San Diego California DUI criminal defense attorneys mention the drunk driving checkpoint requirements police must have before they can start arresting folks for San Diego DUI incidents.

DUI / Drunk Driving / DWI guidelines to determine whether a particular DUI / Drunk Driving / DWI checkpoint is constitutionally valid in New Jersey require that the DUI / Drunk Driving / DWI checkpoint be "established for a specific need and to achieve a particular purpose at a specific place", proof of “some substantial benefit to the public from the road-block stops and some appropriate control of the discretion of the officer in the field.”

This DUI Defendant argued that the drunk driving officers had impermissible discretion to determine which vehicles to stop and that the location of the DUI / Drunk Driving / DWI checkpoint was not justified, because the lieutenant gave field personnel the right to change the stoppage from every 3rd vehicle to something else if traffic permitted.

Such a direction was found acceptable. Site selection was acceptable because there were many factors justifying the placement of a DUI / Drunk Driving / DWI checkpoint at this location, including the fact that numerous Drunk Driving arrests had been made in the vicinity of the DUI / Drunk Driving / DWI checkpoint in the past, that the area is well traveled, and that numerous restaurants and bars serving alcoholic beverages are located in the vicinity of the DUI / Drunk Driving / DWI checkpoint location.

Advance notice was not constitutionally required, but also noted that the DUI / Drunk Driving / DWI checkpoint was "posted on the internet". This DUI / Drunk Driving / DWI checkpoint was upheld.


--- A.2d ----, 2010 WL 2794410 (N.J.Super.A. D.)

STATE OF NEW JERSEY, Plaintiff-Responden t,
v.
ROBERT BREMBT, Defendant-Appellant .

DOCKET NO. A-0103-09T4
Superior Court of New Jersey, Appellate Division.
Submitted June 7, 2010-Decided

Before Judges Yannotti and Chambers.


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-08-09.
George F. Surgent, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel).

PER CURIAM

Defendant Robert Brembt appeals from his conviction for driving while intoxicated (DWI). He contends that his conviction should be overturned because he was stopped at a checkpoint that violated the standards set forth in State v. Kirk, 202 N.J.Super. 28 (App.Div.1985). Finding no violation of those standards, we affirm.

On May 24, 2008, at 12:50 a.m., defendant was stopped at a DWI checkpoint located on Wyckoff Avenue in Waldwick Township. The officer who approached him observed that defendant's eyes were glassy and watery, saw two open cans of beer in the vehicle, and smelled an alcoholic beverage on defendant's breath. The officer then had defendant recite the alphabet, count backward, and perform other field sobriety tests. Based on defendant's performance, the officer concluded that defendant was intoxicated and arrested him. Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g)(1); possessing an open container in a motor vehicle, N.J.S.A. 39:4-51b; and reckless driving, N.J.S.A. 39:4-96.

Defendant filed a motion to suppress and argued that the DWI checkpoint did not meet the requirements set forth in State v. Kirk, and that there was no probable cause to stop him based on the officers' observations of his vehicle. After conducting an evidentiary hearing, the municipal court denied the motion.

Defendant thereafter entered into a conditional plea agreement, reserving his right to appeal the denial of his motion to suppress, and he pled guilty to driving while intoxicated. The other charges were dismissed. The municipal court sentenced defendant to forty-eight hours in the Intoxicated Driver Resource Center (IDRC) and thirty days of community service, suspended his driver's license and driver's registration for two years, and imposed a $500 fine and the requisite monetary costs and surcharges.

Defendant appealed to the Law Division, which conducted a de novo review and concluded that the checkpoint satisfied the requirements of State v. Kirk. It imposed the same sentence as the municipal court. That decision was memorialized in the order of August 6, 2009. Defendant appeals from the order, contending that the checkpoint does not meet the requirements of State v. Kirk.

While the trial court's review of an appeal from a municipal court decision is de novo, Rule 3:23-8(a), our review is more limited. “We do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Oliveri, 336 N.J.Super. 244, 252 (App.Div.2001). However, with respect to questions of law, we give the conclusions of the trial court no deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A checkpoint or roadblock is considered a seizure within the meaning of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey State Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed.2d 660, 667 (1979); State v. Kirk, supra, 202 N.J.Super. at 35-37. In State v. Kirk, supra, applying New Jersey State constitutional law, we wrote that when stopping a vehicle at a checkpoint or roadblock, “[t]he police need not show probable cause to stop any individual driver but they must show some rational basis for deploying this type of intrusive law enforcement technique.” 202 N.J.Super. at 56. To meet the requirements of the New Jersey Constitution, a roadblock “must be established for a specific need and to achieve a particular purpose at a specific place.” State v. Carty, 170 N.J. 632, 652 (2002). In order to justify the intrusion of these stops, the State must demonstrate “some substantial benefit to the public from the road-block stops and some appropriate control of the discretion of the officer in the field.” State v. Kirk, supra, 202 N.J.Super. at 55.

Further, “[s]imply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based on articulated and rational law enforcement needs” would not be likely to pass constitutional muster. Id. at 41.

If the road block was established by a command or supervisory authority and was carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals, the road block will likely pass constitutional muster. Other factors which enhanced judicial approval were (1) adequate warnings to avoid frightening the traveling public, (2) advance general publicity designed to deter drunken drivers from getting in cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers.

[State v. Carty, supra, 170 N.J. at 652-53 (quoting State v. Kirk, supra, 202 N.J.Super. at 40-41).]

Defendant argues that the officers had impermissible discretion to determine which vehicles to stop and that the location of the checkpoint was not justified. The checkpoint in this case was implemented through a memorandum developed by the lieutenant in charge of the Traffic Bureau in the Waldwick Police Department and which was approved by the Bergen County Prosecutor. The memorandum allowed the officers to stop every third vehicle, but if traffic conditions permitted they could stop every vehicle. Defendant contends that allowing the officers to determine when traffic conditions permitted stopping every vehicle gave them too much discretion and was a direct violation of State v. Kirk.

We reject this argument. Certainly, to justify a roadblock, the State must, among other factors, show some “appropriate control of the discretion of the officer in the field.” State v. Kirk, supra, 202 N.J.Super. at 55. However, here the testimony indicates that the decision whether to stop every vehicle or every third vehicle was not made by the officers stopping the vehicles, but rather by the lieutenant and two police chiefs who were on the scene of the checkpoint. Under these circumstances, the discretion to choose between stopping every vehicle and every third vehicle was appropriately limited and supervised and does not run afoul of the State v. Kirk requirement.

Defendant also contends that there is no justification for placing a checkpoint at this particular location. The site of a checkpoint must be “designed to benefit the overall effort to cope with drunken driving.” Id. at 57. This standard has been met. The memorandum from the lieutenant to the Bergen County Prosecutor seeking approval for a checkpoint at this particular location is replete with factors justifying the placement of a checkpoint at this location, including the fact that numerous DWI arrests had been made in the vicinity of the checkpoint in the past, that the area is well traveled, and that numerous restaurants and bars serving alcoholic beverages are located in the vicinity of the checkpoint location.

Defendant further asserts that the State failed to provide appropriate notice to motorists approaching the checkpoint. The Court has recognized that a valid checkpoint must provide “adequate warnings to avoid frightening the traveling public.” State v. Carty, supra, 170 N.J. at 652-53 (quoting State v. Kirk, supra, 202 N.J.Super. at 40-41). This requirement was met here. Before reaching the checkpoint, the approaching motorists encountered signs stating “DWI checkpoint ahead,” or “stop, DWI checkpoint,” and cones were set out to guide traffic. In addition, the checkpoint was illuminated with four flood lights and light from a fire department rescue truck.

Defendant also contends that the police did not give required advance notice to the public at large of the planned checkpoint. The Court has recognized that “advance general publicity designed to deter drunken drivers from getting in cars in the first place” is a factor that will “enhance[ ] judicial approval” of a checkpoint. Ibid. (quoting State v. Kirk, supra, 202 N.J.Super. at 40-41). However, advance newspaper notice of a checkpoint is not constitutionally required. State v. DeCamera, 237 N.J.Super. 380, 383 (App.Div.1989). Here, the police sent out a notice of the checkpoint on the internet. We find no constitutional flaw here.

Finally, defendant contends that the record contains no evidence that “less intrusive methods of deterring intoxicated drivers was studied, considered or attempted” nor any evidence presented on the effectiveness of the checkpoint. To sustain the constitutionality of a roadblock or checkpoint, the State must be able to show a “substantial benefit to the public.” State v. Kirk, supra, 202 N.J.Super. at 55. The rational needs of law enforcement and the benefits to the public of the checkpoint must outweigh the intrusion on the privacy rights of citizens to travel unimpeded on the roadways. Id. at 55-56.

Here, the memorandum from the lieutenant to the Bergen County Prosecutor prepared prior to the checkpoint sets forth the justification for the checkpoint. It explains the success of checkpoints to the east of this location in the past; sets forth statistics on the number of accidents and DWI arrests and related accidents in Waldwick for the preceding eight years; and states the reasons for selecting this particular location. This information is sufficient to establish legitimate law enforcement goals in implementing this checkpoint. Further, the lieutenant in charge of traffic for Waldwick testified that “[i]t has been my experience over the course of twenty years that most of our drunk driving arrests in town involve some type of passage along Wyckoff Avenue.” The record is sufficient to establish the public interest in the checkpoint.

For all of these reasons, we conclude that the record contains sufficient credible evidence to sustain the trial court's findings that the checkpoint met constitutional standards. Affirmed.

N.J.Super.A. D.,2010.
STATE OF NEW JERSEY, Plaintiff-Responden t, v. ROBERT BREMBT, Defendant-Appellant .

San Diego DUI criminal defense attorneys will tell this is a harsh drug DUI death sentence:
30 years hard labor, with opportunity for parole after 3 years, was not excessive because the sentence afforded defendant incentives for rehabilitation within the prison system to take advantage of early release on parole.

Drug addict mom with prescriptions and street drugs crashed into another vehicle, killing its driver.

