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One Supreme Court recently articulated the “less stringent” standard for admission of SFST evidence in implied consent hearings as follows:

[I]n the criminal context, a significant number of courts have held that admission of sobriety tests, including the horizontal gaze nystagmus test, is appropriate as long as a proper foundation as to the techniques used and the officer’s training, experience, and ability to administer the test has been laid. [citations omitted]. On this authority, it is reasonable to apply a similar standard in the less stringent evidentiary environment of an administrative hearing. The field sobriety test results are the type of evidence commonly relied upon by reasonably prudent men in the conduct of their serious affairs. Wyoming's Supreme Court concludes that, if the evidence establishes the tests were properly administered by a qualified person, the foundation is sufficient for admission in an administrative hearing.

The Defendant, Mr. Smith, contends police officer is competent to testify as to field sobriety test results only if the tests were conducted with strict observance of the procedures established by the U.S. Department of Transportation, National Highway Traffic Safety Administration, Improved Sobriety Testing manual (the National Highway Traffic Safety Administration manual). [footnote omitted]. Considering that there may be other means of law enforcement training available now and in the future, for the purpose of establishing probable cause, a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it is shown that the officer has been adequately trained in the administration and assessment of those field sobriety tests and conducted them in substantial accordance with that training. [citations omitted]. Smith, supra, 11 P.3d at 935 (parentheticals in original).

Although the HGN test may be admissible once a proper foundation is established, “Courts have been deeply divided, however, as to what constitutes the proper foundation for the admissibility of the HGN test results.” State v. Ito, 978 P.2d 191, 199 (Haw. App. 1999). The Smith Court cited in numerous places to National Highway Traffic Safety Administration (NHTSA) standardized training procedures as the appropriate training that an officer must substantially comply with in order for SFST evidence to be admissible under the “less stringent” standard created for implied consent hearings. Smith, 11 P.3d 933, n. 2; 935 & n. 3; 936, n. 5; 937.

The Smith Court cited favorably to State v. Ito, 978 P.2d 191, 201 (Haw. App. 1999), and State v. O’Key, 899 P.2d 663 (Or. 1995), as examples of criminal cases suggesting that SFST evidence is scientific evidence subject to Daubert analysis. Smith, 11 P.3d at 935. In O’Key, the Court stated that:

Although the state and defendant agree that, with the necessary foundation, HGN test evidence is admissible to help establish probable cause to arrest a motorist for DUII, that inquiry differs from the use of HGN test evidence in a prosecution for DUII as evidence of guilt or innocence. O’Key, 899 P.2d at 681 n. 30.

The O’Key Court created the following procedure for admission of HGN evidence.

We now hold that HGN test evidence is admissible in a prosecution for DUII to establish that a person was under the influence of intoxicating liquor, but is not admissible under ORS 813.010(1)(a) to establish a person's BAC, i.e., that a person was driving while having a BAC of .08 percent or more. Admissibility is subject to a foundational showing that the officer who administered the test was properly qualified, that the test was administered properly, and that the test results were recorded accurately. O’Key, 899 P.2d at 670.

This foundational test was restated another way by the Ito Court.

Before HGN test results can be admitted into evidence in a particular case, however, it must be shown that (1) the officer administering the test was duly qualified to conduct the test and grade the test results, Toyomura, 80 Haw. at 26, 904 P.2d at 911; and (2) the test was performed properly in the instant case. Montalbo, 73 Haw. at 140, 828 P.2d at 1281. [citations omitted]. Ito, 978 P.2d at 210; see also, State v. Torres, 976 P.2d 20, 35 (N.M 1999)(applying same two part test for admission of HGN but refusing to take judicial notice of foundational predicate that HGN is reliable).

SFST evidence is scientific evidence, because their validity and reliability are based on scientific testing that was done and specific procedures that were created to verify their accuracy to detect alcohol consumption that go beyond the common understanding of a lay person. See, State v. Ito, 978 P.2d 191, 201-202 & n. 7 (Haw. App. 1999); United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002); State v. Meador, 674 So.2d 826, 832-33 (Fla.App. 4 Dist. 1996)(noting that the walk-and-turn and one-leg stand maneuvers are no different than other lay observations but further noting that an officer should be prevented from talking about these field sobriety maneuvers in terms of being a “test” or of a “pass[ing]” or “fail[ing]” score or “points”, because these terms tend to enhance the significance of the officer’s testimony and create the possibility of prejudice by encouraging a fact finder to give the testimony too much weight), review denied, Meador v. State, 686 So.2d 580 (Fla. 1996); State v. Klawitter, 518 N.W.2d 577, 585-86 (Minn. 1994)(holding that HGN is admissible upon a proper foundation but further noting that calling an officer an “expert” based on their academy training is potentially prejudicial to the extent that a juror would place undue weight on the testimony and further noting that a cautionary instruction should be given when requested concerning weight to be accorded the HGN test)(citing Stephanie E. Busloff, Can Your Eyes be Used Against You? The Use of the Horizontal Gaze Nystagmus Test in the Courtroom, 84 J.Crim.L. & Criminology 203, 237 (1993) for example of a cautionary HGN instruction); Zimmerman v. State, 693 A.2d 311, 314 (Del. 1997)(recognizing that potential to misdiagnose gaze nystagmus and arresting officer’s potential bias to support his arrest can cause jury to give HGN evidence undue weight if a proper foundation is not established for the officer’s testimony). The concerns of the Zimmerman Court are of particular importance in the present appeal, given Trooper Peech’s testimony that he believes detainees and their attorneys use “excuses” for alleged poor performance on field sobriety maneuvers. [M.H.T. January 3, 2006 at pp. 16, 34].

Simply stated, it was improper for the trial court to allow SFST evidence in without any kind of hearing and leaving it for the jury to place whatever weight they thought the evidence was deserving. Although Ms. Walters claims that she is entitled to a Daubert Hearing, there should be no question that even if this Court were to find that a Daubert hearing is not required, some type of evidentiary hearing must be held to determine if the officer is properly trained and if he complied with his training in the administration and scoring of the SFST evidence. Ms. Walters asserts that at a minimum a trial court must find that the officer is properly trained and performed SFSTs in substantial compliance with that training before such evidence can be presented to a jury for them to weigh the credibility of the officer in his conducting of those maneuvers, as expressed in the cases cited by the Wyoming Supreme Court in Smith. Those cases include: State v. Ito, 90 Hawai‘i 225, 978 P.2d 191, 201 (1999); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998); Zimmerman v. State, 693 A.2d 311 (Del.Super.Ct.1997); State v. Taylor, 694 A.2d 907 (Me.1997); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La.Ct.App.), writ denied, 568 So.2d 1077 (La.1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988).

Several courts are now requiring either a Daubert or Frye hearing prior to admission of SFSTs. Those cases include: People v. McKown, 226 Ill.2d 245, 875 N.E.2d 1029, 1037-42 (Ill. 2007)(requiring Frye hearing for admission of HGN), United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002); State v. Witte, 836 P.2d 1110 (Kan 1992); Malone v. City of Silverhill, 575 So.2d 106 (Ala. 1990); State v. Superior Court (Blake), 718 P.2d 171, 181 (Ariz. 1986) (seminal case on the admissibility of HGN); State v. Russo, 773 A. 2d 965 (Conn. App. Ct. 2001)(establishing proper foundation must be established in accordance with Daubert prior to the introduction of HGN test results). Young v. City of Brookhaven, 693 So.2d 1355, 1360-61 (Miss. 1997); State v. Torres, 976 P.2d 20 (N.M. 1999); State v. Lasworth, 42 P.3d 844 (Ct. App. N M. 2001); State v. Helms, 504 S.E.2d 293 (N.C. 1998); Commonwealth v. Moore, 635 A.2d 625, 629 (Pa. Super. Ct. 1993); State v. Murphy, 953 S.W.2d 200 (Tenn. 1997).

As the above cases show, even those Courts that do not require a Daubert or Frye hearing, still require the making of findings of fact and conclusions of law that the officer is properly trained and that he performed the maneuvers in conformance with his training. Where the trial court makes no such findings and simply leaves it for the jury to weigh, the trial court has committed error that is difficult to quantify. However, allowing an officer to indicate that in his opinion the person was intoxicated because they “miserably failed” field sobriety maneuvers, is the same as allowing an expert to testify about an ultimate issue of fact for the jury to resolve. The impact is obviously devastating and was part of the justification for requiring such hearings in United States v. Horn, 185 F.Supp.2d 530, 558-60 (D. MD 2002)(citing to numerous state court cases including Eugene Smith III v. State ex rel. Wyoming Department of Transportation, 11 P.3d 931 (Wyo. 2000); State v. Meador, 674 So.2d 826, 832-33 (Fla.App. 4 Dist. 1996) review denied, Meador v. State, 686 So.2d 580 (Fla. 1996).

ARGUMENT II
The Trial Court improperly admitted the Alco-Sensor Result.
SUMMARY OF ARGUMENT TWO
On the day of the jury trial, the trial court reversed itself and ruled that it would allow the admission of Ms. Walters’ Alco-Sensor result. The result was not admissible under Wyoming Statute § 31-6-105(a), because it was not a certified breath testing instrument. The only thing the Alco-Sensor can be used for is to show presence of alcohol and it is not reliable to quantify a BAC. Because Ms. Walters was accused of having a BAC above the legal limit and the Alco-Sensor result was above the legal limit, it was improper for the trial court to allow this evidence to be presented to the jury. As will be noted, where the trial court also allows inadmissible SFST into evidence and allows an officer to testify that the accused allegedly “miserably failed” those SFSTs, it is not harmless error to admit a PBT result.

STANDARD OF REVIEW FOR ARGUMENT II
There can be no question that the Alco-Sensor is scientific evidence. The United States Eighth Circuit Court of Appeals applied the following standard of review to determine whether portable breath test (PBT), like the Alco-Sensor, is admissible.

In United States v. Black Cloud, 101 F.3d 1258 (8th Cir.1996), this court set forth a two part test to determine when scientific testimony is admissible. First, the district court must “determine whether the testimony is based on reliable scientific technique, and whether it will assist the jury.” Black Cloud, 101 F.3d at 1261 (citation omitted). In its determination, the district court should consider the following factors when assessing the reliability of a scientific technique: “(1) whether the technique can be and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error for the technique and the existence and maintenance of standards for controlling the technique's operation; and (4) whether the technique is generally accepted in the scientific community.” Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Second, even if the district court concludes that the expert testimony is admissible, it “may exclude the testimony if the testimony has an unfairly prejudicial effect that substantially outweighs its probative value.” Id. (citations omitted).

U.S. v. Iron Cloud, 171 F.3d 587, 590 (8th Cir. 1999).

ARGUMENT II
As noted in the course of proceedings above, on the day of the jury trial, the trial court notified the parties at a pretrial motion hearing that it was reversing itself and denying the Motion to Suppress Alco-Sensor Result. [M.H.T., February 28, 2006, pp. 5-6].

