DUI videotape in San Diego? Criminal Defense Attorneys wish.

This driver was pulled over for allegedly failing to maintain the lane, and spinning his tires. The DUI / drunk driving court denied the motion to suppress.

The DUI / drunk driving driver appealed, contending the DUI / drunk driving videotape impeached the DUI / drunk driving officer's testimony, and established that the DUI / drunk driving stop was illegal.

DUI / drunk driving appellate court did not find the tape impeaching.

DUI / drunk driving court also held that, even if the tape was inconsistent, the DUI / drunk driving judge was free to either believe the DUI / drunk driving cop or the DUI / drunk drivingvideotape, stating:

"[A]ny conflicts in the evidence as to the manner in which a defendant was driving is a credibility issue for the fact finder. (citations) We have no basis to second guess the trial court's factual findings where they are based on testimonial evidence, i .e. the testimony of Officer Hall, which the trial court was entitled to credit. (citation) Since there is evidence to support the court's finding of reasonable articulable suspicion for the traffic stop, the trial court's ruling denying Polk's motion to suppress was not clearly erroneous." (internal quotations omitted)

--- S.E.2d ----, 2010 WL 3326741 (Ga.App.)

Court of Appeals of Georgia No. A10A1472.

Aug. 25, 2010.

Background: Defendant was convicted following stipulated bench trial in the trial court of driving under the influence of alcohol-less safe and failure to maintain lane. Defendant appealed.

Holding: The Court of Appeals, Miller, C.J., held that officer had reasonable articulable suspicion supporting traffic stop.

Affirmed
*1 Following a stipulated bench trial,FN1 the trial court found Christopher D. Polk guilty of driving under the influence of alcohol-less safe ( OCGA § 40-6-391(a)(1)) and failure to maintain lane ( OCGA § 40-6-48(1)). FN2 On appeal, Polk challenges the denial of his motion to suppress. Finding no error, we affirm.

[1] Headnote Citing References In reviewing a trial court's decision on a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Footnote omitted.) Stearnes v. State, 261 Ga.App. 522, 524(2), 583 S.E.2d 195 (2003).

So viewed, the evidence adduced at the hearing on the motion to suppress shows that on October 13, 2007, Forsyth County Officer Christopher Hall was travelling northbound on Post Road near the Vickery subdivision when he observed Polk's vehicle pull out of the subdivision. As Polk entered the intersection at Majors Road, the vehicle's tires were “spinning” as the vehicle “kicked its rear end sideways to the right” and abruptly turned on to Post Road, in a northbound direction. As he did so, Polk failed to maintain his lane as he entered Post Road. The officer followed Polk's vehicle and observed it travel over the right-hand side of his lane and on top of the fog lane, then weave across to the center line and on top of it, breaking “the [plane] of the outermost edge of the center line.” During this maneuver, Polk struck at least one lane marker before drifting back over to, and on top of, the fog line. After Polk's vehicle weaved a second time in this manner and made an abrupt stop before making a wide turn on to Bentley Road, the officer stopped Polk for failure to maintain lane and “laying drags .” The officer asked Polk to step out of the vehicle and had him perform field sobriety tests. Based on his performance, Polk was arrested for driving under the influence of alcohol. A videotape of the traffic stop was admitted into evidence.
At the bench trial, Polk stipulated that the evidence was sufficient to support a conviction on the driving under the influence of alcohol-less safe charge but challenged the lawfulness of the traffic stop.

[2] Headnote Citing ReferencesIn his sole enumeration of error, Polk argues that the trial court erred in denying his motion to suppress because the stop of his vehicle was pretextual and lacked reasonable articulable suspicion of criminal activity. We disagree.

[3] Headnote Citing References[4] Headnote Citing References“In order to justify stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Footnote and punctuation omitted.) Stearnes, supra, 261 Ga.App. at 524(2), 583 S.E.2d 195. To determine if an investigatory stop is unreasonably pretextual, “the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” (Citation and punctuation omitted.) Allenbrand v. State, 217 Ga.App. 609, 610(1), 458 S.E.2d 382 (1995).