DUI cops found legal and illegal drugs in her system, including the anti-depressants Amitriptyline (Elavil) and Nortriptyline (Aventyl), painkillers methadone and hydrocodone (Lortab), anti-anxiety medications Meprobamate (Equanil) and Diazepam (Valium or Xanax), and metabolites of controlled dangerous substances, cocaine and marijuana. DUI police also found cocaine and marijuana in her car.

Supreme Court of Louisiana.

STATE of Louisiana
v.
Maryln A. LeBLANC.

No. 2009-K-1355.

July 6, 2010.

Background: Defendant was convicted on her guilty pleas in the 15th Judicial District Court, Parish of Lafayette, No. CR 116138, Durwood Conque, J., of one count of vehicular homicide and three counts of vehicular negligent injuring. Defendant appealed. The Court of Appeal, 12 So.3d 1125, vacated the 30-year sentence for vehicular homicide as excessive, and remanded for resentencing. State applied for writ of certiorari.



Holding: The Supreme Court held that maximum term of 30-years imprisonment at hard labor, with three years without benefit of parole, was not excessive sentence.



Decision of Court of Appeal reversed; sentence reinstated; case remanded.



West Headnotes


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Sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense.


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While comparisons with other similar cases is useful in itself and sets the stage, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense.


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Maximum term of 30-years imprisonment at hard labor, with first three years to be served without benefit of probation, parole, or suspension of sentence, was not excessive sentence for vehicular homicide, even though defendant was a first offender without any prior record and was the mother of two adolescent boys who depended upon her for guidance and support, where defendant was a drug addict and had a cocktail of eight drugs in her system when she crashed into victim's vehicle, including not only prescription drugs but also illegal controlled substances, defendant's guilty plea did not necessarily reflect an acknowledgment of the direct correlation between her drug abuse and the death of victim or recognition of defendant's moral culpability, and sentence afforded defendant incentives for rehabilitation within the prison system to take advantage of early release on parole. LSA-R.S. 14:32.1.


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The decision of where to place defendant's conduct on that broad sentencing continuum for the crime of vehicular homicide fell within the discretion of the trial court.


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The availability of early release options is generally a relevant consideration in review of sentences for excessiveness.


On Writ of Certiorari to the Third Circuit Court of Appeal.

PER CURIAM.FN1



*1 Following a fatal automobile accident on the evening of April 21, 2007, the state charged defendant in a 12-count bill of information with a variety of crimes, including vehicular homicide, vehicular negligent injuring, driving while intoxicated, possession of marijuana and cocaine, and several traffic offenses. In all, defendant faced a maximum possible sentence of nearly 50 years imprisonment. On March 13, 2008, pursuant to a plea bargain which did not include sentence, defendant pleaded guilty to one count of vehicular homicide, La. R.S. 14:32.1, and to three counts of vehicular negligent injuring in violation of La.R.S. 14:39.1. The state dismissed the remaining charges and the trial court ordered a presentence investigation report. On September 8, 2008, the trial court conducted a sentencing hearing during which members of the victim's family and defendant's family addressed the court. At the close of the hearing, the court sentenced defendant on her conviction for vehicular homicide to the maximum term of 30 years imprisonment at hard labor, three years without benefit of parole, probation, or suspension of sentence. The court also imposed maximum sentences of six months on each of the vehicular negligent injuring convictions, to run concurrently with each other and with the 30-year sentence for vehicular homicide. The court denied defendant's subsequent motion to reconsider sentence based on a bare claim of excessiveness.



Defendant appealed her conviction and sentences to the appellate court, which vacated the sentence on her vehicular homicide conviction as excessive, and remanded for resentencing. State v. LeBlanc, 08-1533 (La.App. 3rd Cir.6/10/09) , 12 So.3d 1125 (Amy, J., dissenting). The state applied for review of that decision in this Court and we granted the application to consider the finding of the court of appeal that “the maximum sentence of thirty years in this case is grossly disproportionate to the severity of the crime and is nothing more than a needless imposition of pain and suffering .” LeBlanc, 08-1533 at 16, 12 So.3d at 1135. The state and defendant agreed to submit the case on briefs and after considering the arguments made for and against the sentence imposed by the trial court for vehicular homicide, we reverse the decision below and reinstate defendant's 30-year term of imprisonment at hard labor.



As detailed by the state during the colloquy accompanying defendant's guilty pleas, in the early evening of April 21, 2007, Michael Hardy and members of his family were traveling in a caravan of several vehicles to a family reunion in Lafayette Parish. Hardy drove the lead car and his son, Kyle, sat beside him in the front passenger seat. Mrs. Genevieve Hardy, Michael Hardy's wife, and her daughter, Cristi Hardy, occupied the rear passenger seats. The cars traveled southbound on Louisiana Highway 274, known as South Fieldspan. At the same time, defendant was driving northbound on Highway 274. Defendant drove erratically, veered into the edge of a ditch along the highway, emerged from it, and abruptly crossed into the southbound lane of the road. Michael Hardy swerved to the right to miss defendant's vehicle, but because of the speed with which she emerged from the ditch and shot across the highway, defendant's car struck the driver's side of Mr. Hardy's car, sending it out of control off the southbound lane of Highway 274 and into a ditch. Mrs. Genevieve Hardy died in the accident, and her daughter Cristi, suffered serious injury. Michael and Kyle Hardy escaped with relatively minor injuries.



*2 After colliding with the Hardy vehicle, defendant's car straightened out and she continued northbound, still speeding and driving erratically until she reached the intersection of Highway 274 and Highway 90, where defendant drove through the parking lot of Don's Country Corner, striking another car. After vaulting across Highway 90 into another ditch, defendant regained the roadway and drove westbound on Highway 90, turning south on Highway 343, where she encountered units of the Lafayette Parish Sheriff's Office, which gave chase and stopped her. When she got out of her vehicle, defendant exhibited slurred speech and glossy red eyes and performed poorly on field sobriety tests. She first informed the officers that an unknown black male had kidnapped her at Don's Country Corner, beat her up, and forced her to drive while he grasped the steering wheel and caused her to crash several times. She then admitted that she had been the victim of a battery elsewhere and drove erratically because she thought her assailant was chasing her. Defendant also admitted that she had taken Methadone, Xanax, Lortab and other drugs on that day. Officers on the scene found cocaine and marijuana in her car and following her arrest, a test performed by the Louisiana State Police Crime Lab on physical samples taken from defendant detected the presence of eight drugs, legal and illegal, including the anti-depressants Amitriptyline (Elavil) and Nortriptyline (Aventyl), painkillers methadone and hydrocodone (Lortab), anti-anxiety medications Meprobamate (Equanil) and Diazepam (Valium or Xanax), and metabolites of controlled dangerous substances, cocaine and marijuana.



At sentencing, members of defendant's family recalled their strict upbringing in a family life devoid of alcohol and drugs and were therefore at a loss to explain why and how defendant became addicted to drugs, although they recognized that her second husband also had a serious drug problem of his own resulting in an unhappy marriage. However, despite her severe drug problems, and two failed marriages, defendant had managed to raise two teenage boys, one about to graduate from high school, and they spoke well of her as a mother. Defendant's family physician, Dr. Khorsandi, also testified on her behalf at the hearing and discussed treating her since 2002, at first for neck pain after she had fallen off some steps, and then for chronic lower back pain. He prescribed anti-depressants and anti-anxiety medications for her, and also Lortab for pain. Dr. Khorsandi did not prescribe methadone but did encourage her to go to a methadone clinic apparently for treatment of chronic pain. At some point in 2006, when defendant was admitted to an emergency room next to his office, Dr. Khorsandi learned that she had tested positive for cocaine. The physician found the results of the drug screen performed by the Louisiana State Police Crime Lab following defendant's arrest consistent overall with the medications he had prescribed for her, except, of course, for the marijuana and cocaine metabolites found in her system. Dr. Khorsandi agreed with the state that the screens had detected a substantial amount of drugs in defendant's system, both legal and illegal.



*3 However, in speaking to the probation officer conducting the presentence investigation before the sentencing hearing, defendant attributed the accident not to her drug use but to emotional upset following an earlier physical confrontation with her cocaine dealer, who, defendant recounted, beat her up, blackening her eyes and bloodying her nose, after the dealer found some of her personal belongings in defendant's vehicle. Defendant freely acknowledged a severe drug problem and conceded that although she had begun treatment at the Methadone Clinic in Breaux Bridge, and had been admitted for in-patient drug detoxification for a number of days in the Lafayette General Hospital, she never really sought out any substance abuse treatment and that after her release from the hospital, she resumed her drug use.



In its reasons for sentence, the trial court acknowledged that defendant was a first offender without any prior record and that she was the mother of two adolescent boys who depend upon her for guidance and support. The court also readily acknowledged the general principle “that the minimum sentence is reserved for those instances of this particular crime that occur in the least egregious way or the least serious or offensive way, and that maximum sentence is reserved for those crimes that appear to be the worst way that this particular crime can be committed, the most egregious, the most serious. Everything else is in between.” In determining where defendant's case belonged on the continuum of the range provided by R.S. 14:32.1, not less than five years imprisonment at hard labor, at least three years without benefit of parole, probation, or suspension or sentence, and not more than 30 years imprisonment at hard labor, the trial court looked to the sentencing guidelines in La.C.Cr.P. art. 894.1. The court specifically found that because she was addicted to drugs, defendant posed an undue risk of committing other crimes if given a suspended sentence and placed on probation because “there is an extreme risk that she would fall right back into the lifestyle that she was in before [and] also the risk that she would ... get behind the wheel again.” The court further found that defendant needed to “turn her life around,” and recommended that she receive “every available treatment ... but in an institutional, lock-down type facility.” Finally, while acknowledging that defendant was a first offender who had led a “trouble-free life in terms of involvement with the law,” the court also observed that she had knowingly created a risk of death or great bodily harm to more than one person, that she had, in fact, killed one person and injured three other members of the deceased victim's family, as a result of a sequence of events which began earlier that day when defendant found herself:



in the company of some people from whom she obtained drugs, and she may or may not have had an altercation with those people, but I certainly believe that that happens all the time, that people who are dealing in drugs or possessing drugs or using drugs do get into altercations, do get into fights. She got in a car with a cocktail of drugs in her system .... [and ultimately] had to be chased down by the police. This makes her story about her being scared because people were following her that she had been in a fight with a little hard to believe.