In Allen v. State, 2002 WY 48, ¶¶ 21-25, 43 P.3d 551, 560-62 (Wyo. 2002), the Wyoming Supreme Court reaffirmed that the implied consent statutes are the sole means of requiring chemical tests under Wyoming Statute § 31-5-233, unless the State can show that the injuries are of such a nature that there is a potential for a vehicular homicide charge. Wyoming Statute 31-5-233(k) provides that “Chemical analysis of a person’s blood, breath or urine to determine alcohol concentration or controlled substance content shall be performed in accordance with W.S. 31-6-105(a).” Wyoming Statute § 31-6-105(a) provides that:

Chemical analysis of a person’s blood, breath or urine to be considered valid under this section, shall be performed according to methods approved by the department of health and by an individual possessing a valid permit to conduct the analysis. Permits shall be issued by the department of health for this purpose. The Department of Health may promulgate and approve satisfactory methods in order to ascertain the qualifications of individuals permitted to conduct the analysis and shall issue to qualified individuals permits which are subject to termination or revocation by the Department of Health.

In accordance with Wyoming Statute § 31-6-105(a), the Department of Health has created rules and regulations for the admission of chemical test results for use in DWUI cases.

In Jones v. State ex rel. Wyoming Department of Transportation, 991 P.2d 1251, 1255 (Wyo. 1999), the Wyoming Supreme Court cited favorably to the case of State v. McCaslin, 894 S.W.2d 310, 311-12 (Tenn. App. 1994), concerning the issue of proper foundation for introduction of a breath test result. When the State of Wyoming attempts to admit chemical test evidence under Wyoming Statute § 31-6-105(a), introduction of such evidence is referred to as admission under a “statutory predicate” versus following a more strenuous “traditional predicate” for admission of test results under general rules of evidence. State v. Deloit, 964 S.W.2d 909, 911-15 (Tenn.Crim.App. 1997); See also Mayo v. City of Madison, 652 So.2d 201, 207-09 (Ala. 1994); State v. Baue, 607 N.W.2d 191, 198-199 (Neb. 2000) (State’s inability to establish statutory predicate for admission of chemical test required reversal of conviction). As a result of Wyoming’s regulatory framework, the State must prove that they have complied with the chemical testing Rules before Ms. Walters’ chemical test results can be admitted into evidence. Polk v. Dept. of Public Safety, 927 P.2d 55, 56-7 (Okl.App. 1996) (testimony of witness concerning compliance with statutory procedure of admitting chemical test result requires witness to go through actual copy of procedure to prove that the witness complied with the procedures); McDaniel v. State, 706 So.2d 1305, 1307 (Ala.Crim.App. 1997) (state must strictly comply with rules and regulations concerning admission of chemical tests under statutory predicate); People v. Morris, 703 N.E.2d 923, 925-26 (Ill.App. 5 Dist. 1998) (provision of rules and regulations concerning admission of chemical test in DWUI cases are mandatory and failure to comply with the rules requires suppression of test result); State v. Bosio, 27 P.3d 636, 638-39 (Wash.App. Div. 3 2001) (Failure to strictly comply with regulations concerning preservation of blood test required suppression); State v. Garrett, 910 P.2d 552, 553-54 (Wash. App. Div. 3 1996). One Court has required suppression of a chemical test that was taken one month outside of the statutory requirement for calibrating a chemical test. State v. Frickey, 136 P.2d 558, 562 (Mont. 2006).

In the second paragraph of Ms. Walters’ Motion to Suppress Alco-Sensor Result [R.O.A. at p. 20 (which was attached as Exhibit 3 to Ms. Walters’ Petition for Writ of Review)], Ms. Walters’ counsel noted to the trial court that:

The alco-censor test used in this case has not been approved by the Department of Health for chemical testing purposes pursuant to Wyoming Statute § 31-6-105(a) and therefore is not an admissible chemical test. “[T]he overwhelming weight of authority is that the PBT is not reliable as anything more than a screen test to be used for probable cause.” United States v. Winkle, 2002 U.S. Dist. LEXIS 23643 [* 3] (D. Kan 2002)(citing United States v. Iron Cloud, 171 F.3d 587, 590-91 n. 5 (8th Cir. 1999)).

When Trooper Peech was specifically asked if the Alco-Sensor he used to test Ms. Walters’ breath was a certified test that would be admissible for the actual alcohol level, he replied: “No. It’s a preliminary test that we use on the side of the road. Absolutely not, no.” [M.H.T. January 3, 2006, at p. 36].

Because the chemical test in the current case was not admissible, Ms. Walters should be granted the right to a new trial with instruction that the Alco-Sensor test cannot be used to show Ms. Walters’ BAC level and that it can only be used for establishing presence of alcohol for a probable cause hearing. As will be noted in the final argument below, where an officer relies on an inadmissible portable breath test and also on SFST’s that lack guarantees of scientific reliability, it is proper for a trial court to determine that there was no probable cause for a DWUI arrest. York v. Director of Revenue, 186 S.W.3d 267 (Mo. 2006)(En Banc)(finding that it was proper to dismiss case for lack of probable cause, where officer relied upon a PBT and SFSTs that were not performed correctly and where the only other evidence to support a DWUI was an admission of drinking and glassy blood shot eyes).

Furthermore, as noted above, the SFSTs should not have been admitted without proof that the arresting officer is qualified to do these maneuvers and that he did them in compliance with his training. The trial court did not make any determination of whether the officer was properly trained to perform SFSTs or whether the officer substantially complied with his training. Because there wasn’t an evidentiary hearing to create findings of facts and conclusions of law to support the arresting officers right to testify that in his opinion Ms. Walters was drunk as a result of her alleged “miserable” performance on SFSTs, this ruling by the Circuit Court is particularly troublesome for Ms. Walters, given the District Court’s application of the “harmless error” rule to the admission of Ms. Walters’ PBT result. In State v. Helms, 504 S.E.2d 293 (N.C. 1998), the North Carolina Supreme Court found that it was not harmless error to admit PBT and SFST evidence. “[I]n light of [the evidence presented] and the heightened credence juries tend to give scientific evidence, there is a reasonable possibility that had evidence of the HGN test results not been erroneously admitted a different outcome would have been reached at trial.” Helms, 504 S.E.2d at 296.

ARGUMENT III
Ms. Walters was illegally detained and arrested in violation of her state and federal rights to be free from unreasonable searches and seizures requiring dismissal of her DWUI Charge.
SUMMARY OF ARGUMENT III
Ms. Walters contends that it does not matter whether the fact finder believes that Trooper Peech believed he saw Ms. Walters driving a vehicle with no front plate prior to stopping her. Although this would allow him to initiate the traffic stop, because traffic stops are non-consensual investigatory detentions that must be justified at their inception and limited in scope and duration to the basis for the stop, Ms. Walters contends that Trooper Peech had an affirmative duty to take what would amount to about five seconds to look at the front of Ms. Walters’ vehicle immediately before telling Ms. Walters the basis for the stop. Furthermore, where the officer relied on inadmissible SFST and Alco-Sensor evidence as his probable cause to arrest, this probable cause finding is suspect, and the matter should be remanded for a new hearing relying only on admissible evidence.

STANDARD OF REVIEW FOR ARGUMENT III
A District Court is bound by the same Rules of Appellate Procedure as the Wyoming Supreme Court, when it uses its powers of appellate review over the decisions from lower courts of limited jurisdiction. Hysong v. City of Laramie, 808 P.2d 199, 202 (Wyo. 1991). When reviewing a trial court’s rulings on evidentiary matters, the District Court will not disturb them unless the Trial court clearly abused its discretion. Brown v. State, 944 P.2d 1168, 1170 (Wyo. 1997). Findings of fact, such as credibility of witnesses, are accorded deference unless clearly erroneous. Id. However, where issues of law are involved concerning general interpretation and application of the Wyoming and United States Constitution, these questions are reviewed de novo. O’Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo. 2005); Buckles v. State, 998 P.2d 927, 929 (Wyo. 2000); Gehnert v. State, 956 P.2d 359, 361 (Wyo. 1998); Sidwell v. State, 964 P.2d 416, 418 (Wyo. 1997). The Wyoming Supreme Court has recognized that, “[W]e have always held that ultimately whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo.” Cordova v. State, 2001 WY 96, ¶ 10, 33 P.3d 142, 148 (Wyo. 2001); see also O’Boyle, supra. With these standards in mind, Ms. Walters presents the following argument in support of her claim that she was illegally seized.

ARGUMENT III
The first place to start a review of Ms. Walters’ claim that she was illegally seized in violation of the Fourth Amendment of the United States Constitution and Article 1, § 4 of the Wyoming Constitution is with the case of Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992). In that case, the Wyoming Supreme Court recognized three legal realities of application of the Fourth Amendment with DWUI investigations: (1) warrantless detentions are per se unreasonable; (2) temporary detentions require articulable suspicion and must be limited in scope and duration “[e]mploy[ing] ‘the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time;” and, (3) it is legal to drink and drive, as long as the person is not above the legal limit and is capable of safely driving, so the odor of alcohol alone does not create probable cause for an arrest. Keehn, 834 P.2d at 116. As Ms. Walters will argue further below, the least intrusive means of verify the officer’s belief that Ms. Walters was driving without a front license plate was to actually check the plate at the time he initiated contact with Ms. Walters. If Ms. Walters’ vehicle did not have a front plate, then he could proceed with investigating that equipment violation. If it had a front plate, he would have had to let her go.

The reasoning of Keehn was later followed in Allen v. State, 2002 WY 48 ¶ 22, 43 P.3d 551, 559 (Wyo. 2002)(citing Olson v. State, 698 P.2d 107, 113 (Wyo. 1985) & Chastain v. State, 594 P.2d 458, 461 (Wyo. 1979)), where the Court recognized that the implied consent statute provides the exclusive means for obtaining a chemical test in DWUI cases and that the Fourth Amendment prevents intrusive searches and seizures that lack probable cause for an arrest or articulable suspicion of a crime for a detention.

Where, as here, the officer initiates a traffic stop, the Wyoming Supreme Court has also consistently reiterated the fact that traffic stops are investigatory detentions and an officer must prove that the detention was (1) justified at its inception; and (2) the officer’s actions during the detention were reasonably related in scope and duration to the circumstances that justified the detention in the first instance. O’Boyle v. State , 2005 WY 83, ¶ 46, 117 P.3d 401, 414 (Wyo. 2005)(finding that Article 1, § 4 of Wyoming Constitution provided greater protections against unreasonable searches and seizures than the federal constitution and leaving the door open to apply the new standard to pretext stops); Campbell v. State, 2004 WY 106, ¶11, 97 P.3d 781, 784 (Wyo. 2004); Barch v. State, 2004 WY 79, ¶¶ 8-9, 92 P.3d 828, 832 (Wyo. 2004). Furthermore, in its discussion of what an officer may do during a Terry type stop, the Wyoming Supreme Court consistently recognizes that officers are limited in the questions they may ask a detainee. See generally, O’Boyle v. State, 2005 WY 83, ¶49, 117 P.3d 401, 405 (Wyo. 2005) (“Absent valid consent, a reasonable suspicion of other unlawful activity or reasonable suspicion that a detainee is armed, an officer may not expand an investigative detention beyond the scope of the stop, ask questions unrelated to the stop or ‘embark on a fishing expedition in the hope that something will turn up.’” ); Campbell v. State, 2004 WY 106, ¶12, 97 P.3d 781, 785 (Wyo. 2004) (recognizing that officer generally can’t ask questions unrelated to the stop without reasonable suspicion of other criminal activity).