*2 Here, the arresting officer testified that he stopped Polk for failure to maintain lane and “laying drags,” which the trial court found to provide reasonable articulable suspicion for the traffic stop. Pretermitting whether Polk committed the offense of “laying drags,” we conclude that the totality of the circumstances supports the trial court's findings.

Construing the evidence in the light most favorable to the trial court's finding, there was evidence that Polk failed to maintain his lane. OCGA § 40-6-48(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”). Here, Polk violated OCGA § 40-6-48(1) based on evidence that he twice crossed over the center line on Post Road and “broke the [plane] of the outermost edge of the center line.” Further, Polk was also weaving within his lane and struck a lane marker, and the officer deemed the entirety of Polk's driving to be unsafe. Steinberg v. State, 286 Ga.App. 417, 419(1), 650 S.E.2d 268 (2007) (“weaving without reason into nearby lanes violates OCGA § 40-6-48(1) and justifies a stop”) (footnote and punctuation omitted.); Allenbrand, supra, 217 Ga.App. at 610(1), 458 S.E.2d 382 (officer's stop of defendant was not pretextual where evidence showed that defendant weaved several times within its lane of travel, onto the center line, then jerked back into its lane of travel).

Further, other factors such as the abrupt manner in which Polk pulled out of the subdivision and “kicked its rear end sideways to the right,” his spinning tires, and the abrupt stop he made before turning on to Bentley Road provided the officer sufficient reasonable articulable suspicion to stop Polk. See Ivey v. State, 301 Ga.App. 796, 797-798, 689 S.E.2d 100 (2009) (stop was justified based on defendant's erratic driving by braking for no reason, abruptly turning back into the parking lot he exited, and drifting from the left side of his lane to the right side such that his rear view mirror crossed into the fog line); see also Veal v. State, 273 Ga.App. 47, 49, 614 S.E.2d 143 (2005) (“The conduct forming the basis of the reasonable suspicion need not be a violation of the law.”) (footnote omitted).

[5] Headnote Citing ReferencesNotwithstanding Polk's argument to the contrary, the videotape is not inconsistent with the officer's testimony regarding a violation of OCGA § 40-6-48(1) and that Polk weaved within his lane. Even were it otherwise, any conflicts in the evidence as to the manner in which a defendant was driving is a credibility issue for the fact finder. See Childress v. State, 251 Ga.App. 873, 874(1), 554 S.E.2d 818 (2001); see also Steinberg, supra, 286 Ga.App. at 418-419(1), 650 S.E.2d 268 (although the facts were disputed, there was evidence to support the trial court's finding that defendant twice crossed the centerline). We have no basis to “second guess the trial court's factual findings where they are based on testimonial evidence[,]” i .e. the testimony of Officer Hall, which the trial court was entitled to credit. Jackson v. State, 297 Ga.App. 615, 677 S.E.2d 782 (2009). Since there is evidence to support the court's finding of reasonable articulable suspicion for the traffic stop, the trial court's ruling denying Polk's motion to suppress was not clearly erroneous.

*3 Judgment affirmed.

FN1. Counsel for the parties stipulated that the evidence was sufficient to support Polk's conviction of driving under the influence of alcohol-less safe. OCGA § 40-6-391(a)(1).

FN2. The State dismissed the offense of “laying drags” (OCGA § 40-6-251) prior to the bench trial.

Ga.App.,2010.
Polk v. State
--- S.E.2d ----, 2010 WL 3326741 (Ga.App.)

San Diego DUI Criminal Defense Lawyers know that an administrative hearing regarding one's driver's license can be as important as the actual drunk driving case; in some cases, more important. So DUI Criminal Defense Attorneys have to deal with ever-changing DUI & DMV laws.