*4 Less difficult to believe for the trial court was defendant's statement to police officers following her arrest that “she had taken methadone, Xanax, Lortab, and other drugs that day, and that she had been using cocaine heavily for the past few days,” as evidenced by the cocaine found in her car along with some marijuana. “This shows a reckless disregard for her own life and of the lives of others,” the court noted, “and that's what I am trying to emphasize in this case.” Thus, in the court's view, “the only punishment that can fit the crime in this particular case, everything considered, is going to be the maximum sentence.” In imposing the sentence, the court took pains to clarify that it was denying defendant parole eligibility only for the mandatory minimum term specified by La.R.S. 14:32.1(B), i.e., for three years.



In vacating that penalty, the court of appeal readily acknowledged that in reviewing a sentence for excessiveness, “[t]he relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” LeBlanc, 08-1533 at 5, 12 So.3d at 1129 (citing State v. Cook, 95-2784 (La.5/31/96) , 674 So.2d 957). However, the court of appeal also noted the “seminal sentencing precept,” acknowledged as well by the trial court, that maximum sentences are reserved for the most serious violations of the particular offense and the worst offenders. Id., 08-1533 at 6, 12 So.3d at 1129; see, e.g., State v. Telsee, 425 So.2d 1251, 1253 (La.1983)(“The goal of the legislative scheme embodied in [La.C.Cr.P. art. 894.1] is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case. The result which obtains is that the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class.”). For the court of appeal, defendant did not qualify under that general principle because her involvement in drugs had begun only in the early 2000's after she suffered her own injuries in either a fall from steps or in a car accident, yet the trial court “did not appear to consider Defendant's health problems and continuing substance abuse as mitigating factors but rather ignored the cause of her substance abuse and her attempts to get help for the problem.” LeBlanc, 08-1533 at 14, 12 So.3d at 1134. Based on its review of pertinent jurisprudence, the court of appeal concluded that “[i]n cases where the offenders were guilty of driving intoxicated and causing accidents in which deaths resulted, and who were either first-time felony offenders or whose criminal history was minor, the sentences tended to be only one-half to three-quarters of the maximum sentences.” Id., 08-1533 at 15, 12 So.3d at 1134. Thus, the court of appeal concluded that in the present case “the trial court abused its discretion when it sentenced Defendant to the maximum without adequate consideration of the circumstances in the case.... While the trial court correctly determined that Defendant was in need of treatment and that the seriousness of the offense required incarceration, we find that the circumstances of her case indicate that a lesser sentence would have served the same purpose.” Id., 08-1533 at 15-16, 12 So.3d at 1134-35. At the same time, in remanding the case for resentencing, the court of appeal refrained from suggesting any particular sentence, or any particular sentencing range, that might pass muster under the prohibition of excessive punishment in La. Const. art. I, § 20.



*5 Dissenting, Judge Amy pointed out that the “cocktail” of drugs in defendant's system when she crashed into the Hardy vehicle included not only prescription drugs but also illegal controlled substances that she had in her possession when the police finally stopped her. This factor led him to “differentiate the criminal aspect of the defendant's behavior from other cases wherein the maximum sentence was found inappropriate for vehicular homicide defendants with elevated blood alcohol levels.” LeBlanc, 08-1533 at 1, 12 So.3d at 1135 (Amy, J., dissenting). In light of the trial court's due consideration of defendant's “flight from the scene and the fact that she only stopped after a police chase onto a highway” and the court's conclusion that “these circumstances demonstrated the defendant's reckless disregard for her life and those of others,” Judge Amy found no abuse of discretion in the trial court's imposition of a maximum term of imprisonment at hard labor. Id.



The court of appeal panel thus divided over the claimed excessiveness of a sentence whose length reflects the legislature' s continuing reassessment of vehicular homicide as a serious felony offense. When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La.R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La.R.S. 14:32 or La.R.S. 14:32.1. See, e.g., State v. Pelt, 448 So.2d 1294 (La.1984); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Wilcoxon, 26,126 (La.App. 2nd Cir.6/22/94) , 639 So.2d 385, writ denied, 94-1961 (La.12/16/94) , 648 So.2d 386; State v. Wry, 591 So.2d 774 (La.App. 2nd Cir.1991); State v. Yates, 574 So.2d 566 (La.App. 3rd Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Rock, 571 So.2d 908 (La.App. 5th Cir.1990), writ denied, 577 So.2d 49 (La.1991); State v. Williams, 546 So.2d 494 (La.App. 4th Cir.1989), writ denied, 553 So.2d 470 (La.1989).



Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion.”).



*6 [1] Headnote Citing References[2] Headnote Citing ReferencesThe broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” Telsee, 425 So.2d at 1254, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Id.



[3] Headnote Citing References[4] Headnote Citing ReferencesWe agree with Judge Amy that because the circumstances of the present case so clearly demonstrate why the legislature has steadily increased punishment for the crime of vehicular homicide, the decision of where to place defendant's conduct on that broad sentencing continuum fell within the discretion of the trial court. It clearly appears from the record of sentencing that in determining the length of sentence, the trial court took into account the possibilities for early release on parole. The court specifically noted that because La.R.S. 14:32.1 requires that the offender serve at least three years imprisonment without benefit of parole, probation, or suspension of sentence, defendant would not be eligible for intensive incarceration and intensive parole supervision as a matter of R.S. 15:574.4.1. However, by imposing only the mandatory minimum three-year term of parole disability, although La.R.S. 14:32.1 permits a court to deny parole eligibility altogether, the court made possible for defendant to secure release on parole after serving one-third of her term, or 10 years at hard labor. R.S. 15:574.4(A). She also remains eligible to earn early release (as if on parole) on good time credits after serving 15 years of her sentence. La.R.S. 15:571.3(B)(1). The presentence report underscored these opportunities when, after recommending a maximum sentence, it reminded the court that “with the possibility of parole release, and guaranteed Good Time Release, the maximum thirty (30) year sentence is actually a fifteen (15) year sentence at best.”



[5] Headnote Citing ReferencesThe availability of early release options is generally a relevant consideration in review of sentences for excessiveness. State v. Green, 418 So.2d 609, 616 (La.1982); cf. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973)(1978)(“A variety of flexible techniques-probatio n, parole, work furloughs, to name a few-and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases.”). In the present case the availability of early release appears central to a determination that defendant's sentence appropriately serves the sentencing goals of deterrence, retribution and rehabilitation. Cf. Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003)(“A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.” ) (citation omitted). Defendant's sentence will require her to serve a substantial term of imprisonment at hard labor commensurate with the seriousness of her crime which resulted in the death of another human being. In this respect, the trial court did not err in declining to consider defendant's drug addiction as a circumstance militating for a lesser term of imprisonment because it encompassed not only the legal drugs prescribed to her by Dr. Khorsandi, which she clearly abused, but also the illegal controlled substances she had acquired from other sources and also abused during her self-confessed days-long cocaine binge before she plowed into the Hardy family vehicle. By defendant's own admission during the presentence investigation, her longstanding abuse of legal and illegal drugs had been punctuated by only a few, half-hearted attempts to receive treatment. Nor did defendant's guilty pleas to vehicular homicide and negligent vehicular injuring necessarily reflect an acknowledgment of the direct correlation between her drug abuse and the death of Mrs. Hardy or recognition of her own moral culpability. Defendant reaped considerable benefit from her plea bargain with the state, which reduced her sentencing exposure by nearly 20 years, and it was scarcely a reassuring sign of her potential for rehabilitation that in speaking to the probation officer after she entered her guilty pleas defendant attributed the fatal accident not to the “cocktail” of drugs in her system but to a fight with her cocaine dealer who believed defendant had stolen some of her possessions.



*7 At the same time, defendant's sentence also affords her incentives for rehabilitation within the prison system to take advantage of early release on parole. Even then, she will remain subject to continuing state supervision for the unexpired term of her sentence, La.R.S. 15:574.6, as a means of minimizing the risk that she may resume her abuse of legal and illegal drugs and once more pose a serious threat to social order. Given the existence of ameliorative alternatives and the extreme circumstances surrounding commission of the crime, we cannot agree with the court of appeal majority that the sentence imposed by the trial court, although the maximum penalty for the offense, “makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (internal quotation marks and citation omitted).

We therefore reverse the decision below, reinstate defendant's sentence for vehicular homicide, and remand this case to the district court for execution of sentence.

COURT OF APPEAL DECISION REVERSED; DEFENDANT'S SENTENCE REINSTATED; CASE REMANDED

FN1. Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

La.,2010.
State v. LeBlanc
--- So.3d ----, 2010 WL 2723701 (La.), 2009-1355 (La. 7/6/10)

San Diego DUI criminal defense attorneys battle drunk driving test records all the time.

Texan test result records and the maintenance records for the intoxilyzer were admitted in the below DUI / DWI / Drunk Driving case by using a technical supervisor who was not even involved with the machine at the time of testing, but was only in charge of the machine at the time of DUI / DWI / Drunk Driving trial.

The DUI / DWI / Drunk Driving criminal defense lawyer objected to the records on the basis of a violation of his confrontation rights. Citing fn. 1 of Melendez-Diaz, found that the records were "nontestimonial".

Court of Appeals of Texas,

Fort Worth.

Mark Edward SETTLEMIRE, Appellant
v.
The STATE of Texas, State.

No. 2-09-214-CR.

July 8, 2010.

From County Criminal Court No. 6 of Tarrant County.
Abe Factor, for Mark Settlemire.

Charles M. Mallin, for the State of Texas.

PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

OPINION CHARLES BLEIL, Justice.

I. Introduction

*1 Mark Edward Settlemire appeals following his conviction by a jury of the misdemeanor offense of driving while intoxicated. In one point of error, he claims that the admission of his breath test results violated his right to be confronted by witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution. We conclude no violation of his rights occurred and affirm his conviction.


II. Factual and Procedural History

Grand Prairie Police Officer Todd Mathew Brannen was on duty the night of March 1, 2006, when he stopped at a red light behind Settlemire. When the light turned green, Settlemire did not proceed. Settlemire got out of his truck saying that it had broken down. Upon talking with Settlemire, the officer noticed that Settlemire's breath smelled of alcohol and that his eyes were glassy and red. He told the officer that he had gone to a bar after work, where he consumed two beers. The officer suspected that Settlemire was intoxicated.