“Generally, the driver must be allowed to proceed without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle.” Burgos-Seperos v. State, 969 P.2d 1131, 1133 (Wyo. 1998)(citing United States v. Elliott, 107 F.3d 810, 813 (10th Cir 1997)); see also, Damato v. State, 2003 WY 13 ¶ 13, 64 P.3d 700, 705 (Wyo. 2003). The Tenth Circuit has created a bright line rule, which recognizes that an investigatory detention does not end or turn consensual until such time as a detainee has been given his driver’s license back. U.S. v. Mendez, 118 F.3d 1426, 1430 (10th Cir. 1997)(“an officer must return a driver’s documentation before the detention can end.”); U.S. v. Elliot, 107 F.3d 810, 814 (10th Cir. 1997)(“Since Werking, we have consistently concluded that an officer must return a driver’s documentation before a detention can end.”); U.S. v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996) (for encounter to become consensual with traffic stop, officer needs to return license and registration and inform person that they are free to go); U.S. v. Lambert, 46 F.3d 1064, 1068-1069 (10th Cir. 1995)(retention of driver’s license during questioning renders encounter non-consensual).

Besides the case of Keehn, supra, the following cases have also determined that the odor of alcohol alone does not create probable cause for a DUI arrest. State v. Gray, 267 Ga. App. 753, 755 600 S.E.2d 626, 628 (2004)(“[p]resence of alcohol alone in a defendant’s body, does not support an inference of impaired driving.”)(quoting Baird v. State, 260 Ga. App. 661, 663 (1) (580 S.E.2d 650)(2003)); Saucier v. State, 1994 Ak. 24, 869 P.2d 483, 486 (1994)(citing State v. Taylor, 444 N.E.2d 481, 482 (Ohio App, 1981); People v. Roybal, 655 P. 2d 410, 413 (Colo. 1982); City of Hutchinson v. Davenport, 54 P.3d 532, 535 (Kan.App.,2002); Federoff v. Rutledge, 332 S.E.2d 855, 859, n. 1 (W.Va.,1985). York v. Director of Revenue, 186 S.W.3d 267 (Mo. 2006)(En Banc)(where officer does not administer PBT and SFSTs correctly, court could properly dismiss the case for lack of probable cause where the only other evidence is admission of drinking and glassy blood shot eyes).

A growing number of courts are requiring the arresting officer to actually articulate the specific facts justifying the violation. For example, Rowe v. State, 769 A.2d 879, 886-89 (Md. App. 2001). The Court cited to numerous cases for the proposition that crossing a fog or center line at a time there is no danger to other traffic does not create articulable facts sufficient to justify an investigatory detention. Other Courts are also finding that the facts presented by the prosecution were not sufficient to prove a violation of a traffic ordinance. See generally, State v. Milotte, 897 A.2d 683 (Conn.App. 2006)(claim by officer that defendant trying to avoid him, did not create articulable suspicion to stop and DUI charge had to be dismissed); Keeling v. State, 929 So.2d 1169 (Fla. App., 2 Dist. 2006)(Officer could not make contact with person that he did not see commit crime based on allegation person was involved in an altercation. DUI dismissed under fruit of poisonous tree doctrine); United States v. Billups, 442 F.Supp.2d 697 (D.Minn. 2006)(weaving within lane on windy day does not create articulable suspicion to stop); United States v. Gregory, 79 F.3d 973, 978 (10th Cir 1996)(single incident of cross highway dividing line did not violate law and did not create articulable suspicion of crime); State v. Livingston, 75 P.3d 1103, 1106-07 (Ariz App. Div. 2 2003)(recognizing that terms “nearly as practicable” expressed legislative attempt to prevent penalizing people for minor deviations outside marked lines of travel and citing to numerous cases in support of proposition), review denied, State v. Livingston, 2004 Ariz. Lexis 46 (Ariz. Ap. 19, 2004); State v. Lafferty, 967 P.2d 363, 365-66 (Mont. 1998)(no specific facts to support officer’s claim that he had observed a traffic violation where all he saw was person cross over fog line twice and onto it once and person was not a danger to other traffic at the time) Grindeland v. State, 32 P.3d 767 (Mont. 2001)(no specific facts to support officer’s claim that he had observed a traffic violation); State v. Huddleston, 164 S.W.3d 711, 715-16 (Tex App. Austin 2005)(Officer lacked probable cause to stop vehicle where all he observed was a vehicle cross fog line several times and the vehicle was not a danger to other traffic) Bellard v. State, 101 S.W.3d 594, 600 (Tex.App. Waco 2003)(weaving outside of lane is only illegal where it causes other traffic to take evasive action to miss vehicle); State v. Tarvin, 972 S.W.2d 910, 911 (Tex.App. Waco 1998)(recognizing that driving a car, by its very nature, is controlled weaving and such weaving onto the marking lines of a road only becomes illegal if a person poses a danger to traffic.); State v. Kaufman, 59 P.3d 1166 (Mont. 2002)(person must actually violate wording of traffic statute before officer has articulable suspicion to stop); State v. Lacasella, 60 P.3d 975 (Mont. 2002)(facts did not support violation of traffic law so evidence had to be suppressed and case dismissed); State v. Fisher, 60 P.3d 1004 (Mont. 2002)(police did not have articulable suspicion sufficient to stop vehicle, where he only thought tags might be expired but was not sure).

As Ms. Walters stated to the trial court, she believes the analysis in State v. Lacasella, 60 P.3d 975 (Mont. 2002) provides the proper mechanism for reviewing the particular statute in this case, as it dealt with the exact same issue of the conspicuousness of a front plate as a basis to stop someone under the Fourth Amendment. Wyoming Statute § 31-5-205 covers the requirement to have a front license plate.

Finally, an Officer is not allowed to attempt to boot strap articulable suspicion with evidence acquired after an arrest. See generally, Campbell, 2004 WY 106, ¶14, 97 P.3d at 785; Mickelson v. State, 906 P.2d 1020, 1023-24 (Wyo. 1995)(consent cannot be based on post hoc colloquy with defendant where stop is not justified at its inception)(citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Mickelson v. State, 886 P.2d 247, 250 (Wyo. 1994) (post hoc rationalizations cannot justify stop where officer lacks suspicion of illegal activity prior to detaining and questioning a defendant); Buffkins v. City of Omaha, Neb., 922 F.2d 465, 469 (8th Cir. 1990)(“Reasonable suspicion must be formed before the seizure occurs.”). The Wyoming Supreme Court has recognized that protection of individual liberties can require difficult choices.

In a society burdened by crime, the protection of individual liberties requires difficult choices. All of us want to be able to freely walk the streets of our cities and towns. While we cannot and should not tolerate crime and lawlessness, we equally cannot tolerate the abrogation of basic liberties. Permitting a seizure, without reasonable suspicion of criminal behavior, to complete a computerized identification check of a police “contact” represents an unreasonable intrusion on basic liberties. Wilson v. State, 874 P.2d 215, 225 (Wyo. 1994)(emphasis added).

The Wilson Court expressly cautioned against the use of after the fact rationalizations to support an illegal detention:

Reasonable suspicion requires the presence of specific and articulable facts and rational inferences on the part of the officer conducting the seizure. (Citations omitted). The Constitution does not permit this court, or any court, to construct after the fact justification of police conduct. The reason is sound. Our constitutional guarantees would mean little if any search or seizure which produced evidence of criminal conduct was justified post hoc. The basic constitutional guarantee of freedom from unreasonable searches and seizures operates from a simple premise. Prior to the issuance of a warrant, the police must demonstrate probable cause. Similarly, prior to conducting an investigatory stop, the police must possess reasonable suspicions of criminal behavior. In other words, the officer’s action must be ‘justified at its inception.’ (Citations omitted).” Wilson, 874 P.2d at 225 (emphasis added).

San Diego DUI attorney - new case

Filed 4/28/08 P. v. Duke CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

JEFFREY WEBER DUKE,

Defendant and Appellant.
C055032
(Super. Ct. No. PO5CRF0638)


Twenty-two-year-old defendant Jeffrey Weber Duke pled no contest to driving with a blood-alcohol level of .08 percent or greater and causing injury (Veh. Code, § 23153, subd. (b)) and admitted the allegation that he personally inflicted great bodily injury on Jennifer C. in the commission of that felony (Pen. Code, § 12022.7, subd. (a)). The court denied probation and sentenced defendant to four years and four months in prison: the lower term of one year and four months for the Vehicle Code violation, and an additional three years for the great bodily injury enhancement. The court dismissed the remaining charges and special allegations at sentencing.

The sole issue on appeal is whether the court abused its discretion in denying defendant probation. Concluding that there was no abuse of discretion, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2005, at approximately 10:45 p.m., California Highway Patrol Officer Tom Flahavan was dispatched to the scene of a motor vehicle accident in the vicinity of Highway 193 and Penobscot Road in El Dorado County. Flahavan’s investigation revealed that defendant’s Toyota pickup truck crossed the center line and sideswiped the victims’ Ford Taurus which was approaching from the opposite direction. The collision caused the Taurus to hit an embankment and roll over.

There were five occupants in the Taurus at the time of the collision. Four of the five occupants sustained mild to moderate injuries. The fifth occupant, Jennifer C., suffered a broken neck and injuries to her skull, face and shoulder. She is unable to close her left eye. Jennifer C. has undergone multiple surgeries since the accident.

Officer Flahavan spoke with defendant at the scene. He acknowledged that he was involved in the collision and was cooperative in responding to Flahavan’s questions. Defendant stated that he had fallen asleep and suddenly found himself in the left lane. Flahavan observed that defendant had symptoms of intoxication, including alcohol on his breath, slurred speech, and red, watery eyes. Field sobriety tests confirmed signs of impairment and Flahavan arrested defendant. At that juncture, defendant agreed to take a chemical test at the scene which showed that he had a blood-alcohol level of .14 and .15 percent.

Defendant explained in his interview with the probation officer, and in a statement attached to the probation report, that he and a friend had consumed a “‘couple pitchers of beer’” over a three-hour period the night of the accident. After hanging out with his friend for another hour, defendant decided to drive home from Rocklin. He repeatedly expressed remorse for the injuries he caused the victim.