There's often a question of if a change of the administrative rules governing the administration of alcohol/drug testing is to be applied retroactively, or prospectively?

This DUI Criminal Defense Lawyer filed a motion in limine to prevent the results of the urine sample from being introduced into evidence. The Drunk Driving Criminal Defense Attorney argued that at the time of the offense and when the urine sample was taken, the police administrative rules set forth procedures that provided that the urine sample may be collected only by the arresting officer, another law enforcement officer, or an agency employee.

The DUI Criminal Defense Lawyer contended that a nurse, and not an authorized person, took the urine sample. Subsequent to the collection of the sample, but prior to trial, the rules were amended to add nurses to the list of authorized persons. If the amendment was only applied prospectively, the test would be suppressed. If retroactive, the test would be admissible. The defendant argued that applying such a rule retroactively would violate ex post facto clauses of both state and federal constitutions.

A DUI or other law is retroactive if it applies to events that occurred before the law was enacted. Morris, 394 Ill.App.3d at 680. A law is disadvantageous to the defendant if it (1) criminalizes an act that was innocent when done, (2) increases the punishment for an offense previously committed, or (3) alters the rules of evidence to make a conviction easier, by making “ ‘ “substantive change[s] in the evidence needed to convict for the particular crime in question. The appellate court found no ex post facto violation, stating that “The ex post facto clause, however, does not limit the legislature's control of remedies or modes of procedure if they do not affect matters of substance; an amendment that affects only procedural matters and not substantive rights will be applied retroactively as well as prospectively."

Additionally, the appellate court held that the entire rule governing collection of the sample by only certain persons was an invalid exercise of the Department's rulemaking authority. "The legislature delegated authority to the Department of State Police to promulgate ‘standards' for blood and other tests, for the purpose of ensuring the validity of the test results." *** "The urine sample cannot have been more reliable if it was taken by a police officer rather than a nurse whose medical training far exceeded that of the police officer, especially if the officer was present to observe and authenticate the sample. The requirement of having a police officer instead of medical personnel obtain the urine cannot be to ensure the validity of the tests. Since this regulation also exceeds the authority delegated in the statute, the failure to comply with the Administrative Code cannot have been error.".

--- N.E.2d ----, 2010 WL 3172230 (Ill.App. 5 Dist.)


Appellate Court of Illinois,

Fifth District.

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

No. 5-09-0327.

Aug. 6, 2010.

Appeal from the Circuit Court of Franklin County, No. 07-CF-32, E. Kyle Vantrease, Judge, presiding.

Justice WELCH delivered the opinion of the court:

*1 Following a bench trial, the defendant, William D. Sprind, Jr., was found guilty of four counts of aggravated driving under the influence of alcohol, other drug or. drugs, or intoxicating compound or compounds, or any combination thereof, in violation of section 11-501(d) of the Illinois Vehicle Code (625 ILCS 5/1 l-501(d) (West 2008)), and one count of reckless homicide, in violation of section 9-3(a) of the Criminal Code of 1961 (720 ILCS 5/9-3(a) (West 2008)). The circuit court of Franklin County sentenced the defendant to a 14-year term of imprisonment. On appeal the defendant raises the following issues: (1) whether the defendant received ineffective assistance at the trial and (2) whether the amendment of sections 1286.320(c) and 1286.330(b) of Title 20 of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm.Code § 1286.320(c), amended at 31 Ill. Reg. 15111, eff. October 29, 2007; 20 Ill. Adm.Code § 1286.330(b), amended at 31 Ill. Reg. 7321, eff. May 1, 2007) constitute ex post facto laws in violation of the United States and Illinois Constitutions. For the following reasons, we affirm.