After performing several field sobriety tests, all of which Settlemire failed, the officer arrested Settlemire. The results of the breath test administered to Settlemire confirmed that he was intoxicated.



At trial, and over Settlemire's Confrontation Clause objections, the trial court admitted into evidence the breath test results and the maintenance logs for the intoxilyzer machine. Lori Fuller, the technical supervisor in charge of the machine at the time of the trial, testified and sponsored the test results and maintenance records. Fuller was not the supervisor in charge of the machine when Settlemire was arrested.



III. No Confrontation Clause Violation

We now address the claimed error that the admission of the intoxilyzer maintenance records and the breath test results violated Settlemire's constitutional right to confront the witnesses against him as provided in the Sixth Amendment. See U.S. Const. amend. VI. Out-of-court statements of a testimonial nature are not admissible unless the declarant is unavailable to testify and the defendant has had a previous opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374 (2004).



Settlemire contends that the intoxilyzer maintenance records and breath test results are testimonial in nature and that the trial court erred in admitting those records over his objection. To support his argument, Settlemire relies on the United States Supreme Court's holding in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). In Melendez-Diaz, the defendant was on trial for selling cocaine. The State of Massachusetts offered “certificates of analysis” in the form of affidavits from lab technicians to prove that the substance in question was cocaine. Id. at 2531. The Court held that the certificates in question were a “core class of testimonial statements” covered by the Confrontation Clause. Id. at 2532 (relying on Crawford, 541 U.S. at 51, 124 S.Ct. at 1364). In so holding, the Court explained that the analysts who prepared the certificates were therefore “witnesses” who the defendant has a right to confront. Melendez-Diaz, 129 S.Ct. at 2532.



*2 The Court in Melendez-Diaz was apparently aware that its holding might be construed to extend to technical analysts who calibrate and operate equipment, such as the person who supervised Settlemire's intoxilyzer test equipment here. The Court explained:



[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution' s case.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.


Id. at 2532 n. 1.

Here, the individual, Fuller, who testified about the intoxilyzer' s status although she did not supervise it at the time of Settlemire's intoxilyzer test, is precisely the type of analyst that the Court anticipated might be challenged based on its holding in Melendez-Diaz. The Court made clear, however, that it did not intend its holding to “sweep[ ] away an accepted rule governing the admission of scientific evidence.” Id. at 2533.



We shall not construe Melendez-Diaz as doing what the Court clearly stated it was not doing. We hold that Settlemire's rights of confrontation were not violated. We overruled Settlemire's sole point.



IV. Conclusion

Having overruled Settlemire's sole point, we affirm the trial court's judgment.


Tex.App.-Fort Worth,2010.
Settlemire v. State
--- S.W.3d ----, 2010 WL 2720590 (Tex.App.-Fort Worth)

Local San Diego DUI criminal defense attorneys are pleased that in California, evidence of partition ratio variability is relevant and admissible to challenge the weight of a drunk driving breath test result, when attempting to prove if a person is under the influence of alcohol (but oddly enough, not .08% or more).

New York is not so science smart. Unless the defendant can prove his actual partition ratio, a general attack is remote, speculative, and therefore inadmissible. Such logic constitutes a burden-shifting device.

Certification records in New York are not subject to the confrontation clause as they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute “a direct accusation of an essential element of any offense.

Blood alcohol test result was inadmissible because the presence of numerous persons moving between the observing police officer, seated 5 to 10 feet from defendant, prevented the officer from maintaining a “continuous observation” of defendant for the 15-minute period prior to the test, was also held to be without merit. "Proof of the requisite “[c]ontinuous observation” (New York State Department of Health Regulations [10 NYCRR] § 59.5[b] ) is not a predicate condition to admit breathalyzer test results; rather, it 'goes only to the weight to be afforded the test result, not its admissibility'”

--- N.Y.S.2d ----, 2010 WL 2802714 (N.Y.Sup.App. Term), 2010 N.Y. Slip Op. 20283

New York Supreme Court, Appellate Term,
9th And 10th Judicial Districts.

The PEOPLE of the State of New York, Respondent,
v.
William E. LENT, Jr., Appellant.

No. 2009-512 N CR.

July 16, 2010.

Present: NICOLAI, P.J., TANENBAUM and IANNACCI, JJ.



*1 Appeal from judgments of the District Court of Nassau County, First District (Robert A. Bruno, J.), rendered March 13, 2009. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and speeding.



ORDERED that the judgments of conviction are affirmed.



Following a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192[2] ) and speeding (Vehicle and Traffic Law § 1180[b] ). At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, on March 11, 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had “one drink.” The officer administered a series of field sobriety tests, all of which defendant failed. The officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department's Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.



Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 “conversion” or “partition” ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person's blood from the quantity of alcohol vapor detected in a breath sample. Defendant did not challenge the instrument's reliability, but sought to lay the foundation for a jury argument that defendant's individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.



The scientific accuracy of “[b]reath testing instruments” approved by the New York State Department of Health (New York State Department of Health Regulations [10 NYCRR] § 59.4[a]; see Vehicle and Traffic Law § 1194[4] [c] ) is “no longer open to question” ( People v. Alvarez, 70 N.Y.2d 375, 380 [1987], quoting People v. Mertz, 68 N.Y.2d 136, 148 [1986] ), and the Intoxilyzer 5000 EN is one of those approved instruments (New York State Department of Health Regulations [10 NYCRR] § 59.4[b][4][xx]; [11][ix] ). A consequence of the general acceptance in the scientific community of the reliability of the results of blood alcohol testing by such instruments ( People v. Hughes, 59 N.Y.2d 523, 537 [1983] ) is that it is no longer necessary to establish, through foundational evidence, the reliability of the test results by means of expert testimony ( People v. Hampe, 181 A.D.2d 238, 240 [1992] ). The presumption of reliability extends to the scientific premises underlying the operation of breath test instruments, including the validity of the partition or conversion ratio.



*2 Although the fact, if not the magnitude, of conversion ratio variability is well established ( e.g. People v. McNeal, 46 Cal 4th 1183, 1191-1192, 201 P3d 420, 424-425 [2009]; cf. People v. Donaldson, 36 A.D.2d 37 [1971]; see generally, David Polin, Challenges to Use of Breath Tests for Drunk Drivers Based upon Claim that Partition or Conversion Ratio Between Measured Breath Alcohol and Actual Blood Alcohol is Inaccurate, 90 ALR 4th 155] ), as a general rule, evidence of such variability may not be introduced to challenge the reliability of instruments that determine blood alcohol levels from the analysis of breath samples ( e.g. People v. McNeal, 46 Cal 4th at 1192, 201 P3d at 425; Guthrie v. Jones, 202 Ariz 273, 43 P3d 601 [2002]; State v. Hanks, 172 Vt 93, 772 A.2d 1087 [2001]; Morris v. State, Dept. of Admin., Div. of Motor Vehicles, 186 P3d 575, 581 [Alaska 2008]; State v. Hardesty, 136 Idaho 707, 39 P3d 647 [2002] ). In the District Court, defense counsel, conceding that “[n]obody knows what [defendant's] ratio was,” argued, in effect, that the mere theoretical possibility that defendant's personal conversion ratio so differed from the ratio employed by the Intoxilyzer 5000 EN as to meaningfully diminish the weight to be accorded the test results. Therefore, counsel argued, evidence of conversion ratio variability within the population should be admissible without proof of defendant's own conversion ratio. We disagree.



Absent proof by defendant that his personal conversion ratio differs so significantly from the mean as to materially undermine the weight to be given the test result, it cannot be said that the test so erroneously recorded his blood alcohol content as to render his conviction wrongful. “Evidence, although technically relevant, will be excluded if it is too slight, remote, or conjectural to have a legitimate influence in determining the fact at issue” (Prince, Richardson on Evidence, § 4-103 [Farrell 11th ed]; see e.g. People v. Petty, 7 NY3d 277, 286 [2006]; People v. Mateo, 2 NY3d 383, 424-425 [2004] ). Thus, the District Court did not abuse its discretion in rejecting defendant's offer of proof which, while involving matters not theoretically irrelevant, was not shown to have probative value above the “slight, remote, or conjectural” and amounted to little more than an invitation to speculate.



Defendant also argues that Melendez-Diaz v. Massachusetts (U.S., 129 S.Ct 2527 [2009] ) overruled this court's determination in People v. Lebrecht (13 Misc.3d 45 [App Term, 9th & 10th Jud Dists 2006] ) that a defendant's confrontation rights ( see Crawford v. Washington, 541 U.S. 36 [2004] ) are not violated in a driving while intoxicated prosecution when the trial court admits, as business records ( see CPLR 4518), certified copies of the simulator solution certification and the calibration/ maintenance documentation in relation to the breath test instrument, offered as part of the foundation requirements for the admission of the blood alcohol test results, without the preparer of those records being available for cross-examination ( see also People v. Stevenson, 21 Misc.3d 128[A], 2008 N.Y. Slip Op 51933[U] [App Term, 1st Dept 2008]; People v. Fisher, 9 Misc.3d 1121[A], 2005 N.Y. Slip Op 51726[U] [Rochester City Ct, 2005]; People v. Kanhai, 8 Misc.3d 447 [Crim Ct, Queens County 2005] ).



*3 In Melendez-Diaz, the Supreme Court concluded that the State of Massachusetts had denied the defendant his Sixth Amendment confrontation rights by permitting a certified laboratory report of the analysis of a substance seized from the defendant to be offered into evidence without the necessity of presenting the analyst as a witness. Noting that “there is little reason to believe that confrontation will be useless in testing [an analyst's] honesty, proficiency, and methodology” ( Melendez-Diaz, 129 S.Ct at 2538), the Supreme Court excluded from the reach of the business records rule the product of “regularly conducted business activity [the purpose of which] is the production of evidence for use at trial” ( id.) as inherently testimonial. However, the Court also recognized that there exist “[b]usiness and public records [which] are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial” ( id. at 2539-2540).