At sentencing, the court acknowledged that it had read the probation report, the report of defendant’s correctional consultant, and defendant’s mitigation statement -- all of which recommended probation. In addition to argument by counsel, the court heard a statement by Jennifer C., which consisted of a poem, and a lengthy statement by her father, which described Jennifer’s injuries, treatment and prognosis. Jennifer sustained a broken neck and lacerated spleen; her scalp was ripped away from her skull and one of her eyelids was torn off.

At the time of sentencing, Jennifer had undergone six surgeries on her eye and two surgeries on her neck. Due to the seriousness of her injuries, her rehabilitation included having to learn to walk and talk again.

During the sentencing hearing, defendant clarified that in addition to the prior conviction for trespassing included in the probation report, for which he received probation, he was cited in February 2005 for possessing more than an ounce of marijuana while driving a motor vehicle. (Veh. Code, § 23222, subd. (b).) Defendant explained that one of his passengers had the marijuana.

The court stated that it had agonized over the case, but “certainly not anything to the degree that the [victim’s] family have, but these are very difficult decisions, and believe me, I see both sides here.” The court addressed the defendant: “You have a lot in your background that shows you are a good person and a good citizen, and I know any sentence I impose here is going to have an adverse effect on your life, but compared to those adverse effects against what Jennifer [C.] has suffered, is suffering, and probably will suffer for the rest of her life, those don’t balance up, in any degree, sense or meaning. [¶] She’s going to have to live with your irresponsibility her whole life, and it’s a shame. . . .” Before denying probation, the court indicated that it had considered the factors set forth in California Rules of Court, rules 4.414 and 4.413, and found rule 4.414(a)(4) to be “the controlling factor here, that you inflicted the severest kind of physical and emotional injury on Jennifer [C.], and none of the factors that favor probation here outweigh that one factor on probation, in my view.” The court also stated: “I believe that you are sincerely remorseful for all that happened here, but that’s remorse too little, too late when it changes another person’s life, Mr. Duke. You can’t compensate with remorse for the horrible physical tragedy that you inflict on another person. I’m sure you realize that.” Based on the mitigating factors, the court selected the low term of 16 months for defendant’s violation of Vehicle section 23153, subdivision (b), then added the three-year enhancement.

Following sentencing, the court wrote the California Department of Corrections and Rehabilitation (CDCR), urging the correctional authorities to place defendant in a conservation camp or other minimal security prison. The Court wrote: “Defendant is only 20 years old, has no significant prior criminal record, is completely remorseful, and has construction skills that could be put to good use in prison. He also is slight of build and young looking which could put him at risk of physical harm if placed with hardened criminals.”

DISCUSSION

The parties agree that the trial court has broad discretion to grant or deny probation, and we as the reviewing court will not set aside a decision to deny probation absent a clear showing that the trial court abused its discretion. (People v. Warner (1978) 20 Cal.3d 678, 683 (Warner).) A court abuses its discretion when its order “‘exceeds the bounds of reason, all of the circumstances being considered.’” (Ibid.) The burden is on the defendant to clearly show that the denial of probation was irrational or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

Defendant argues that the court’s ruling “exceeds the bounds of reason, all . . . circumstances being considered.” (Warner, supra, 20 Cal.3d at p. 683.) He maintains that it was unreasonable for the court to conclude that defendant posed a danger to others “when there is no indication in the record that [defendant] had continued to engage in such conduct or had driven a car after drinking alcohol.” Defendant also contends that the court ignored the fact that incarceration would hamper defendant’s ability to compensate Jennifer C. for her injuries. We conclude there was no abuse of discretion.

Defendant argues on appeal that the court based its decision to deny probation “solely on the extent of injuries inflicted” on Jennifer C. (Italics added.) Contrary to defendant’s argument, the record shows that the court carefully considered -- in the court’s words, “agonized over” -- all the relevant factors before making its ruling. This is how a court properly exercises its discretion.

Defendant maintains that the court minimized or ignored two factors -- whether defendant was a danger to others and whether he could pay restitution if sentenced to prison. However, neither the parties, probation, nor the correctional consultant considered those factors important enough to raise expressly in their written recommendations or oral argument at the sentencing hearing. In any event, the court is not required to explain its reasons for rejecting mitigating factors. (People v. Thompson (1982) 138 Cal.App.3d 123, 127.) Other mitigating factors were clearly raised, and the court responded to them by sentencing defendant to the low term and urging the CDCR to place defendant in a conservation camp or other minimal security prison.

“[T]he physical and/or emotional injuries and the monetary losses inflicted on the victim and/or the victim’s family should be considered by a trial court in all cases in deciding whether to grant or deny probation.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1317.) Here, in the exercise of its discretion, the court found this to be the most important factor -- that defendant inflicted “the severest kind of physical and emotional injury on Jennifer [C.]” (Cal. Rules of Court, rule 4.414(a)(4).) Given the court’s balancing of this factor against the other factors, we cannot say that its denial of probation was “irrational or arbitrary” in the circumstances of this case. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS , Acting P.J.

MORRISON , J.

San Diego California DUI lawyer news

The fatal crash Wednesday near Crockett appears to have been caused by a reckless and possibly intoxicated driver, California DUI lawyers said.

The crash was reported at about 8:05 a.m. on San Pablo Avenue near Cummings Skyway in unincorporated Contra Costa County.

Two people were airlifted to John Muir Medical Center with major injuries and a third was pronounced dead at the scene, California DUI lawyers report.

According to witness reports, a red 1988 Acura Legend was seen driving recklessly on westbound San Pablo Avenue.

A witness told officers that the Acura was weaving in and out of traffic. It passed the witness and then, for an unknown reason, crossed the double yellow lines and entered the eastbound lanes, where it was struck head-on by a 1985 Peterbilt big rig hauling two unloaded trailers, California DUI lawyers said.

The impact caused the big rig to jackknife and the Acura to spin out of control, ejecting a female passenger, California DUI lawyers said.

The driver of the big rig, 44-year-old Pittsburg resident Kishor Kumar, was airlifted to John Muir Medical Center in Walnut Creek with major injuries. He was the only person in the big rig.

The passenger who was ejected from the Acura, 44-year-old Richmond resident Geraldine Scilingo, was also airlifted to John Muir Medical Center with major injuries.

The driver of the Acura, a 59-year-old Antioch man, was pronounced dead at the scene, California DUI attorneys said.

Neither the driver nor the passenger in the Acura appeared to have been wearing seatbelts and evidence collected at the scene suggested that the driver of the Acura may have been intoxicated.

San Diego DUI attorney news

Filed 4/28/08 P. v. Gonzalez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

MARIO SANDOVAL GONZALEZ,

Defendant and Appellant.
C055447
(Super. Ct. No. CRF062459)


A jury convicted defendant Mario Sandoval Gonzalez of driving under the influence (DUI) (Veh. Code, §§ 23152, subd. (a)) and driving with a blood alcohol level of .08 percent or above (Veh. Code, §§ 23152, subd. (a)), both having occurred within 10 years of a previous felony DUI conviction (Veh. Code, § 23550.5), and driving on a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)). After the jury sustained allegations of two prior prison terms (Pen. Code, § 667.5, subd. (b)) and driving with a blood alcohol level of .15 percent or above (Veh. Code, § 23578), the court sentenced defendant to a five-year term.

On appeal, defendant contends the trial court erred in failing to grant a mistrial after he was seen in restraints by jurors, his upper term sentences are in error, and the abstract refers to a fine never imposed by the court. We modify the judgment to include two $20 security fees pursuant to Penal Code section 1465.8, order a correction to the abstract, and otherwise affirm the judgment.

Facts and Proceedings

Shortly after 2:00 a.m., March 26, 2006, Woodland Police Sergeant Stephen Guthrie saw a red Volkswagen drive into a dead-end alley with its headlights off. The driver, defendant, had a “thousand-yard stare,” a look “very intoxicated” people get.

Defendant’s car did a three point turn, left the alley, and parked. Exiting the Volkswagen, defendant stumbled towards an Orchard Supply Store.

Sergeant Guthrie approached defendant and asked to speak to him. Defendant responded in Spanish, so Sergeant Guthrie summoned a Spanish speaking officer to the location. Defendant failed two field sobriety tests, and was arrested for driving under the influence of alcohol. Numerous unopened cans of beer were found in defendant’s car and an unopened can of beer was found in one of his pockets.

Defendant’s blood alcohol level was .25 percent. The parties stipulated defendant knew he had a suspended or revoked driver’s license.

Discussion

I

Juror Observation of Defendant’s Restraints

Defendant contends the trial court should have granted his motion for mistrial based upon jurors seeing him in restraints. We disagree.

After the defense rested, the court took stipulations, excused the jury for a break, admitted defense exhibits, and ordered a 10 minute break. After the break, outside of the jury’s presence, defense counsel informed the court he believed jurors saw defendant in shackles while he was being transported to the restroom. The court asked counsel if he wanted the cautionary instruction for defendants who are in custody, CALCRIM No. 204, but counsel moved for a mistrial.

Counsel thought at least two jurors saw defendant in restraints. The bailiff knew defendant was being transported to the restroom, and while he could not say if anyone was in the hallway, most of the jurors followed him to another room.

Counsel observed a former juror on a prospective panel was in the courtroom and “was in the hallway at the time.” The former juror said he could not recall any other jurors being in the hall. He had followed the jurors as they were being led by the bailiff into the side room, and went back into the hall after realizing he did not belong. The former juror saw defendant in the hall as he was returning to the courtroom.

Defense counsel told the court his client was transported before the bailiff asked the jurors to move and he saw defendant in the hallway about three minutes after the jurors had gone into the other room. The former juror then related identifying characteristics of two jurors with whom he spoke while in the hallway.

The bailiff told the court he moved the jurors before he knew defendant had to use the bathroom. The transport officer, when asked if he saw any jurors as defendant was being moved, told the court his whole focus was on defendant and none of the jurors stood out to him.

The court ruled it was “possible” one of the jurors could have seen defendant in handcuffs, but any viewing was accidental. Defense counsel argued the cautionary instruction would not cure the prejudice to defendant and renewed his mistrial motion. The court denied the motion and instructed the jury with CALCRIM No. 204.

Defendant argues the court abused its discretion in denying the mistrial motion because seeing the restraints kept the jury from viewing him fairly. We disagree.

“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) Whether a particular incident is incurably prejudicial is by nature a speculative matter, so the trial court is vested with considerable discretion in deciding mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.)

Defendant’s claim does not raise the issue of whether he was improperly shackled during the trial without justification. Before the trial commenced, counsel asked the court to remove the handcuffs from defendant and stated the defense was ready. The subject was not mentioned again until the mistrial motion. We therefore only consider the effect on the jurors of seeing defendant in restraints during transportation.

Prejudicial error does not occur simply because the defendant “‘was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen.’ [Citation.]” (People v. Tuilaepa (1992) 4 Cal.4th 569, 584.) Thus “a jury’s brief observations of physical restraints generally have been found nonprejudicial. [Citations.]” (People v. Slaughter (2002) 27 Cal.4th 1187, 1213.)

