Refusing to perform DUI roadside tests is not indicative of a “conciousness of guilt.”

On April 23, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, Mill Creek, News, Snohomish County, United States Constitution, by Scott W. Lawrence, Esq.

On September 29, 2006, Stafford County, Virginia Sherrif Deputy Peter Nelson and a number of other officers were investigating a burglary.  The officers believed that the perpetrator had fled the scene.  In order to contain and capture the suspect the officers set up a perimeter around the area using police vehicles with their overhead lights activated.

Mr. Jones drove slowly trough the perimeter two times.  Because the vehicle had tinted rear windows, Deputy Nelson “flagged down” Jones to make sure the thief was not hiding in his back seat.  Upon approaching the vehicle, and talking with Jones, Nelson became aware of a possible DUI when noticed a “strong odor” of alcohol coming from the vehicle.

Nelson continued his investigation of DUI by ordering Jones to exit the vehicle.  Jones complied.  Nelson testified that at that point he detected an odor of alcohol coming from Jones’s person.  Jones denied having consumed any alcohol, but that the odor might have been due to cough drops or incense.

Nelson testified to the usual “tell-tale” DUI signs: slightly slurred speech and glassy red eyes.  Jones seemed irrational and made inconsistent statements.  He did not know which county he was in and he stated he “came to help” Nelson, but Nelson “was trying to hurt him.”

 ”If you are not intoxicated, prove to me you’re not intoxicated,” Nelson said as he repeatedly asked Jones to submit to roadside DUI field sobriety tests.  Jones refused despite the Deputy’s persistence.  After about 15 minutes of converstaion, Nelson arrested Jones for DUI.

At trial Jones’ motion to supress because the officer lacked probable cause to arrest him for DUI was denied and he was convicted.  The Virginia Court of Appeals upheld the decision stating that a defendant’s refusal to submit to DUI field sobriety tests supports a finding of probable case beacuse it is evidence of his “conciousness of guilt.”

The Virginia Supreme Court, in JOnes v. Commonwealth, 2010 WL 143787, disagreed with the lower courts’ decisions.   A refusal to submit to DUI field sobriaty tests can often be based on innocent reasons.  Unlike flight, use of false names, or other deceptive acts, “a driver refusing to submit to a field sobriety test has not undertaken affirmative action to decieve or evade the police.”  The decision may be based on physical limitations, dimished ability to communicate or a simply reluctance “to submit to subjective assessments by a police officer.”  

The Court held that a DUI suspects refusal to submit to DUI field sobriety tests is not evidence of “conciousness of guilt.”  However, refusal to submit to DUI roadside tests can be considered as one factor in determining probable cause to arrest for DUI.  In this case, there was sufficient probable cause for DUI arrest.

Tagged with: • • • • • • • • • • • • •
 
Share this article
Digg Delicious Mixx StumbleUpon Digg

What does Padilla v. Kentucky mean for DUI attorneys?

On April 12, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, Snohomish County, United States Constitution, Washington State Constitution, by Scott W. Lawrence, Esq.

The recent United States Supreme Court ruling in Padilla v. Kentucky, 599 U.S. ____ (2010)  held that the Sixth Amendment requires defense counsel to provide affirmatve competent advice to a noncitizen defendnat regarding the immigration consequences of a guilty plea.  Absent such adivce a noncitizen may raise a claim of ineffective assitance of counsel.

Deportation is a criminal penalty not a collateral consequence of a conviction.  Professional standards for defense counsel require the attroney to investigate and advise noncitizens on the immigration consequences of the dispostion of a criminal case.  Furthermore, defense counsel is required to affirmatively offer advice on the consequences of conviction and cannot simply sit in silence on the issue.

Mr. Padilla was a lawful permanent resident immigrant who plead guilty to transportation of a large amount of marijuana in his tractor trailer.  As a result of his plea he faced deportation.  Mr. Padilla calimed that his counsel advised him that he didn’t have to worry because he had been in the county so long.  Mr. Padilla further stated that he relied on this statement when deciding whether or not to plead guilty.

In Mr. Padilla’s case the court found that removal as a consequence of his conviction was clear and that any failure to advise him of this falls below an objectively reasonable standard of representation.  As such, Mr. Padilla’s Sixth Amendment right to adequate counsel was violated.  