Although explicitly declining to offer a “comprehensive definition” of what is testimonial (541 U.S. at 68), the Court in Crawford identified certain types of evidence as having a “common nucleus” of “testimoniality” (541 U.S. at 52): “typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact ... [which includes] ex parte in-court testimony” and “extrajudicial statements” such as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially” (541 U.S. at 51 [internal quotations marks and citation omitted]; but see Davis v. Washington, 547 U.S. 813, 828 [2006). In Lebrecht, we reasoned that Crawford did not apply because the calibration and maintenance documents “were prepared in the course of the certifier's routine official duties [and were] systematically produced in the conduct of [police department] business ... to fulfill an official mandate that the machines be maintained in working order. Although prepared, to an extent, in recognition of their necessity in the event of litigation and constituting a part of the foundational predicate for the admission of BAC test evidence, the certificates did not result from structured police questioning, they are not created at official request to gather incriminating evidence against a particular individual ... and they did not constitute a direct accusation of an essential element of any offense ... Proof that a BAC testing machine functions properly may exonerate as well as incriminate and represents merely the application of an objective procedure which does not involve the exercise of judgment and discretion, expressions of opinion, and making conclusions” (13 Misc.3d at 49 [internal quotation marks and citations omitted] ).



*4 In People v. Brown (13 NY3d 332, 340 [2009] ), the Court of Appeals invoked the Melendez-Diaz dictum (129 S.Ct at 2532 n. 1) that not everyone “whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution' s case” to underscore its conclusion that “merely machine-generated graphs, charts and numerical data” produced without any “conclusions, interpretations or comparisons” involving “subjective analysis” are non-testimonial within the meaning of Crawford. In Brown, the Court identified criteria relevant to determining if a record is testimonial, “(1) whether the agency that produced the record is independent of law enforcement; (2) whether it reflects objective facts at the time of their recording; (3) whether the report has been biased in favor of law enforcement; and (4) whether the report accuses the defendant by directly linking him or her to the crime” ( id. at 339-340; see also People v. Rawlins, 10 NY3d 136, 151 [2008] [“our task in each case must be to evaluate whether a statement is properly viewed as a surrogate for accusatory in-court testimony”] ). Under this formulation, the records at issue herein remain nontestimonial for purposes of the Confrontation Clause.



Concededly, police department personnel responsible for calibrating and maintaining breath test machines are not “independent of law enforcement,” and the business records rule may not be employed to shield from scrutiny records “calculated for use essentially in the courts, not in the business” ( Melendez-Diaz, 129 S.Ct at 2538). Further, while in New York, “law enforcement agencies constitute businesses for purposes of [CPLR 4518(a) ]” ( Rawlins, 10 NY3d at 149, quoting People v. Guidice, 83 N.Y.2d 630, 635 [1994] ), business records lose their exemption from the hearsay bar “if the regularly conducted business activity is the production of evidence for use at trial” ( Melendez-Diaz, 129 S.Ct at 2538). The test is first whether the documents qualify as business records and then whether they are also non-testimonial in the Crawford/Melendez- Diaz sense, whatever the state law definition of business records and the specifics of the foundation rules necessary to admit such records may be. While the purpose of accurate breath-alcohol measuring machines is to produce evidence that may be used at trial, the calibration and maintenance documents in relation to the machines are not testimonial. Calibration and maintenance records are created “in recognition of their necessity in the event of litigation and constitut[e] a part of the foundational predicate for the admission of BAC test evidence” ( Lebrecht, 13 Misc.3d at 49). However, such records do not result from structured police questioning, they are not created in response to any effort at gathering incriminating evidence against a particular accused, they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute “a direct accusation of an essential element of any offense” ( id.; see People v. Pacer, 6 NY3d 504, 510 [2006] ). Additionally, such records satisfy the Rawlins criteria to the extent that they were not “prepared in a manner resembling ex parte examination.” In light of the purpose of creating the documents, there is no reason to suspect a preparer's “motive” to accomplish anything other than “to fulfill [the] official mandate that the machines be maintained in working order” ( Lebrecht, 13 Misc.3d at 49; see Melendez-Diaz, 129 S.Ct at 2539-2540 [documentation “created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial ... are not testimonial”] ; id. at 2532 n. 1 [“(d)ocuments prepared in the regular course of equipment maintenance may well qualify as nontestimonial records”]; see also John McCormack, Does Melendez-Diaz Bar the Admission of the Calibration Reports of DWI Breath Testing Instruments? , Empire State Prosecutor, Fall 2009; see generally U.S. v. Forstell, 656 F.Supp 2d 578 [ED Va 2009]; People v. Harvey, 26 Misc.3d 1218[A], 2010 N.Y. Slip Op 50167[U] [Just Ct, Town of Lockport 2010]; People v. DiBari, 26 Misc.3d 1220 [A], 2010 N.Y. Slip Op 50191[U] [Just Ct, Town of North Castle 2010]; People v. Kelly, 26 Misc.3d 1205[A], 2009 N.Y. Slip Op 52664[U] [Crim Ct, N.Y. County 2009]; but cf. People v. Carreira, 27 Misc.3d 293 [Watertown City Ct 2010]; People v. Heyanka, 25 Misc.3d 978 [Dist Ct, Suffolk County 2009] ).



*5 Defendant's argument that the blood alcohol test result was inadmissible because the presence of numerous persons moving between the observing police officer, seated 5 to 10 feet from defendant, prevented the officer from maintaining a “continuous observation” of defendant for the 15-minute period prior to the test, is also without merit. Proof of the requisite “[c]ontinuous observation” (New York State Department of Health Regulations [10 NYCRR] § 59.5[b] ) is not a predicate condition to admit breathalyzer test results; rather, it “goes only to the weight to be afforded the test result, not its admissibility” ( People v. Schuessler, 14 Misc.3d 30, 32 [App Term, 9th & 10th Jud Dists 2006]; see People v.. Terrance, 120 A.D.2d 805, 807 [1986]; People v. Jones, 10 Misc.3d 413, 417 [Dutchess County Ct 2005] ). Moreover, the observation requirement is not strictly construed. “Neither the statute, the regulations nor the exercise of reason call for [a] constant vigil” ( People v. Williams, 96 A.D.2d 972, 973 [1983], revd on other grounds 62 N.Y.2d 765 [1984]; e.g. People v. McDonough, 132 A.D.2d 997, 998 [1987] ), and defendant does not claim that during the 15-minute period prior to the test, he placed anything in his mouth or that any other event occurred that implicated the test's accuracy ( see Lebrecht, 13 Misc.3d at 51).



In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349 [2007] ), we must accord great deference to the jury's opportunity to view the witnesses, hear the testimony and observe demeanor ( People v. Romero, 7 NY3d 633, 644 [2006]; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ). “[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [trier of fact] was justified in finding the defendant guilty beyond a reasonable doubt” ( People v. Otway, 71 AD3d 1052, 1053 [2010], quoting People v. Danielson, 9 NY3d at 348). Upon our review of the record, we are satisfied that the verdict was not against the weight of the evidence.



We have considered defendant's remaining contentions and find them unpreserved or without merit ( see People v. Atkins, 85 N.Y.2d 1007, 1008-1009 [1995]; People v. Kelly, 62 N.Y.2d 516, 521 [1984]; People v. Dory, 59 N.Y.2d 121, 127 [1983]; People v. Valerio, 70 AD3d 869 [2010]; People v. Marietta, 61 AD3d 997, 998 [2009]; People v. Norris, 34 AD3d 501, 503 [2006]; People v. Campbell, 7 AD3d 409, 410 [2004]; People v. Nelson, 144 A.D.2d 714, 716 [1988]; People v. Stoliarov, 21 Misc.3d 135[A], 2008 N.Y. Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2008] ).Accordingly, the judgments of conviction are affirmed.

NICOLAI, P.J., TANENBAUM and IANNACCI, JJ., concur.


By the same illogic, does the defendant in a DNA rape case have to prove that he is NOT an exact match, BEFORE he can introduce evidence that the DNA match does not exclude EVERYONE else?!

Appellate Court of Illinois,

Fifth District.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Christopher J. BAUER, Defendant-Appellant .

No. 5-09-0300.

July 9, 2010.

Appeal from the Circuit Court of Effingham County. Nos. 08-CF-8 & 09-DT-36, James J. Eder, Judge, presiding.
Lou J. Viverito, Taylor Law Offices, P.C., Effingham, IL, for Appellant.

David Rands, Special Prosecutor, Olney, IL, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Rebecca E. McCormick, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, for Appellee.

Justice WEXSTTEN delivered the opinion of the court:



*1 After he was indicted on two counts of felony aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(C) (West 2008)) in the circuit court of Effingham County, the defendant, Christopher J. Bauer, filed a motion to suppress evidence that he alleged the State had obtained by misusing the grand jury's subpoena power. Following a hearing, the circuit court denied the defendant's motion, and after a stipulated bench trial, the defendant was convicted of misdemeanor DUI (625 ILCS 5/11-501(a)(1) (West 2008)), with which he had been charged by information after the indictment had issued. We affirm.



BACKGROUND

On March 18, 2007, the defendant was involved in a motor vehicle collision in which he and the driver of one of the other vehicles were seriously injured and transported by helicopter to Carle Foundation Hospital (Carle) in Urbana, Illinois. In the course of his medical treatment at Carle, a specimen of the defendant's blood was drawn and tested for serum-alcohol level by hospital personnel.



Between March 18, 2007, the date of the accident, and January 15, 2008, the date the bill of indictment was issued, the grand jury issued a subpoena duces tecum on two occasions. A transcript of the grand jury proceedings on April 17, 2007, reveals that the Effingham State's Attorney appeared before and requested the grand jury to issue the first subpoena duces tecum for the results of the defendant's blood-alcohol test performed during the treatment he received on March 18, 2007. Accordingly, on April 17, 2007, the grand jury issued a subpoena duces tecum directing Carle to produce “to the Effingham County [g]rand [j]ury” records of “any and all blood and/or urine tests done and the results pertaining to [the defendant] for treatment received on or about March 18, 2007 [in addition to] reports * * * for purposes of determining blood alcohol concentration of [the defendant].” In response to the subpoena duces tecum, Carle returned to the State's Attorney a document dated May 3, 2007, that indicated, “There were labs drawn, but none of them pertaining to [b]lood [a]lcohol [c]oncentration.”