Although the record is not clear, we defer to the trial court’s determination that a juror may have seen defendant as he was being transported to the bathroom in handcuffs. No more than two jurors saw defendant in restraints. The viewing was necessarily brief as defendant was being transported outside the courtroom, and the jurors only could have seen him in the hallway during transportation. The cautionary instruction removed any possibility that defendant was so prejudiced that a mistrial was necessary. The trial court did not abuse its discretion in denying the mistrial motion.

II

Upper Term Sentences

Defendant claims his upper term sentences for driving under the influence and driving with a blood alcohol level of .08 percent or above violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) and improperly used an element of a crime to impose an upper term. We disagree.

A. Cunningham

Defendant was tried after the Supreme Court announced the Cunningham decision. Although the Legislature had amended the determinate sentencing law in response to Cunningham, the court did not apply the amendments as the bill had not been signed when the jury reached its verdict. The court also ruled Cunningham precluded it from considering the fact that the prior convictions were “numerous” or his performance on parole was inappropriate.

In imposing upper terms on both counts, the court stated: “the only conclusion I can come to is that the maximum sentence, that is the upper term sentence, must be imposed in this case. The defendant has suffered five prior convictions, each conviction was for driving under the influence of alcohol. In any number of those cases someone was injured as a result of the defendant’s driving. All of those facts warrant an upper term sentence.”

Defendant argues the trial court’s use of prior convictions to justify the upper term sentence relied on “qualitative, subjective conclusions” contrary to Cunningham and its predecessors, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].

The United States Supreme Court, applying Blakely and Apprendi, held in Cunningham that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864.) However, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

In People v. Black (2007) 41 Cal.4th 799, our Supreme Court reaffirmed that the right to a jury trial does not apply to recidivist facts, such as prior convictions and convictions that are increasing in number and seriousness. (Id. at pp. 819-820.) Defendant has five prior convictions for DUI, including two for driving under the influence while causing injury to another (Veh. Code, § 23153, subd. (a)). Since the prior convictions rendered him eligible for the upper term, imposition of the upper term sentences on the basis of the prison convictions did not violate his right to jury trial.

B. Dual Use of Facts

Defendant’s convictions for driving under the influence and driving with a blood alcohol level of .08 percent or above were elevated to felonies pursuant to Vehicle Code section 23550.5 due to defendant’s prior conviction for driving under the influence on July 26, 2004, in Yolo County.

Defendant further argues the court’s use of his prior convictions as an aggravating factor violates the rule against using an element of a crime to impose an upper term. (Cal. Rules of Court, rule 4.420(d).) Again we disagree.

Vehicle Code section 23550.5 does not define a substantive offense. Former Vehicle Code section 23175 allowed a person convicted under Vehicle Code section 23152 to be sentenced to state prison if the offense took place within seven years of three or more statutorily specified convictions. (People v. Coronado (1995) 12 Cal.4th 145, 151-152; Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, § 2, p. 5580; Stats. 1990, ch. 44, § 6, p. 255.) The Supreme Court held this provision did “not define a substantive offense, but rather result in increased punishment for a current conviction under Vehicle Code section 23152.” (Coronado, supra, at p. 152, fn. 5.)

Vehicle Code section 23550.5, which operates in the same manner, is also not a substantive offense. Like former Vehicle Code section 23175, this provision is best “described as a sentence-enhancing statute and not a substantive offense statute. [Citation.]” (People v. Coronado, supra, 12 Cal.4th at p. 152, fn. 5.) Therefore, the court did not violate California Rules of Court, rule 4.420(d) when it imposed the upper term.

III

Abstract of Judgment and Fines

Defendant notes the abstract states defendant is subject to a $20 fine pursuant to Penal Code section 1759. No such fine exists and the court never imposed one. We shall order the court to correct the abstract to remove the reference to the nonexistent fine.

The People point out the court did not impose the $20 court security fee pursuant to Penal Code section 1465.8. Penal Code section 1465.8, subdivision (a)(1), provides for the imposition of a $20 court security fee on every conviction for a criminal offense. (Pen. Code, § 1465.8, subd. (a)(1).) The statute unambiguously requires a fee to be imposed for each of defendant’s convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)

Since the fee is mandatory and applies to each conviction, the court’s error can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) In this case, defendant was convicted on two counts and the court should have imposed two court security fees. Where a trial court fails to impose a statutorily mandated fine or fee, it renders an unauthorized sentence, which an appellate court is empowered to correct even if the People made no objection to the trial court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.)

Accordingly, we modify the judgment to impose two $20 court security fees and order the trial court to prepare an abstract of judgment reflecting the fees. (See People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)

Disposition

The judgment is modified to impose two $20 court security fees pursuant to Penal Code section 1465.8 subdivision (a)(1). As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment deleting the reference to a $20 fine pursuant to Penal Code section 1759 and reflecting that defendant is to pay two $20 court security fees pursuant to Penal Code section 1465.8, subdivision (a)(1). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

HULL , J.

I concur:

DAVIS , Acting P.J.

I concur except as to Part II of the Discussion in which I concur in the result.

NICHOLSON , J.

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San Diego DUI attorney news

April 30, 2008

San Diego DUI lawyers are sometimes asked how to
keep your car from starting if you have had too
much to drink.

www.sandiegodrunkdrivingattorney.net

Daniel Berry, owner & inventor of the NEW
DUI Steering Wheel Timer Lock, is presently
selling them for $10. + $5. shipping. It keeps your
car at home or at bar/party if you fine yourself
drinking to much. Use it with any anti-theft
steering wheel car bar (The Club)or wrap seat belt
around steering wheel & lock it on or put all car keys
in a tool box & lock it up. You can set timer for
5am,6am,7am or any time in morning to open lock. YOU
CAN NOT OPEN LOCK UNTIL THAT TIME.

So get all your shopping/driving done as early as
you can on any day/night you may be drinking & lock up
quickly & keep your car at home. This commits you to
use a designated driver,cab,bus or walk to bar/party.

The Judge may give you less jail time if you promise
to lock before first drink on your drinking days.Send
$15. Daniel Berry 6917 Alexandria Ct. Fort Worth,
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Interesting.

San diego dui lawyers for a long time have known that DUI police falsify San Diego DUI arrest reports; it has been proven at court and at DMV hearings.

Prosecutors detail case against Chicago's top DUI cop
Officer accused of falsifying reports

April 30, 2008

With two fellow officers and two young prosecutors looking on, Chicago Police Officer John Haleas ignored numerous critical steps in making a legitimate drunken driving arrest in April 2005, a string of missteps that ultimately led to his own indictment, Cook County prosecutors say.

At Haleas' arraignment Tuesday, prosecutors released new details about the Northwest Side traffic stop that led to criminal charges against Chicago's top DUI cop and the dismissal of 156 of his previous DUI arrests by the Cook County state's attorney.

Haleas made 718 arrests in 2005 and 2006 and was the primary witness in hundreds of DUI cases, garnering for himself a "Top Cop" honor from the Alliance Against Intoxicated Motorists for having more DUI arrests than any other officer in the state.

But according to prosecutors, Haleas didn't bother to perform a field sobriety test, and lied in his reports and claimed he had followed procedures.

Court documents filed Tuesday also revealed that the man arrested that night registered a blood-alcohol content of 0.334, a level of intoxication at which people can lose consciousness or, in some cases, die.

The man's DUI conviction was tossed out because of Haleas' misconduct.

"Somebody that blows a 0.334 is significantly under the influence of alcohol and well beyond impairment to drive a vehicle," Haleas' lawyer, Robert Kuzas, said Tuesday. "We're happy Haleas was able to make this arrest, and hopefully this person will never harm anyone."

Haleas was charged last month with four counts of perjury, four counts of official misconduct and two counts of obstructing justice. He was stripped of his police powers after police learned of the charges. The department had given Haleas a one-day suspension and sent him back to work after investigating.

The DUI prosecutors were riding with Haleas the night of the arrest as part of their training.

www.sandiegodrunkdrivingattorney.net/blog

San Diego criminal defense attorney news www.SanDiegoDUI.com

Driving under the influence of cannabis: a 10-year study of age and gender differences in the concentrations of tetrahydrocannabinol in blood
Authors: Jones, Alan W.; Holmgren, Anita; Kugelberg, Fredrik C.

Source: Addiction, Volume 103, Number 3, March 2008 , pp. 452-461(10)

Publisher: Blackwell Publishing

Background 

Δ9-Tetrahydrocannabinol (THC) is the major psychoactive constituent of cannabis and its various preparations. Increasing use of cannabis for recreational purposes has created a problem for road-traffic safety. This paper compares age, gender and the concentrations of THC in blood of individuals apprehended for driving under the influence of drugs (DUID) in Sweden, where a zero-tolerance law operates. Measurements 

Specimens of blood or urine were subjected to a broad screening analysis by enzyme immunoassay methods. THC positives were verified by analysis of blood by gas chromatography-mass spectrometry (GC-MS) with a deuterium-labelled internal standard (d3-THC). All toxicology results were entered into a database (TOXBASE) along with the age and gender of apprehended drivers. Findings 

Over a 10-year period (1995-2004), between 18% and 30% of all DUID suspects had measurable amounts of THC in their blood (> 0.3 ng/ml) either alone or together with other drugs. The mean age [± standard deviation (SD)] of cannabis users was 33 ± 9.4 years (range 15-66 years), with a strong predominance of men (94%, P < 0.001). The frequency distribution of THC concentrations (n = 8794) was skewed markedly to the right with mean, median and highest values of 2.1 ng/ml, 1.0 ng/ml and 67 ng/ml, respectively. The THC concentration was less than 1.0 ng/ml in 43% of cases and below 2.0 ng/ml in 61% of cases. The age of offenders was not correlated with the concentration of THC in blood (r = −0.027, P > 0.05). THC concentrations in blood were higher when this was the only psychoactive substance present (n = 1276); mean 3.6 ng/ml, median 2.0 ng/ml compared with multi-drug users; mean 1.8 ng/ml, median 1.0 ng/ml (P < 0.001). In cases with THC as the only drug present the concentration was less than 1.0 ng/ml in 26% and below 2.0 ng/ml in 41% of cases. The high prevalence of men, the average age and the concentrations of THC in blood were similar in users of illicit drugs (non-traffic cases).

Conclusions 

The concentration of THC in blood at the time of driving is probably a great deal higher than at the time of sampling (30-90 minutes later). The notion of enacting science-based concentration limits of THC in blood (e.g. 3-5 ng/ml), as discussed in some quarters, would result in many individuals evading prosecution. Zero-tolerance or limit of quantitation laws are a much more pragmatic way to enforce DUID legislation.