On January 23, 2007, the defendant was driving his truck northbound on Illinois Route 37 at a high rate of speed, passing onto the shoulder and into the oncoming southbound traffic lane. The defendant attempted to pass several vehicles and ran directly into the vehicle of the victims, Troy and Myrtle Holt. As a result of the collision, Mrs. Holt died. Mr. Holt was unconscious for three weeks, on a ventilator for six weeks, hospitalized for months, and then placed in a nursing home. The defendant was also injured in the collision. At the hospital, a nurse, in the presence of Illinois State Trooper Robert Reynolds, obtained a urine specimen from the defendant. Another nurse, also in Trooper Reynolds' presence, swabbed the defendant's arm and drew blood. The blood and urine tests revealed that the defendant had levels of cocaine high enough to be fatal. He also had cannabis and numerous prescription medications in his system.



On October 5, 2007, defense counsel filed a motion in limine to prevent the results of the urine sample from being introduced into evidence. Defense counsel argued that at the time of the offense and when the urine sample was taken, section 1286.330(b) of Title 20 of the Administrative Code (20 Ill. Adm.Code § 1286.330(b), amended at 28 Ill. Reg. 10040, eff. June 30, 2004) set forth procedures that provided that the urine sample may be collected only by the arresting officer, another law enforcement officer, or an agency employee. Defense counsel noted that a nurse, and not an authorized person, took the urine sample. Therefore, defense counsel argued that the police failed to comply with the Administrative Code provision in effect at the time the urine sample was taken. Defense counsel noted that effective May 1, 2007, section 1286.330 had been amended to add hospital nurses to the list of those who are authorized to take urine samples.



*2 On November 15, 2007, defense counsel filed a motion to suppress the results of the blood test. Defense counsel noted that at the time of the collision, section 1286.320(c) of Title 20 of the Administrative Code (20 Ill. Adm.Code § 1286.320(c), amended at 28 Ill. Reg. 10039, eff. June 30, 2004), regarding blood draws, stated, “A disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected.” Defense counsel argued that the blood-test kit violated procedure because the nurse had used a swab that contained alcohol to cleanse the defendant's skin. Accordingly, defense counsel argued that the results of the blood draw should be inadmissible. Shortly after the collision, effective October 29, 2007, section 1286.320(c) was amended to read, “The blood sample should be drawn using proper medical technique.” 20 Ill. Adm.Code § 1286.320(c), amended at 31 Ill. Reg. 15111, eff. October 29, 2007.



A hearing was held on the motion to suppress and the motion in limine on May 16, 2008, and the trial court entered a written order on June 12, 2008, denying the motion to suppress and the motion in limine. As to the urine sample, the court noted that the regulations required the police officer to be able to authenticate the sample. Because Trooper Reynolds was present when the nurse drew the sample, he was able to authenticate the sample pursuant to the regulations. Moreover, the trial court held the amendment of section 1286.330(b) to be procedural rather than substantive and concluded that the regulations could be applied retroactively. As to the blood sample, the court noted that the defendant had not argued that the sample was tainted or that the results were invalid. The court then noted that the regulation had recently been found invalid and noted that the results could not be inadmissible for a failure to comply with an invalid regulation. Furthermore, the trial court held that the amendment of section 1286.320(c) was procedural rather than substantive and found that the current regulation could be applied retroactively.



Thereafter, the defendant suffered a stroke on September 22, 2008. As a result, defense counsel filed a motion for a fitness examination on September 30, 2008. A week later on October 6, 2008, the defendant had recovered enough to be present in court at a pretrial conference. On November 3, 2008, defense counsel withdrew his motion for a fitness examination. Defense counsel noted that the motion had been based solely on the stroke. He also noted that the defendant was going to have a neurological examination: “[It will] basically tell us most of what we need to know about whether or not I am going to re [ ]file a motion for fitness.” Defense counsel stated further, “When I have the results of that, then we will contemplate either filing or not filing a future motion.” The trial court noted that up to that point the defendant had not raised a bona fide doubt regarding his fitness to stand trial.



