- Penalty.

• (1) A person commits a threat of violence if:

• (a) the person threatens to commit any offense involvingbodily injury, death, or substantial property damage, and actswith intent to place a person in fear of imminent seriousbodily injury, substantial bodily injury, or death; or

• (b) the person makes a threat, accompanied by a show ofimmediate force or violence, to do bodily injury to another.

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76-10-1802 Misrepresentation of call or text communication identification.

• (2) It is unlawful for any person or individual, in connection with any telecommunications service or VoIP voice service, to knowingly cause any caller identification service or text message service to transmit false, misleading, or inaccurate caller or text message identification information:

• (a) with the intent to harm the recipient of the call or text message; or

• (b) to a public safety answering point when reporting an emergency.

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Forfeiture by wrongdoing

Two arrests same defendant same victim

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Short breakout

A challenge you face in DUI prosecution?

Solution if you have it.

If you could have any trial tool, exhibit, technology, what would it be.

Something effective you’re doing.

Or discussion item (e.g., safety belt amendment; HB 348 penalty reductions)

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Ed Montgomery, South Jordan City Prosecutor

Visual DUI and other closings

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The End

eberkovich@utah.gov

801 350 1303