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OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VIRGINIA v. MOORE
CERTIORARI TO THE SUPREME COURT VIRGINIA
No. 06–1082. Argued January 14, 2008—Decided April 23, 2008
Rather than issuing the summons required by Virginia law, police arrested
respondent Moore for the misdemeanor of driving on a suspended
license. A search incident to the arrest yielded crack cocaine,
and Moore was tried on drug charges. The trial court declined to
suppress the evidence on Fourth Amendment grounds. Moore was
convicted. Ultimately, the Virginia Supreme Court reversed, reasoning
that the search violated the Fourth Amendment because the arresting
officers should have issued a citation under state law, and the
Fourth Amendment does not permit search incident to citation.
Held: The police did not violate the Fourth Amendment when they
made an arrest that was based on probable cause but prohibited by
state law, or when they performed a search incident to the arrest.
Pp. 3–13.
(a) Because the founding era’s statutes and common law do not
support Moore’s view that the Fourth Amendment was intended to
incorporate statutes, this is “not a case in which the claimant can
point to a ‘clear answer [that] existed in 1791 and has been generally
adhered to by the traditions of our society ever since,’ ” Atwater v.
Lago Vista, 532 U. S. 318, 345. Pp. 3–5.
(b) Where history provides no conclusive answer, this Court has
analyzed a search or seizure in light of traditional reasonableness
standards “by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.”
Wyoming v. Houghton, 526 U. S. 295, 300. Applying that
methodology, this Court has held that when an officer has probable
cause to believe a person committed even a minor crime, the arrest is
constitutionally reasonable. Atwater, supra, at 354. This Court’s decisions
counsel against changing the calculus when a State chooses to
2 VIRGINIA v. MOORE
Syllabus
protect privacy beyond the level required by the Fourth Amendment.
See, e.g., Whren v. United States, 517 U. S. 35. United States v. Di
Re, 332 U. S. 581, distinguished. Pp. 6–8.
(c) The Court adheres to this approach because an arrest based on
probable cause serves interests that justify seizure. Arrest ensures
that a suspect appears to answer charges and does not continue a
crime, and it safeguards evidence and enables officers to conduct an
in-custody investigation. A State’s choice of a more restrictive
search-and-seizure policy does not render less restrictive ones unreasonable,
and hence unconstitutional. While States are free to require
their officers to engage in nuanced determinations of the need for arrest
as a matter of their own law, the Fourth Amendment should reflect
administrable bright-line rules. Incorporating state arrest rules
into the Constitution would make Fourth Amendment protections as
complex as the underlying state law, and variable from place to place
and time to time. Pp. 8–11.
(d) The Court rejects Moore’s argument that even if the Constitution
allowed his arrest, it did not allow the arresting officers to
search him. Officers may perform searches incident to constitutionally
permissible arrests in order to ensure their safety and safeguard
evidence. United States v. Robinson, 414 U. S. 218. While officers issuing
citations do not face the same danger, and thus do not have the
same authority to search, Knowles v. Iowa, 525 U. S. 113, the officers
arrested Moore, and therefore faced the risks that are “an adequate
basis for treating all custodial arrests alike for purposes of search
justification,” Robinson, supra, at 235. Pp. 11–13.
272 Va. 717, 636 S. E. 2d 395, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ.,
joined. GINSBURG, J., filed an opinion concurring in the judgment.
Cite as: 553 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1082
_________________
VIRGINIA, PETITIONER v. DAVID LEE MOORE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VIRGINIA
[April 23, 2008]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether a police officer violates the Fourth
Amendment by making an arrest based on probable cause
but prohibited by state law.
I
On February 20, 2003, two City of Portsmouth police
officers stopped a car driven by David Lee Moore. They
had heard over the police radio that a person known as
“Chubs” was driving with a suspended license, and one of
the officers knew Moore by that nickname. The officers
determined that Moore’s license was in fact suspended,
and arrested him for the misdemeanor of driving on a
suspended license, which is punishable under Virginia law
by a year in jail and a $2,500 fine, Va. Code Ann. §§18.2–
11, 18.2–272, 46.2–301(C) (Lexis 2005). The officers subsequently
searched Moore and found that he was carrying
16 grams of crack cocaine and $516 in cash.1 See 272 Va.
——————
1 The arresting officers did not perform a search incident to arrest
immediately upon taking Moore into custody, because each of them
mistakenly believed that the other had done so. App. 54–55; see also
id., at 33–34. They realized their mistake after arriving with Moore at
Moore’s hotel room, which they had obtained his consent to search, and
2 VIRGINIA v. MOORE
Opinion of the Court
717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d
74 (2005).
Under state law, the officers should have issued Moore a
summons instead of arresting him. Driving on a suspended
license, like some other misdemeanors, is not an
arrestable offense except as to those who “fail or refuse to
discontinue” the violation, and those whom the officer
reasonably believes to be likely to disregard a summons,
or likely to harm themselves or others. Va. Code Ann.
§19.2–74 (Lexis 2004). The intermediate appellate court
found none of these circumstances applicable, and Virginia
did not appeal that determination. See 272 Va., at 720,
n. 3, 636 S. E. 2d, at 396–397, n. 3. Virginia also permits
arrest for driving on a suspended license in jurisdictions
where “prior general approval has been granted by order
of the general district court,” Va. Code Ann. §46.2–936;
Virginia has never claimed such approval was in effect in
the county where Moore was arrested.
Moore was charged with possessing cocaine with the
intent to distribute it in violation of Virginia law. He filed
a pretrial motion to suppress the evidence from the arrest
search. Virginia law does not, as a general matter, require
suppression of evidence obtained in violation of state law.
See 45 Va. App., at 160–162, 609 S. E. 2d, at 82 (Annunziata,
J., dissenting). Moore argued, however, that suppression
was required by the Fourth Amendment. The
trial court denied the motion, and after a bench trial found
Moore guilty of the drug charge and sentenced him to a 5-
year prison term, with one year and six months of the
sentence suspended. The conviction was reversed by a
panel of Virginia’s intermediate court on Fourth Amendment
grounds, id., at 149–150, 609 S. E. 2d, at 76, reinstated
by the intermediate court sitting en banc, 47 Va.
——————
they searched his person there. Ibid. Moore does not contend that this
delay violated the Fourth Amendment.
Cite as: 553 U. S. ____ (2008) 3
Opinion of the Court
App. 55, 622 S. E. 2d 253 (2005), and finally reversed
again by the Virginia Supreme Court, 272 Va., at 725, 636
S. E. 2d, at 400. The Court reasoned that since the arresting
officers should have issued Moore a citation under
state law, and the Fourth Amendment does not permit
search incident to citation, the arrest search violated the
Fourth Amendment. Ibid. We granted certiorari. 551
U. S. ___ (2007).
II
The Fourth Amendment protects “against unreasonable
searches and seizures” of (among other things) the person.
In determining whether a search or seizure is unreasonable,
we begin with history. We look to the statutes and
common law of the founding era to determine the norms
that the Fourth Amendment was meant to preserve. See
Wyoming v. Houghton, 526 U. S. 295, 299 (1999); Wilson v.
Arkansas, 514 U. S. 927, 931 (1995).
We are aware of no historical indication that those who
ratified the Fourth Amendment understood it as a redundant
guarantee of whatever limits on search and seizure
legislatures might have enacted.2 The immediate object of
the Fourth Amendment was to prohibit the general war-
——————
2 Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view
JUSTICE GINSBURG advances that the legality of arrests for misdemeanors
involving no breach of the peace “depended on statutory authorization.”
Post, at 1, n. 1 (opinion concurring in judgment). Atwater cited
both of the sources on which JUSTICE GINSBURG relies for a limited view
of common-law arrest authority, but it also identified and quoted
numerous treatises that described common-law authority to arrest for
minor misdemeanors without limitation to cases in which a statute
authorized arrest. See 532 U. S., at 330–332. Atwater noted that many
statutes authorized arrest for misdemeanors other than breaches of the
peace, but it concluded that the view of arrest authority as extending
beyond breaches of the peace also reflected judge-made common law.
Id., at 330–331. Particularly since Atwater considered the materials on
which JUSTICE GINSBURG relies, we see no reason to revisit the case’s
conclusion.
4 VIRGINIA v. MOORE
Opinion of the Court
rants and writs of assistance that English judges had
employed against the colonists, Boyd v. United States, 116
U. S. 616, 624–627 (1886); Payton v. New York, 445 U. S.
573, 583–584 (1980). That suggests, if anything, that
founding-era citizens were skeptical of using the rules for
search and seizure set by government actors as the index
of reasonableness.
Joseph Story, among others, saw the Fourth Amendment
as “little more than the affirmance of a great constitutional
doctrine of the common law,” 3 Commentaries on
the Constitution of the United States §1895, p. 748 (1833),
which Story defined in opposition to statutes, see Codification
of the Common Law in The Miscellaneous Writings of
Joseph Story 698, 699, 701 (W. Story ed. 1852). No early
case or commentary, to our knowledge, suggested the
Amendment was intended to incorporate subsequently
enacted statutes. None of the early Fourth Amendment
cases that scholars have identified sought to base a constitutional
claim on a violation of a state or federal statute
concerning arrest. See Davies, Recovering the Original
Fourth Amendment, 98 Mich. L. Rev. 547, 613–614
(1999);3 see also T. Taylor, Two Studies in Constitutional
Interpretation 44–45 (1969).
Of course such a claim would not have been available
against state officers, since the Fourth Amendment was a
restriction only upon federal power, see Barron ex rel.
Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But
early Congresses tied the arrest authority of federal officers
to state laws of arrest. See United States v. Di Re,
——————
3 Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613,
n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant
to the Fourth Amendment’s contours simply applied the principle that
statutes enacted in the years immediately before or after the Amendment
was adopted shed light on what citizens at the time of the Amendment’s
enactment saw as reasonable. Boyd v. United States, 116 U. S.
616, 622–623 (1886).
Cite as: 553 U. S. ____ (2008) 5
Opinion of the Court
332 U. S. 581, 589 (1948); United States v. Watson, 423
U. S. 411, 420 (1976). Moreover, even though several
state constitutions also prohibited unreasonable searches
and seizures, citizens who claimed officers had violated
state restrictions on arrest did not claim that the violations
also ran afoul of the state constitutions.4 The apparent
absence of such litigation is particularly striking in
light of the fact that searches incident to warrantless
arrests (which is to say arrests in which the officer was
not insulated from private suit) were, as one commentator
has put it, “taken for granted” at the founding, Taylor,
supra, at 45, as were warrantless arrests themselves,
Amar, Fourth Amendment First Principles, 107 Harv.
L. Rev. 757, 764 (1994).
There are a number of possible explanations of why such
constitutional claims were not raised. Davies, for example,
argues that actions taken in violation of state law
could not qualify as state action subject to Fourth
Amendment constraints. 98 Mich. L. Rev., at 660–663.
Be that as it may, as Moore adduces neither case law nor
commentaries to support his view that the Fourth
Amendment was intended to incorporate statutes, this is
“not a case in which the claimant can point to ‘a clear
answer [that] existed in 1791 and has been generally
adhered to by the traditions of our society ever since.’ ”
Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration
in original).
——————
4 Massachusetts, for example, had a state constitutional provision
paralleling the Fourth Amendment, but the litigants in the earliest
cases we have identified claiming violations of arrest statutes in the
Commonwealth did not argue that their arrests violated the Commonwealth’s
Constitution. See Brock v. Stimson, 108 Mass. 520 (1871);
Phillips v. Fadden, 125 Mass. 198 (1878); see also Tubbs v. Tukey, 57
Mass. 438 (1849) (asserting violation of state common law concerning
arrest but not asserting violation of state constitution).
6 VIRGINIA v. MOORE
Opinion of the Court
III
A
When history has not provided a conclusive answer, we
have analyzed a search or seizure in light of traditional
standards of reasonableness “by assessing, on the one
hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests.”
Houghton, 526 U. S., at 300; see also Atwater, 532 U. S., at
346. That methodology provides no support for Moore’s
Fourth Amendment claim. In a long line of cases, we have
said that when an officer has probable cause to believe a
person committed even a minor crime in his presence, the
balancing of private and public interests is not in doubt.
The arrest is constitutionally reasonable. Id., at 354; see
also, e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004);
Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v.
United States, 338 U. S. 160, 164, 170, 175–176 (1949).
Our decisions counsel against changing this calculus
when a State chooses to protect privacy beyond the level
that the Fourth Amendment requires. We have treated
additional protections exclusively as matters of state law.
In Cooper v. California, 386 U. S. 58 (1967), we reversed a
state court that had held the search of a seized vehicle to
be in violation of the Fourth Amendment because state
law did not explicitly authorize the search. We concluded
that whether state law authorized the search was irrelevant.
States, we said, remained free “to impose higher
standards on searches and seizures than required by the
Federal Constitution,” id., at 62, but regardless of state
rules, police could search a lawfully seized vehicle as a
matter of federal constitutional law.
In California v. Greenwood, 486 U. S. 35 (1988), we held
that search of an individual’s garbage forbidden by California’s
Constitution was not forbidden by the Fourth
Amendment. “[W]hether or not a search is reasonable
Cite as: 553 U. S. ____ (2008) 7
Opinion of the Court
within the meaning of the Fourth Amendment,” we said,
has never “depend[ed] on the law of the particular State in
which the search occurs.” Id., at 43. While “[i]ndividual
States may surely construe their own constitutions as
imposing more stringent constraints on police conduct
than does the Federal Constitution,” ibid., state law did
not alter the content of the Fourth Amendment.
We have applied the same principle in the seizure context.
Whren v. United States, 517 U. S. 806 (1996), held
that police officers had acted reasonably in stopping a car,
even though their action violated regulations limiting the
authority of plainclothes officers in unmarked vehicles.
We thought it obvious that the Fourth Amendment’s
meaning did not change with local law enforcement practices—
even practices set by rule. While those practices
“vary from place to place and from time to time,” Fourth
Amendment protections are not “so variable” and cannot
“be made to turn upon such trivialities.” Id., at 815.
Some decisions earlier than these excluded evidence
obtained in violation of state law, but those decisions
rested on our supervisory power over the federal courts,
rather than the Constitution. In Di Re, 332 U. S. 581,
federal and state officers collaborated in an investigation
that led to an arrest for a federal crime. The Government
argued that the legality of an arrest for a federal offense
was a matter of federal law. Id., at 589. We concluded,
however, that since Congress had provided that arrests
with warrants must be made in accordance with state law,
the legality of arrests without warrants should also be
judged according to state-law standards. Id., at 589–590.
This was plainly not a rule we derived from the Constitution,
however, because we repeatedly invited Congress to
change it by statute—saying that state law governs the
validity of a warrantless arrest “in [the] absence of an