What does this mean for those of us handing DUI defense cases?  The immigration consequences in a drug conviction are much clearer than those in DUI cases.  While DUI is not currently considered grounds for deportation depends on the noncitizens curtrent status.  If the individual is in the county illegally the answer is clear.  Any conviction can be grounds for deportation.  On the other hand, if someone has any type of legal status the results of a single DUI conviction are much less clear.  There is also some concern that multiple DUI convictions can open up the possibility of deprortation as a “mental illness” or some other grounds.  

Fortunately for those of us practicing DUI law in Washngton there are some great resources.  If you are trying to determine the immigration results of any conviction you should start with the Washington Defender Association immigration resources.  There are lots of helpful printed materials to help you better understand how ICE and the federal courts approach criminal convictions.   WDA’s immigration attorneys are a great resource as well.

If you are a noncitizen charged with DUI (or any crime) it is essential that you hire a proven DUI attorney that understands immigration issues.

Tagged with: • • • • • • • • • • • • • •
 
Share this article
Digg Delicious Mixx StumbleUpon Digg

How much time does the officer need to give you to find a DUI attorney?

On April 9, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, Everett, Everett DUI Attorney, Mill Creek, Snohomish County, United States Constitution, Washington State Constitution, by Scott W. Lawrence, Esq.

A recent Minnesota Appellate case, State v. Beattie, 2009 WL 1751131, address this issue.  In this case, the Defendant arrested for DUI and taken to the Crow Wing County jail.  The Defendant was read his implied consent warnings and given a phone book to locate a DUI attorney.  Several phone calls were made and when no one answered the Defendant left messages.

After six minutes the officer demand the Defendant stop his search and submit to a breath test.  The Defendant refused.  As a result the Defendant’s license was suspended and he was charged with a “refusal” DUI under Minnesota law.  At trial, the Defendant’s motion to suppress the refusal was denied.  The Defendant agreed to a stipulated trial and was ultimatley convicted while preserving his right to appeal. 

The Court of Appeals overturned the conviction.  Under the Minnesota Constitution, a person charged with DUI has the right to counsel before choosing whether or not to submit to a breath or blood alcohol test.   This right is not unlimited and the Defendant is only entitled to a “reasonable amount of time” to locate an attorney.   The court declined to say what amounts to a reasonable amount of time.  Instead, the court should consider the totality of circumstances, including the underlying purpose for the right to counsel and whether the Defendant was continuing to make a good faith effort to reach a DUI attorney.  Whether the time of day made the search for an attorney harder, and whether more time would affect the BAC results probative value, were given as important factors for trial courts to consider

In this case, the officer interfered with the Defendant’s ongoing good faith search.  Less than one hour had elapsed since the driving and the Defendant was only given six minutes to conduct his search.  Thus, the Court found that the Defendant’s right to counsel was not vindicated and the lower court decision was reversed.

Given that a defendant in Washington also has the right to consult with an attorney before deciding whehter or not to submit to a chemical test of his breath or blood, this smae reasoning should apply in Snohomish County DUI cases, as well.

Tagged with: • • • • • • • • • • • • • • • • •
 
Share this article
Digg Delicious Mixx StumbleUpon Digg

Everett police officer charged in shooting of suspected DUI driver

On October 28, 2009, in DUI News, Snohomish County, Washington State, by Scott W. Lawrence, Esq.
Fortunately for the citizens of Mayberry, Barney only has a 6-shot revolver.

Fortunately for the citizens of Mayberry, Barney only has a 6-shot revolver.

Everett police officer Troy Meade, has been charged with manslaughter in the June 10th shooting of Niles Meservey, 51. Snohomish County Deputy Prosecutor Mark Roe indicated that the use of deadly force was not justified in this case.

Meservey was shot seven times from behind while boxed in by three cars. Witnesses indciated that Meservey posed no immediate threat or imminent danger to anyone at the time he was shot.  Mead had first used his tazer on Meservey through the open driver’s window of Meservey’s Corvette. When that didn’t deter Meservey the officer allegedly stated “Time to end this,” then opened fire on the Corvette.

Meade is an eleven year veteran of the Everett Police Department. He was involved in the shooting of another suspect in 2006. That shooting was ruled justified by Roe.

This marks thes first time a Snohomish County officer was been charged in relation to a shooting in the line of duty.

Tagged with: • • • • • •
 
Share this article
Digg Delicious Mixx StumbleUpon Digg

Go To Top »