*3 On January 16, 2009, the defendant waived his right to a jury trial. The trial court noted that defense counsel had previously raised the issue of the defendant's fitness to stand trial but had withdrawn it. Defense counsel stated, “[A]t this present time we are not raising that issue, and we don't anticipate it, and[-]assuming there is [ sic ] no new medical developments.” The trial court noted, “[F]rom my observation of Mr. Sprind, he also appears to be fully aware of what is occurring today and appears to be fit to stand trial.”



A stipulated bench trial was held on January 29, 2009. Evidence presented at the trial included seven drivers who had witnessed the defendant driving at a high rate of speed, erratically all over the road, and attempting to pass numerous vehicles before striking the victims' vehicle head-on.



Duke Dixon would have testified that he was an employee of Mercy Regional working as an emergency medical technician (EMT). On January 23, 2007, he responded to a crash on Illinois Route 37 north of West Frankfort. He provided treatment to the defendant, and in the course of the treatment he had to cut the defendant's pants, and a number of white pills fell from the left pocket of the defendant's pants. He collected these pills with a rubber glove and handed them to Trooper Reynolds.



Kim Bauser would have testified that she was an EMT and a phlebotomist employed by Good Samaritan Hospital in Mount Vernon, Illinois. She worked on January 23, 2007, and assisted Trooper Reynolds to secure blood samples from the defendant. She collected two vials of blood from the defendant, using vials contained in the Illinois State Police DUI kit. She would have further testified that the blood drawn from the defendant was drawn using proper medical technique, that the blood was drawn in the presence of Trooper Reynolds, and that the vials were handed to Trooper Reynolds when they were filled.



Kristina Lorenzini would have testified that she was a registered nurse employed by Good Samaritan Hospital in Mount Vernon, Illinois. She worked on January 23, 2007, and she was the attending nurse to the defendant while he was in the emergency room. She assisted Trooper Reynolds in collecting a urine sample from the defendant. The urine sample was collected in a new, plastic urinal, in the presence of Trooper Reynolds, and was immediately handed to Trooper Reynolds. She would have also testified that while attending to the defendant, she discovered a Vicodin pill lying next to the defendant's right side. She gave this pill to Trooper Reynolds.



Illinois State Police Trooper Reynolds would have testified that he was dispatched to a two-car accident on Illinois Route 37, north of West Frankfort, on January 23, 2007. While on the scene, he spoke to witnesses and collected 17 1/2 pills from EMT Duke Dixon. He would also have testified that he had Kim Bauser and Kristina Lorenzini assist him in collecting the blood and urine samples from the defendant. He would have testified that these samples were properly sealed, labeled, and secured in the DUI kit. He would have also testified that Kristina Lorenzini gave him one white pill and that he located three more of those pills in the right front pocket of the defendant's pants.



*4 Illinois State Police Special Agent Farrin Melton would have testified that he had interviewed the defendant in the hospital shortly after the crash. The defendant admitted to taking one Vicodin pill earlier that morning. The defendant claimed that he had not taken any other legal or illegal drugs or alcohol. He would further testify that the defendant had told him that the victims' vehicle swerved into his lane, causing the collision.



Dr. Kok would have testified that she is a forensic scientist working in the Illinois State Police crime lab, toxicology section. She had performed the analysis of the blood and urine samples. At this point, defense counsel renewed his objection to the admittance into evidence of the blood and urine samples. The trial court overruled the objection in accordance with the previous rulings on the motion to suppress and the motion in limine. Dr. Kok would have testified that the tests of the defendant's urine revealed cocaine, THC, lidocaine, diazepam, nordiazepam, temazepam, oxazepam, morphine, oxycodone, methylphenidate, and cyclobenzaprine. Tests of the defendant's blood revealed cocaine, benzoylecgonine, oxycodone, diazepam, and nordiazepam.