applicable federal statute,” id., at 589, and that the Di Re
rule applies “except in those cases where Congress has
8 VIRGINIA v. MOORE
Opinion of the Court
enacted a federal rule,” id., at 589–590.
Later decisions did not expand the rule of Di Re. Johnson
v. United States, 333 U. S. 10 (1948), relied on Di Re to
suppress evidence obtained under circumstances identical
in relevant respects to those in that case. See 333 U. S., at
12, 15, n. 5. And Michigan v. DeFillippo, 443 U. S. 31
(1979), upheld a warrantless arrest in a case where compliance
with state law was not at issue. While our opinion
said that “[w]hether an officer is authorized to make an
arrest ordinarily depends, in the first instance, on state
law,” it also said that a warrantless arrest satisfies the
Constitution so long as the officer has “probable cause to
believe that the suspect has committed or is committing a
crime.” Id., at 36. We need not pick and choose among the
dicta: Neither Di Re nor the cases following it held that
violations of state arrest law are also violations of the
Fourth Amendment, and our more recent decisions, discussed
above, have indicated that when States go above
the Fourth Amendment minimum, the Constitution’s
protections concerning search and seizure remain the
same.
B
We are convinced that the approach of our prior cases is
correct, because an arrest based on probable cause serves
interests that have long been seen as sufficient to justify
the seizure. Whren, supra, at 817; Atwater, supra, at 354.
Arrest ensures that a suspect appears to answer charges
and does not continue a crime, and it safeguards evidence
and enables officers to conduct an in-custody investigation.
See W. LaFave, Arrest: The Decision to Take a
Suspect into Custody 177–202 (1965).
Moore argues that a State has no interest in arrest
when it has a policy against arresting for certain crimes.
That is not so, because arrest will still ensure a suspect’s
appearance at trial, prevent him from continuing his
Cite as: 553 U. S. ____ (2008) 9
Opinion of the Court
offense, and enable officers to investigate the incident
more thoroughly. State arrest restrictions are more accurately
characterized as showing that the State values its
interests in forgoing arrests more highly than its interests
in making them, see, e.g., Dept. of Justice, National Institute
of Justice, D. Whitcomb, B. Lewin, & M. Levine,
Issues and Practices: Citation Release 17 (Mar. 1984)
(describing cost savings as a principal benefit of citationrelease
ordinances); or as showing that the State places a
higher premium on privacy than the Fourth Amendment
requires. A State is free to prefer one search-and-seizure
policy among the range of constitutionally permissible
options, but its choice of a more restrictive option does not
render the less restrictive ones unreasonable, and hence
unconstitutional.
If we concluded otherwise, we would often frustrate
rather than further state policy. Virginia chooses to protect
individual privacy and dignity more than the Fourth
Amendment requires, but it also chooses not to attach to
violations of its arrest rules the potent remedies that
federal courts have applied to Fourth Amendment violations.
Virginia does not, for example, ordinarily exclude
from criminal trials evidence obtained in violation of its
statutes. See 45 Va. App., at 161, 609 S. E. 2d, at 82
(Annunziata, J., dissenting) (citing Janis v. Commonwealth,
22 Va. App. 646, 651, 472 S. E. 2d 649, 652
(1996)). Moore would allow Virginia to accord enhanced
protection against arrest only on pain of accompanying
that protection with federal remedies for Fourth Amendment
violations, which often include the exclusionary rule.
States unwilling to lose control over the remedy would
have to abandon restrictions on arrest altogether. This is
an odd consequence of a provision designed to protect
against searches and seizures.
Even if we thought that state law changed the nature of
the Commonwealth’s interests for purposes of the Fourth
10 VIRGINIA v. MOORE
Opinion of the Court
Amendment, we would adhere to the probable-cause standard.
In determining what is reasonable under the Fourth
Amendment, we have given great weight to the “essential
interest in readily administrable rules.” Atwater, 532
U. S., at 347. In Atwater, we acknowledged that nuanced
judgments about the need for warrantless arrest were
desirable, but we nonetheless declined to limit to felonies
and disturbances of the peace the Fourth Amendment rule
allowing arrest based on probable cause to believe a law
has been broken in the presence of the arresting officer.
Id., at 346–347. The rule extends even to minor misdemeanors,
we concluded, because of the need for a brightline
constitutional standard. If the constitutionality of
arrest for minor offenses turned in part on inquiries as to
risk of flight and danger of repetition, officers might be
deterred from making legitimate arrests. Id., at 351. We
found little to justify this cost, because there was no “epidemic
of unnecessary minor-offense arrests,” and hence “a
dearth of horribles demanding redress.” Id., at 353.
Incorporating state-law arrest limitations into the Constitution
would produce a constitutional regime no less
vague and unpredictable than the one we rejected in
Atwater. The constitutional standard would be only as
easy to apply as the underlying state law, and state law
can be complicated indeed. The Virginia statute in this
case, for example, calls on law enforcement officers to
weigh just the sort of case-specific factors that Atwater
said would deter legitimate arrests if made part of the
constitutional inquiry. It would authorize arrest if a
misdemeanor suspect fails or refuses to discontinue the
unlawful act, or if the officer believes the suspect to be
likely to disregard a summons. Va. Code Ann. §19.2–
74.A.1. Atwater specifically noted the “extremely poor
judgment” displayed in arresting a local resident who
would “almost certainly” have discontinued the offense
and who had “no place to hide and no incentive to flee.”
Cite as: 553 U. S. ____ (2008) 11
Opinion of the Court
532 U. S., at 346–347. It nonetheless declined to make
those considerations part of the constitutional calculus.
Atwater differs from this case in only one significant respect:
It considered (and rejected) federal constitutional
remedies for all minor-misdemeanor arrests; Moore seeks
them in only that subset of minor-misdemeanor arrests in
which there is the least to be gained—that is, where the
State has already acted to constrain officers’ discretion
and prevent abuse. Here we confront fewer horribles than
in Atwater, and less of a need for redress.
Finally, linking Fourth Amendment protections to state
law would cause them to “vary from place to place and
from time to time,” Whren, 517 U. S., at 815. Even at the
same place and time, the Fourth Amendment’s protections
might vary if federal officers were not subject to the same
statutory constraints as state officers. In Elkins v. United
States, 364 U. S. 206, 210–212 (1960), we noted the practical
difficulties posed by the “silver-platter doctrine,” which
had imposed more stringent limitations on federal officers
than on state police acting independent of them. It would
be strange to construe a constitutional provision that did
not apply to the States at all when it was adopted to now
restrict state officers more than federal officers, solely
because the States have passed search-and-seizure laws
that are the prerogative of independent sovereigns.
We conclude that warrantless arrests for crimes committed
in the presence of an arresting officer are reasonable
under the Constitution, and that while States are free
to regulate such arrests however they desire, state restrictions
do not alter the Fourth Amendment’s protections.
IV
Moore argues that even if the Constitution allowed his
arrest, it did not allow the arresting officers to search him.
We have recognized, however, that officers may perform
searches incident to constitutionally permissible arrests in
12 VIRGINIA v. MOORE
Opinion of the Court
order to ensure their safety and safeguard evidence.
United States v. Robinson, 414 U. S. 218 (1973). We have
described this rule as covering any “lawful arrest,” id., at
235, with constitutional law as the reference point. That
is to say, we have equated a lawful arrest with an arrest
based on probable cause: “A custodial arrest of a suspect
based on probable cause is a reasonable intrusion under
the Fourth Amendment; that intrusion being lawful, a
search incident to the arrest requires no additional justification.”
Ibid. (emphasis added). Moore correctly notes
that several important state-court decisions have defined
the lawfulness of arrest in terms of compliance with state
law. See Brief for Respondent 32–33 (citing People v.
Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923);
People v. DeFore, 242 N. Y. 13, 17–19, 150 N. E. 585, 586
(1926)). But it is not surprising that States have used
“lawful” as shorthand for compliance with state law, while
our constitutional decision in Robinson used “lawful” as
shorthand for compliance with constitutional constraints.
The interests justifying search are present whenever an
officer makes an arrest. A search enables officers to safeguard
evidence, and, most critically, to ensure their safety
during “the extended exposure which follows the taking of
a suspect into custody and transporting him to the police
station.” Robinson, supra, at 234–235. Officers issuing
citations do not face the same danger, and we therefore
held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do
not have the same authority to search. We cannot agree
with the Virginia Supreme Court that Knowles controls
here. The state officers arrested Moore, and therefore
faced the risks that are “an adequate basis for treating all
custodial arrests alike for purposes of search justification.”
Robinson, supra, at 235.
The Virginia Supreme Court may have concluded that
Knowles required the exclusion of evidence seized from
Moore because, under state law, the officers who arrested
Cite as: 553 U. S. ____ (2008) 13
Opinion of the Court
Moore should have issued him a citation instead. This
argument might have force if the Constitution forbade
Moore’s arrest, because we have sometimes excluded
evidence obtained through unconstitutional methods in
order to deter constitutional violations. See Wong Sun v.
United States, 371 U. S. 471, 484–485, 488 (1963). But the
arrest rules that the officers violated were those of state
law alone, and as we have just concluded, it is not the
province of the Fourth Amendment to enforce state law.
That Amendment does not require the exclusion of evidence
obtained from a constitutionally permissible arrest.
* * *
We reaffirm against a novel challenge what we have
signaled for more than half a century. When officers have
probable cause to believe that a person has committed a
crime in their presence, the Fourth Amendment permits
them to make an arrest, and to search the suspect in order
to safeguard evidence and ensure their own safety. The
judgment of the Supreme Court of Virginia is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 553 U. S. ____ (2008) 1
GINSBURG, J., concurring in judgment
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1082
_________________
VIRGINIA, PETITIONER v. DAVID LEE MOORE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VIRGINIA
[April 23, 2008]
JUSTICE GINSBURG, concurring in the judgment.
I find in the historical record more support for Moore’s
position than the Court does, ante, at 3–5.1 Further, our
decision in United States v. Di Re, 332 U. S. 581, 587–590
(1948), requiring suppression of evidence gained in a
search incident to an unlawful arrest, seems to me pinned
——————
1 Under the common law prevailing at the end of the 19th century, it
appears that arrests for minor misdemeanors, typically involving no
breach of the peace, depended on statutory authorization. See Wilgus,
Arrest Without a Warrant, 22 Mich. L. Rev. 541, 674 (1924) (“Neither
[an officer] nor [a citizen], without statutory authority, may arrest [a
defendant] for . . . a misdemeanor which is not a [breach of the peace]”
(emphasis added)); 9 Halsbury, Laws of England §§608, 611–612, 615
(1909). See also Atwater v. Lago Vista, 532 U. S. 318, 342–345 (2001)
(noting 19th-century decisions upholding statutes extending warrantless
arrest authority to misdemeanors, other than breaches of the
peace, committed in a police officer’s presence); Wilgus, supra, at 551
(warrantless misdemeanor arrests “made under authority of a statute
must conform strictly to its provisions; otherwise they will not be valid,
and the one arresting becomes a trespasser”).
Noting colonial hostility to general warrants and writs of assistance,
the Court observes that “founding-era citizens were skeptical of using
the rules for search and seizure set by government actors as the index
of reasonableness.” Ante, at 4. The practices resisted by the citizenry,
however, served to invade the people’s privacy, not to shield it.
2 VIRGINIA v. MOORE
GINSBURG, J., concurring in judgment
to the Fourth Amendment and not to our “supervisory
power,” ante, at 7.2 And I am aware of no “long line of
cases” holding that, regardless of state law, probable cause
renders every warrantless arrest for crimes committed in
the presence of an arresting officer “constitutionally reasonable,”
ante, at 6.3
I agree with the Court’s conclusion and its reasoning,
however, to this extent. In line with the Court’s decision
——————
2 The Court attributes Di Re’s suppression ruling to our “supervisory
power,” not to “a rule we derived from the Constitution.” Ante, at 7.
Justice Jackson, author of Di Re, however, did not mention “supervisory
power,” placed the decision in a Fourth Amendment context, see 332
U. S., at 585, and ended with a reminder that “our Constitution [places]
obstacles in the way of a too permeating police surveillance,” id., at 595.
The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to
Di Re’s Fourth Amendment instruction, the Court announced a choiceof-
law rule not derived from the Constitution: When a state officer
makes a warrantless arrest for a federal crime, federal arrest law
governs the legality of the arrest; but absent a federal statute in point,
“the law of the state where an arrest without warrant takes place
determines its validity.” Id., at 588–589.
3 Demonstrative of the “long line,” the Court lists Atwater, 532 U. S.,
at 354, Devenpeck v. Alford, 543 U. S. 146, 152 (2004), Brinegar v.
United States, 338 U. S. 160, 164, 170, 175–176 (1949), and Gerstein v.
Pugh, 420 U. S. 103, 111 (1975). Ante, at 6. But in all of these cases,
unlike Moore’s case, state law authorized the arrests. The warrantless
misdemeanor arrest in Atwater was authorized by Tex. Transp. Code
Ann. §543.001 (West 1999). See 532 U. S., at 323. The warrantless
misdemeanor arrest in Devenpeck was authorized by Wash. Rev. Code
Ann. §10.31.100 (Michie 1997). In Brinegar, whether the warrantless
arrest was for a misdemeanor or a felony, it was authorized by state
law. See Okla. Stat., Tit. 22, §196 (1941). Gerstein involved a challenge
to the State’s preliminary hearing procedures, not to the validity of a
particular arrest. See 420 U. S., at 105. The record does not indicate
whether the respondents’ offenses were committed in the officer’s
presence or whether the arrests were made under warrant. See id.,
at 105, n. 1. But it does indicate that the crimes involved were serious
felonies, see ibid., and state law authorized arrest without warrant
when “[a] felony has been committed and [the officer] reasonably
believes that the [apprehended] person committed it,” Fla. Stat. Ann.
§901.15(2) (West 1973).
Cite as: 553 U. S. ____ (2008) 3
GINSBURG, J., concurring in judgment
in Atwater v. Lago Vista, 532 U. S. 318, 354 (2001), Virginia
could have made driving on a suspended license an
arrestable offense. The Commonwealth chose not to do so.
Moore asks us to credit Virginia law on a police officer’s
arrest authority, but only in part. He emphasizes Virginia’s
classification of driving on a suspended license as a
nonarrestable misdemeanor. Moore would have us ignore,
however, the limited consequences Virginia attaches to a
police officer’s failure to follow the Commonwealth’s summons-
only instruction. For such an infraction, the officer
may be disciplined and the person arrested may bring a
tort suit against the officer. But Virginia law does not
demand the suppression of evidence seized by an officer
who arrests when he should have issued a summons.
The Fourth Amendment, today’s decision holds, does not
put States to an all-or-nothing choice in this regard. A
State may accord protection against arrest beyond what
the Fourth Amendment requires, yet restrict the remedies
available when police deny to persons they apprehend the
extra protection state law orders. See ante, at 9. Because
I agree that the arrest and search Moore challenges violated
Virginia law, but did not violate the Fourth Amendment,
I join the Court’s judgment.