At the grand jury proceedings held on May 15, 2007, the State's Attorney appeared before and delivered to the grand jury the documents that had been sent to his office by Carle. The State's Attorney indicated that he had reviewed the documents that Carle had sent because when he received them in the mail, he did not recognize them to be grand jury material. The State's Attorney nevertheless asked the grand jury to release the documents to him so that he might look further into the matter with Carle, because he had a “hard time believing [Carle] did [not] somehow or other run blood alcohol on” the defendant. Accordingly, the grand jury released the documents to the State's Attorney.



At the grand jury proceedings on August 16, 2007, the State's Attorney requested the grand jury to issue the second subpoena duces tecum to Carle to acquire copies of general hospital records regarding the defendant, in an attempt to acquire blood test results that were not included in the documents returned in response to the grand jury's earlier subpoena. During these proceedings, Ron Kilman, the State's Attorney's investigator, testified that Carle had disclosed that its emergency room might have administered on the defendant a preliminary breath test, as opposed to a blood evidence test. Accordingly, on August 16, 2007, the grand jury issued a second subpoena duces tecum requesting Carle to produce by September 13, 2007, to “the Effingham County [g]rand [j]ury” the “[g]eneral [h]ospital records pertaining to [the defendant] for treatment received on or about March 18[ ] and March 19, 2007.” The first and the second subpoenas duces tecum were directed to Carle, the hospital where the defendant received treatment for his injuries. Both requested the production of documents to the Effingham County grand jury at its address, and both listed the State's Attorney's name and address on the lower left corner of the subpoena.



*2 The “general hospital records” produced by the hospital on August 20, 2007, in response to the second subpoena duces tecum, did not include a record of blood-alcohol testing. The State's Attorney thereafter contacted the hospital, and on October 23, 2007, the hospital personnel disclosed to the State's Attorney the “lab blood alcohol serum results,” indicating the defendant's serum-alcohol- concentration test result of .104.



At the grand jury proceedings held on November 15, 2007, the State's Attorney appeared before and delivered to the grand jury the Carle documents that included the defendant's serum-alcohol test results. While questioning Trooper Timothy Mehl, the State's Attorney stated, “[A]fter a lot of requests from both yourself and my office, for whatever reason, [Carle] figured out that there were * * * documents under one patient number at the hospital,” and “they have now sent to the grand jury a couple of more pages of documents that do include a blood alcohol level as opposed to a preliminary breath test that they had also done in the emergency room.” The State's Attorney explained that Carle had again mailed the documents to his office and that he had opened them because Carle had not marked the envelope as grand jury material. The State's Attorney asked the grand jury to turn those documents over to his office. Accordingly, on November 15, 2007, the grand jury released the materials from Carle to the Effingham County State's Attorney's office.



At the grand jury proceedings held on January 15, 2008, a special prosecutor with the appellate prosecutor's office presented evidence seeking an indictment against the defendant. Trooper Timothy Mehl testified regarding the accident of March 18, 2007, and the defendant's .104-serum-alcohol- concentration results. The special prosecutor requested the grand jury to issue a bill of indictment charging the defendant with two counts of aggravated DUI. Accordingly, on January 15, 2008, the defendant was indicted on two counts of aggravated DUI (625 ILCS 5/11-501(d)(1)(C) (West 2008)).



On September 16, 2008, the defendant moved to suppress the chemical-test evidence, which he alleged the State had obtained by misusing the grand jury's subpoena power. In his motion to suppress, the defendant alleged that the State had improperly acquired confidential medical information, including the result of the defendant's chemical analysis, by directing Carle to deliver the materials to the State through the use of the subpoena power of the grand jury.



In its motion in opposition to exclude the chemical-test evidence, the State asserted that, although some of the materials were misdelivered to the State's Attorney and he screened them prior to presentation to the grand jury, all materials obtained were derived from subpoenas which were properly issued by and returnable to the grand jury.



On November 10, 2008, after hearing evidence, the court by docket entry entered its order denying the defendant's motion to exclude the chemical-test evidence. In its order, the circuit court concluded that the defendant had failed to present sufficient evidence to establish an abuse of the grand jury subpoena power by the Effingham County State's Attorney. The court concluded that the blood-alcohol test results were obtained pursuant to a subpoena duly issued by the grand jury pursuant to its statutory powers, pursuant to a proper request by the State's Attorney. The circuit court concluded that the State's Attorney first requested the grand jury to issue the subpoena, made the subpoena returnable to the Effingham County grand jury, presented the documents obtained to the grand jury, and formally requested the release of the documents on each occasion. The circuit court concluded that no evidence was presented to demonstrate that the State's Attorney had acted in bad faith or had intentionally caused Carle to return the documents to the State's Attorney's office rather than to the grand jury.



*3 In its order, the circuit court further held that, unlike the grand jury subpoena challenged in People v. DeLaire, 240 Ill.App.3d 1012 (1993), the grand jury subpoenas were issued preindictment, in an effort to determine whether there was sufficient evidence to charge the defendant with felony DUI. The circuit court also held that, unlike People v. Wilson, 164 Ill.2d 436 (1994), and People v. Feldmeier, 286 Ill.App.3d 602 (1997), the State's Attorney did not attempt to circumvent the Effingham County grand jury but repeatedly appeared before it to keep it informed and to seek permission to act under its authority.



On February 17, 2009, the parties proceeded to a stipulated bench trial on a charge of misdemeanor DUI, with which the State, by information, had charged the defendant on February 12, 2009. At the stipulated bench trial, the State submitted that, if the case were to go to trial, it would present Trooper Mehl's testimony that the defendant's vehicle crossed the centerline of the highway and hit two vehicles and Ronald Thoele's testimony that he and the defendant were consuming alcohol on the night and early morning of March 17 and 18, 2007, and that he was driving a vehicle behind the defendant's vehicle when he saw the defendant's vehicle swerve sharply to the left and collide with the vehicles for no apparent reason. The State also would have presented the testimony of Beth Spence, a phlebotomist employed at Carle, who would have testified that she drew blood from the defendant on March 18, 2007, approximately 1 1/2 hours after the accident, and the State would have presented evidence from the technicians that this blood sample was tested and revealed a serum-alcohol- concentration level of .104 grams per deciliter. The State would also have introduced evidence from Dr. Daniel Brown, Ph.D., an expert in blood-alcohol analysis, who would have testified that, to a reasonable degree of medical certainty, the defendant's blood-alcohol- concentration level at the time of the collision was .109 grams per deciliter.



After the stipulated bench trial, the circuit court found the defendant guilty of DUI, a Class A misdemeanor (625 ILCS 5/11-501(a)(1) (West 2008)). On March 13, 2009, the defendant filed a motion for a new trial.



On May 15, 2009, the circuit court entered a judgment and sentenced the defendant to two years' probation, 60 days' home confinement, and 180 hours of community service, plus fines and court costs. On the same date, the circuit court denied the defendant's motion for a new trial. On June 12, 2009, the defendant filed a notice of appeal.



ANALYSIS

The defendant contends that the State's Attorney's misuse of the grand jury's subpoena power facilitated the State's Attorney's unauthorized access to the defendant's confidential medical information, including the lab report of the .104-serum-alcohol- concentration test result. The defendant argues that, as a result, the chemical evidence was inadmissible at the trial.



*4 “In determining whether a trial court has properly ruled on a motion to suppress, findings of fact and credibility determinations made by the trial court are accorded great deference and will be reversed only if they are against the manifest weight of the evidence.” People v. Slater, 228 Ill.2d 137, 149 (2008). “We review de novo, however, the ultimate question posed by the legal challenge to the trial court's ruling on a suppression motion.” Slater, 228 Ill.2d at 149.



“The grand jury has the power to issue subpoenas to obtain documents relevant to its inquiry when an individual is under investigation for a crime.” Wilson, 164 Ill.2d at 457; 725 ILCS 5/112-4(b) (West 2008). “Grand jury subpoenas are returnable to the grand jury, similar to how a witness, who is subpoenaed by the grand jury, must report to the grand jury.” Wilson, 164 Ill.2d at 457. “Issues of privilege and relevance of the documents are not relevant at the grand jury stage of an investigation, since the rules of evidence do not apply.” Wilson, 164 Ill.2d at 457-58. “The grand jury has the power to disclose subpoenaed documents to the State's Attorney for the purpose of the State's Attorney's furthering his responsibility of enforcing the law.” Wilson, 164 Ill.2d at 458.



“Except when investigating possible criminal conduct by the police themselves, the grand jury works in concert with the police to investigate alleged criminal behavior and to bring charges based thereon when probable cause exists to do so.” January 1996 Term Grand Jury, 283 Ill.App.3d 883, 891 (1996). “Further, the State's Attorney, who is the county's chief law enforcement officer, coordinates the work of the grand jury and the police.” January 1996 Term Grand Jury, 283 Ill.App.3d at 891.



“Article 112 of the Code of Criminal Procedure of 1963 (725 ILCS 5/112-1 et seq. (West 1994)), which governs grand jury proceedings, makes clear the close working relationship between the State's Attorney, the grand jury, and the police.” January 1996 Term Grand Jury, 283 Ill.App.3d at 891. Section 112-3(b) provides that the grand jury shall convene as ordered by the circuit court “on its own motion or that of the State's Attorney.” 725 ILCS 5/112-3(b) (West 2008). The Code of Criminal Procedure of 1963 also provides that “[t]he [g]rand [j]ury shall hear all evidence presented by the State's Attorney” (725 ILCS 5/112-4(a) (West 2008)) and has “the right to subpoena and question any person against whom the State's Attorney is seeking a[b]ill of [i]ndictment, or any other person, and to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State's Attorney” (725 ILCS 5/112-4(b) (West 2008)). A disclosure of matters before the grand jury, which would otherwise be prohibited, may be made to a State's Attorney for use in the performance of his duty and such government personnel as are deemed necessary by the State's Attorney in the performance of his duty to enforce state criminal law. 725 ILCS 5/112-6(c)(1) (West 2008).



*5 “The only limitation-if it even can be called that-on the State's Attorney's power to disclose grand jury proceedings to ‘government personnel’ (an intentionally broad term which, at a minimum, includes the police) is that the State's Attorney must promptly provide the court that impaneled the grand jury with the names of the persons to whom such disclosure has been made.” January 1996 Term Grand Jury, 283 Ill.App.3d at 891-92; 725 ILCS 5/112-6(c)(2) (West 2008).



The broad investigative power of the grand jury has been described as follows:



“The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether probable cause that a crime has occurred exists. The grand jury can investigate merely on a suspicion that the law is being violated or even just because it wants assurance that it is not. [Citation.] * * * The State is not required to justify the issuance of a subpoena by establishing probable cause because the very purpose of the request is to ascertain whether probable cause exists.” DeLaire, 240 Ill.App.3d at 1021.



In Wilson, 164 Ill.2d at 457, the defendant claimed that the State's Attorney abused the grand jury's subpoena power to obtain his records. “The State's Attorney served a subpoena on the McLean County Center for Human Services for production of all clinical records regarding defendant. The subpoena and records were made returnable to the State's Attorney's office, rather than to the grand jury. The subpoena stated that the records were needed by the grand jury in the investigation of a homicide and that the records were related directly to the immediate circumstances of a homicide. The subpoena was not prepared at the direction of the grand jury, but at the direction of the State's Attorney. The State's Attorney claimed that he acted ‘in anticipation of the grand jury's consideration of matters under investigation’ when issuing the subpoenas. The records were never shown to the grand jury.” Wilson, 164 Ill.2d at 457.



The Illinois Supreme Court in Wilson concluded that the State's Attorney misused the grand jury process in obtaining the subpoenas, by substituting his authority to obtain subpoenas for that of the grand jury and by not requiring that the documents be returnable to the grand jury. The court held, however, that the defendant was not prejudiced by the process used to obtain his mental health records because if the proper procedures would have been followed, the State's Attorney could still have received the documents from the grand jury. Wilson, 164 Ill.2d at 458.



In the present case, as held by the circuit court, the case for a misuse of the grand jury process is not persuasive because the grand jury subpoenas were issued by the grand jury preindictment ( cf. DeLaire, 240 Ill.App.3d at 1021 (the postindictment use of a grand jury subpoena duces tecum, to acquire material the State should have obtained through formal discovery procedures, was held to be improper)), the documents were returnable to the grand jury ( cf. Wilson, 164 Ill.2d at 457 (“[t]he subpoena and records were made returnable to the State's Attorney's office”)), and the State's Attorney did not attempt to circumvent the grand jury but repeatedly appeared before it to keep it informed and to seek permission to act under its authority ( cf. Wilson, 164 Ill.2d at 457 (“[t]he records were never shown to the grand jury”)).



*6 However, if we were to conclude that the State's Attorney misused the grand jury process in acquiring the subpoenas, as in Wilson, the defendant here was not prejudiced by the process used to obtain his medical records. See Wilson, 164 Ill.2d at 458. If the allegedly improper procedures had not occurred, the State's Attorney could still have received the documents from the grand jury. See People v. Popeck, 385 Ill.App.3d 806, 811 (2008) (because access to the defendant's medical records for the date of his alleged DUI offense was relevant, material, and not privileged, the subpoena was sufficiently limited in scope and should have been granted).



Indeed, the Illinois Vehicle Code provides that the results of blood tests performed to determine alcohol content in a person receiving treatment in a hospital emergency room for injuries resulting from a motor vehicle accident may be disclosed to the Department of State Police or local law enforcement agencies upon a request, and the confidentiality provisions of law pertaining to those medical records and medical treatment shall not be applicable with regard to those tests. 625 ILCS 5/11-501.4(a) (West 2008); People v. Jung, 192 Ill.2d 1, 5 (2000) (when a person obtains a driver's license, he consents to conditions imposed by the legislature in exchange for that privilege, including the conditions imposed under statute allowing the results of physician-ordered blood or urine tests conducted in the course of emergency treatment for injuries resulting from a motor vehicle accident to be reported directly to state or local law enforcement officials, and a waiver of a driver's privacy interest in his blood or urine test results in this situation is reasonable and does not violate his constitutional right to privacy); People v. Nohren, 283 Ill.App.3d 753, 762 (1996) (the health care practitioner- patient privilege set forth in section 8-802 of the Code of Civil Procedure (735 ILCS 5/8-802 (West 1994)) permits the disclosure of the defendant's blood-alcohol tests in DUI prosecutions, pursuant to section 11-501.4 of the Illinois Vehicle Code (625 ILCS 5/11-501.4 (West 1994))). Accordingly, we cannot conclude that the defendant was prejudiced by the process used to obtain his blood-alcohol test records. See Wilson, 164 Ill.2d at 458.



In arguing that the State's Attorney obtained unauthorized access to the defendant's confidential medical information with an allegedly invalid grand jury subpoena, the defendant seems to intimate that the State's conduct violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (45 C.F.R. § 164.512 et seq. (2005)). However, HIPAA does not create a privilege for patients' medical information; it merely provides the procedures to follow for the disclosure of that information from a “covered entity.” United States v. Bek, 493 F.3d 790, 802 (7th Cir.2007); Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 925-26 (7th Cir.2004). Although HIPAA provides for penalties against entities that fail to comply with its provisions (42 U.S.C. §§ 1320d-5, 1320d-6 (2006)), law enforcement agencies, including the office of the State's Attorney, are not covered entities under HIPAA. See 45 C.F.R. §§ 160.102, 164.104, 164.502(a) (2005) (a “covered entity” is defined to include health care plans, health care clearinghouses, and health care providers); see generally Coy v. Washington County Hospital District, 372 Ill.App.3d 1077, 1081 (2007) (the application of HIPAA's privacy rule is limited to health plans, health care clearinghouses, and qualified health care providers, each of which is defined as a “covered entity”).



*7 Even if the grand jury subpoena had been insufficient pursuant to HIPAA's law enforcement exception (45 C.F.R. § 164.512(f)(1) (ii)(B) (2005) ( a health care provider may disclose protected health information to a law enforcement official “[i]n compliance with and as limited by the relevant requirements of * * * [a] grand jury subpoena”)), the defendant fails to cite any authority which compels that medical information so obtained must be suppressed, and HIPAA does not contain that remedy. See State v. Eichhorst, 879 N.E.2d 1144, 1154-55 (Ind.App.2008) (HIPAA does not provide that evidence given in violation of HIPAA should be suppressed or excluded in a criminal setting); State v. Straehler, 307 Wis.2d 360, 368, 745 N.W.2d 431, 435 (2007) (“HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation”); State v. Downs, 923 So.2d 726, 731 (La.App.2005) (noting that the district attorney's office is not a “covered entity” under HIPAA and stating that “if relator's complaint is that a HIPAA violation occurred, relator should file a complaint against the covered entity that disclosed the information”); see also United States v. Zamora, 408 F.Supp.2d 295, 298 (S.D.Tex.2006) (HIPAA was not intended to be a means for evading criminal prosecution) . Further, the defendant did not argue that HIPAA provided a basis for suppression in the trial court below. See People v. O'Neal, 104 Ill.2d 399, 407 (1984) (issues not raised in the trial court are generally considered waived on appeal).



Consequently, we affirm the circuit court's order denying the defendant's motion to suppress the defendant's serum-alcohol- concentration test results.



CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court of Effingham County.



Affirmed.



GOLDENHERSH, P.J., and STEWART, J., concur.





Ill.App. 5 Dist.,2010.
People v. Bauer
--- N.E.2d ----, 2010 WL 2780426 (Ill.App. 5 Dist.)

San Diego DUI criminal defense attorneys are told of this case in which the court said no reasonable suspicion for DUI:

1. where a DUI officer finds an abandoned vehicle, which had previously been reported as being driven with sparks flying from it, and

2. the owner-defendant was subsequently located at home - and DUI.

The lack of a timeline between the driving and the intoxication caused the State to fail its burden of proof.



Commonwealth Court of Pennsylvania.

Jerome DEMARCHIS, Appellant
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.

No. 1948 C.D.2009.

Submitted Feb. 19, 2010.
Decided June 29, 2010.

Nicholas M. Mancini, Newtown, for appellant.

Terrance M. Edwards, Asst. Counsel and Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellee.

BEFORE: McGINLEY, Judge, and BROBSON, Judge, and FLAHERTY, Senior Judge.



OPINION BY Judge BROBSON.



*1 Jerome Demarchis (Licensee) appeals an order of the Court of Common Pleas of Bucks County (trial court). The trial court denied Licensee's appeal of an order of the Department of Transportation, Bureau of Driver Licensing (DOT), which suspended Licensee's operating privileges based upon his refusal to submit to chemical testing at the request of a police officer. We reverse. FN1



FN1. This Court's standard of review of a trial court order upholding a license suspension for refusal to submit to chemical testing is limited to considering whether the trial court's findings are supported by competent evidence and whether the court erred as a matter of law or abused its discretion. Banner v. Dep't of Transp ., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).



By letter dated May 15, 2009, DOT sent a notice of suspension to Licensee, indicating that, based upon his refusal to submit to chemical testing, his license would be suspended for eighteen months under section 1547(b)(1)(ii) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(ii). Licensee appealed to the trial court, which entered an order on June 8, 2009, setting a date for hearing and noting that the appeal acted as a supersedeas of the suspension pending the trial court's resolution of the appeal. The trial court held a hearing on September 2, 2009.



At the hearing, DOT had the burden of proving the following elements in support of its decision to suspend Licensee's driving privileges: (1) a police officer arrested a licensee based upon reasonable grounds to believe that the licensee was driving under the influence of alcohol; (2) the officer asked the licensee to submit to chemical testing; (3) the licensee refused to submit to such testing; and (4) the officer provided a warning to the licensee that his failure to submit to testing would result in the suspension of his license. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999) (emphasis added). DOT called one witness at the hearing-the investigating and arresting police officer, Officer Gary Forrester (Officer Forrester) of the Solebury Township Police Department. Licensee did not call any witnesses and did not testify. The sole question before the Court is whether DOT proved that Officer Forrester had reasonable grounds to believe that Licensee had operated his vehicle while under the influence of alcohol.