San Diego Drunk Driving Criminal Defense Attorney post

April 29, 2008

Reportable DUI/DWI Administrative Actions or Convictions

--------------------------------------------------------------------------------
Examples of Reportable Administrative Actions (Not a comprehensive list)
Revocation, suspension, or cancellation of driver license for:
Chemical test failure
Chemical test refusal
Administrative per se orders
10-day civil revocations
Express consent revocation/suspensi on
Examples of Reportable Convictions (Not a comprehensive list)
Driving Under the Influence (DUI)
Driving While Impaired (DWI)
Driving with an Unlawful Blood Alcohol Level
Operating While Under the Influence (OWUI)
Note: Under 14 CFR 61.15, all pilots must send a Notification Letter (MS Word) to FAA’s Security and Investigations Division, within 60 calendar days of the effective date of an alcohol-related conviction or administrative action.

Federal Aviation Administration
Security and Investigations Division (AMC-700)
P.O. Box 25810
Oklahoma City, OK 73125
Failure to Send a Notification Letter
Failure to send a Notification Letter within 60 days to FAA’s Security & Investigations Division is grounds for:

Denial of an application for any certificate, rating, or authorization issued under this regulation for up to one year after the date of the motor vehicle action
Suspension or revocation of any certificate, rating, or authorization issued under this regulation.

ALCOHOL OFFENSE REPORTING
Alcohol and piloting don't mix. Student pilots learn operating rules like the "eight hours from bottle to throttle" mnemonic to help remember minimum required intervals. Other details of this subject on which you may be tested include how and when pilots must report alcohol-related motor vehicle violations to the FAA. There are two reporting requirements. Complying with one does not satisfy the need to make the other report—nor are they made to the same FAA officials. Do you know the requirements?

One report is made on an application for an airman medical certificate (download a copy that you can review). See the instructions page for "convictions or administrative action history."

A less-understood reporting obligation appears in the Federal Aviation Regulations (FARs). It requires reporting a "motor vehicle action" not later than 60 days after the motor vehicle action is taken. "One of the distinctions is that this notification must be made to the FAA within a short time after the event occurs and may not wait until your next medical examination. In addition, the notification must be made to the FAA's security office, not the medical office; thus, disclosing this information on the medical application form, which you may have to do also, does not discharge your responsibility to report the information under FAR 61.15," Kathy Yodice explained in the July 2001 AOPA Flight Training's "Legal Briefing" column. See the column for a definition of a "motor vehicle action."

What happens after a report? "The effects of a report, or a failure to report, are serious. If a pilot does report a motor vehicle action, it will automatically trigger a review of the pilot's file to determine if the pilot continues to be eligible for his or her airman certificate (two or more in a three-year period and you are out) or medical certificate (a history of alcoholism). If a pilot fails to report even one conviction or administrative action, that is grounds for suspension or revocation of any pilot certificate or rating he holds. It is also grounds for denial of an application for a certificate or rating for up to one year after the date of the motor vehicle action," John Yodice said in the May 2002 AOPA Pilot column "Pilot Counsel: Flying and Driving."