The facts, as drawn from the trial court's opinion and the record, are as follows. On the evening of April 3, 2009, Officer Forrester responded to a report of a black SUV or Hummer with sparks flying from the front of the vehicle. The dispatcher also advised Officer Forrester “that it was a possible DUI driver.” (Reproduced Record (R.R.) 41 a.) Officer Forrester located a vehicle matching the description parked in the area of Aquetong and River Roads near the border of Solebury Township and Upper Makefield Township. The vehicle was abandoned. Officer Forrester investigated further and learned from dispatch the name and address of the vehicle's owner-Licensee. Officer Forrester proceeded to Licensee's residence, which was nearby, learning en route that police officers from Upper Makefield Township had arrived at the home and were with Licensee. (R.R. 42a.)



When Officer Forrester arrived at Licensee's home, he observed Licensee and noted that he had bloodshot eyes, walked with a staggered gait, was unsteady, and slurred his words. Additionally, Officer Forrester observed that Licensee had a “bracelet” around his wrist, indicating that he had been at nightclub called Havana's, which is a drinking establishment. Officer Forrester indicated that the other police officers noted that Licensee had tried to cut off the wristband while they were with him in his kitchen. Officer Forrester testified that the two other officers told him that, when they asked Licensee who had been driving Licensee's car, Licensee responded that a friend had driven the car, but that he did not know his friend's name. Officer Forrester did not conduct a field sobriety test, but he did ask Licensee to recite the alphabet. He also asked Licensee if he had been driving his vehicle. Licensee did not respond to either the request or the question.



*2 Minutes after midnight on April 4, 2009, Officer Forrester arrested Licensee and placed him in his patrol vehicle. Officer Forrester read Licensee Implied Consent form DL-26 and then asked Licensee if he would agree to submit to a blood alcohol test. Licensee declined. Officer Forrester drove Licensee to St. Mary's Medical Center and again asked Licensee if he still refused to submit to testing, and Licensee responded “Yes.” Then Officer Forrester drove Licensee to the police station.



Based on these record facts, the trial court reasoned that Officer Forrester had reasonable grounds to believe that Licensee had been driving his vehicle while intoxicated: “Given all the surrounding circumstances, a reasonable person could conclude that Appellant, returning from an area nightclub, was driving his truck while intoxicated before abandoning the sparking vehicle on River Road, not far from his home.” (R.R. 33a.)



The question of whether reasonable grounds existed is a question of law, which this Court reviews in a plenary fashion and on a case-by-case basis. Dep't of Transp., Bureau of Driver Licensing v. Malizio, 618 A.2d 1091 (Pa.Cmwlth.1992). This Court summarized the applicable test for determining whether a police officer had reasonable grounds in Department of Transportation, Bureau of Driver Licensing v. Dreisbach, 363 A.2d 870, 872 (Pa.Cmwlth.1976) (footnotes omitted), as follows:



Whether evidence is sufficient to constitute “reasonable grounds” can only be decided on a case-by-case basis. The test, however, is not very demanding. We note initially that, for “reasonable grounds” to exist, the police officer obviously need not be correct in his belief that the motorist had been driving while intoxicated. We are dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such a test. The only valid inquiry on this issue at the de novo hearing is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle under the influence of intoxicating liquor. Thus, it is not relevant that the motorist later, at the time of trial, can establish a cause other than intoxication for such observed behavior as slurred speech or an unsteady gait. At trial, the only relevant factual defense would be a showing that the motorist's behavior was not, in fact, as the officer testified.


An officer's belief that a licensee was operating a vehicle while under the influence of alcohol or a controlled substance must only be objective in light of the surrounding circumstances. Zwibel v. Dep't of Transp., Bureau of Driver Licensing, 832 A.2d 599 (Pa.Cmwlth.2003).

As our Supreme Court stated in Banner, “the court must consider the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police.” Banner, 558 Pa. at 447, 737 A.2d at 1207 (emphasis added). On several occasions, this Court has been asked to determine whether a police officer had reasonable grounds to suspect a DUI violation where the officer did not actually witness the licensee operating the vehicle. In Marone v. Commonwealth, Department of Transportation, 990 A.2d 1187 (Pa.Cmwlth.2010), we found that a police officer had reasonable grounds to believe that the licensee had been operating or in control of the vehicle where the police officer found the licensee in the driver's seat of his parked vehicle with the engine running and the lights on. In Fierst v. Commonwealth, 539 A.2d 1389 (Pa.Cmwlth.1988), a witness advised police that the licensee had been involved in an accident. Police, however, did not arrive at the suspected drunk driver's home until about an hour after the accident, at which time they witnessed him drinking and in an apparent state of intoxication. This Court found that, under those circumstances, the police officer did not have reasonable grounds to believe that the licensee was driving while under the influence of alcohol. Fierst, 539 A.2d at 267-68.



*3 In Keane v. Commonwealth, Department of Transportation, 561 A .2d 359 (Pa.Cmwlth.1989), testimony adduced at trial supported a close succession of events between the time of an automobile accident and the arrival of police at the home of the licensee to investigate a reported domestic assault. This Court thus concluded that the police officer had reasonable grounds to believe that the licensee was operating his vehicle while under the influence of alcohol. Keane, 561 A.2d at 361. In McCallum v. Commonwealth, 592 A.2d 820 (Pa.Cmwlth.1991), the licensee had been involved in a vehicle accident and left the scene. Before leaving the scene, however, he reportedly admitted to two people who had witnessed the accident that he had been drinking. Based on this witness testimony, the arresting officer met up with the licensee approximately 30 to 40 minutes after the accident and observed that the licensee had slurred speech, smelled of alcohol, and appeared glassy-eyed. This Court gave particular significance to the witness testimony that the licensee had admitted drinking that evening and affirmed the trial court's finding that the police officer had reasonable grounds to request that the licensee submit to testing. McCallum, 592 A.2d at 822-23.



More recently, in Stahr v. Department of Transportation, 969 A.2d 37 (Pa.Cmwlth.2009), a Pennsylvania State Police trooper responded to an accident scene. With the vehicle abandoned, the trooper located the licensee at his home using vehicle registration information. When questioned by the trooper, the licensee admitted to driving the vehicle. At this point, the trooper noticed that the licensee smelled of alcohol, had slurred speech, and had an unsteady gait. The licensee admitted that he had been consuming alcohol that evening. The trooper placed the licensee under arrest and asked him to submit to chemical testing. The licensee refused. The trial court, following a hearing, concluded that the trooper had reasonable grounds to suspect the licensee had operated his vehicle while under the influence of alcohol. We reversed, noting the absence of any evidence in the record of a timeframe between accident and arrest or some other objective evidence to support the trooper's conclusion that the licensee had been under the influence at the time of the accident:



At no time during his testimony did Officer Brown indicate any timeframe between the accident and the time he encountered Stahr. In other cases where the Court found a police officer had or did not have reasonable suspicion of DUI, where the arrestee was not found in his car, a timeframe between the arrestee's operation of the car and subsequent arrest, or some other evidence, such as witness accounts of the DUI, were established in the record.



Officer Brown could not reasonably conclude that Stahr was driving under the influence simply because he showed signs of intoxication when he exited the state trooper's vehicle without further establishing the timeframe between the accident and the observed intoxication. No timeframe between the accident and arrest was established according to the evidence provided to the trial court. We cannot, therefore, conclude that Officer Brown had reasonable suspicion that Stahr was in control of his vehicle while under the influence of alcohol. Since there was no objective evidence to support Officer Brown's suspicion that Stahr was driving under the influence, the order of the trial court is reversed, and Stahr's operating privileges are reinstated.


*4 Stahr, 969 A.2d at 40-41 (citations omitted).

Here, the record supports a finding that police had reasonable grounds to believe that Licensee was under the influence of alcohol when they arrived at his home in the late evening hours of April 3, 2009, or early morning hours of April 4, 2009. The record also supports a finding that police had reasonable grounds to believe that Licensee had been drinking at a local club earlier that evening and had made his way home. The record also supports a finding that police had reasonable grounds to believe that Licensee's vehicle had been used that evening. Licensee contends, however, that this is the extent of the conclusions that can be reached from the evidence DOT presented during the hearing. Specifically, Licensee disputes the trial court's finding that police had reasonable grounds to believe that Licensee was driving his vehicle in an intoxicated state at the time it was abandoned. On this record, we agree.



We find no objective evidence in the record to support Officer Forrester's suspicion that Licensee had been operating or was in control of his vehicle at the time it was abandoned. Indeed, the record shows that Licensee denied operating his vehicle that evening, and this is not a case, like McCallum, where eyewitnesses placed Licensee in the vehicle. Nevertheless, even if there were objective evidence in the record to support such a suspicion, we are still faced with the absence of any record evidence to establish a period between the time the vehicle had been abandoned and Licensee's arrest. The lack of a time line is a troubling aspect of this case. There is simply no way to infer or estimate the length of time between the initial notice from the dispatch and arrest based solely on Licensee's apparent attendance at some undetermined time at a nightclub, his alleged driving at an undetermined time, and his abandoning his vehicle at yet another undetermined time.



In the cases upon which Licensee relies and which DOT seeks to distinguish, some of which are cited herein, there was at least some indicia of a limited time period between the incident at issue and police observations of the licensee or other objective evidence, such as eyewitness testimony, to support the request that the licensee submit to testing. Based on prior rulings from our Court, this type of objective evidence is necessary to support a reasonable grounds determination where the arresting officer did not witness the licensee actually operating the vehicle and where, as in this case, the vehicle is abandoned and the arresting officer catches up with the licensee at another location.



Based upon the foregoing discussion, we reverse the trial court's order.



ORDER

AND NOW, this 29th day of June, 2010, the order of the Court of Common Pleas of Bucks County is reversed.



Pa.Cmwlth.,2010.
Demarchis v. Commonwealth, Dept. of Transp., Bureau of Driver Licensing
--- A.2d ----, 2010 WL 2572860 (Pa.Cmwlth.)