Expert pharmacologist Dr. William Kolling would have testified that the diazepam, nordiazepam, oxazepam, temazepam, morphine, oxycodone, and cyclobenzaprine all depress the central nervous system, which would impair one's ability to drive a vehicle. Cocaine, cocaine metabolites, lidocaine, and methylphenidate were all central nervous system stimulants, which could also impair one's ability to operate a motor vehicle. Dr. Kolling would have testified that the blood test was consistent with such a large dose of cocaine that people have died from ingesting that amount. The oxycodone level was 4 1/2 times the recommended level, and the diazepam level was 2 to 3 times higher than the level normally used by patients. Dr. Kolling would have opined that these levels would impair judgment and driving ability, cause blurred vision, affect coordination, and cause lightheadedness, paranoia, and a lack of judgment. He would have finally concluded that the defendant was impaired while operating his vehicle at the time of the fatal collision.



At the conclusion of the bench trial, the trial court found the defendant guilty on all the counts. The trial court found the defendant's medical condition to be the only factor in mitigation but noted that the condition was “self-inflicted.” On March 16, 2009, the defendant was sentenced to a 14-year term of imprisonment. On April 15, 2009, the defendant filed a motion for a new trial or in the alternative for a new sentencing hearing, raising the question of the propriety of the admission of the urine and blood samples into evidence. The trial court denied the defendant's motion for a new trial or a new sentencing hearing on June 15, 2009. The defendant filed a timely notice of appeal on June 29, 2009.



On appeal, the defendant first argues that he was denied the effective assistance of counsel because his counsel failed to obtain a fitness hearing before the trial and his counsel agreed to stipulate to the testimony that the State would present at the trial. The standard of review for assessing ineffective-assistance-of-counsel claims is set out in the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064 (1984). Under the first prong in Strickland, the defendant must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness. People v. Evans, 209 Ill.2d 194, 219-20 (2004). The defendant must overcome a strong presumption that, under the circumstances, counsel's conduct might be considered sound trial strategy. People v. Peeples, 205 Ill.2d 480, 512 (2002). With regard to the second prong, the defendant must show that he suffered prejudice in that but for counsel's deficient performance, there was a reasonable probability that the result of the proceeding would have been different. Evans, 209 Ill.2d at 219-20. In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy both prongs of Strickland. Evans, 209 Ill.2d at 220.



*5 We first address the defendant's argument that he received ineffective assistance of counsel because counsel failed to seek a fitness hearing prior to the trial. For a defendant to establish that the failure to request a fitness hearing prejudiced him within the meaning of Strickland, the defendant must show that facts existed at the trial that would have raised a bona fide doubt of the defendant's ability “ ‘to understand the nature and purpose of the proceedings against him or to assist in his defense.’ “ People v.. Harris, 206 Ill.2d 293, 304 (2002) (quoting 725 ILCS 5/104-10 (West 1998)). “ ‘Defendant is entitled to relief* * * only if he shows that the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing if it had been apprised of the evidence now offered.’ “ Harris, 206 Ill.2d at 304 (quoting People v. Easley, 192 Ill.2d 307, 319 (2000)). To determine whether there exists a bona fide doubt of the defendant's fitness, a court may consider the defendant's irrational behavior, the defendant's demeanor at the trial, and any prior medical opinion on the defendant's competence. Harris, 206 Ill.2d at 304.



The defendant claims that he was “heavily medicated for depression and anxiety” and was “on a cocktail of anti[ ]depressants, including Lexapro, Ativan[,] and Romazicon.” The defendant further claims that these drugs often make an individual lethargic and slow in comprehension. He claims that he was particularly disoriented on a particular day, approximately three months before the trial, and that he was “so disoriented and combative, he had to be restrained and administered Haldol, a powerful anti[ ]psychotic drug.” The defendant also claims that hospital notes reflect that he was having difficulty with memory and recollection and might want a psychiatric evaluation.



In response, the State notes that the defendant's brief does not contain a single citation to the record in support of his claims, in violation of Supreme Court Rule 341(h)(7) (210 Ill.2d R. 341(h)(7)), which mandates that the parties to an appeal shall make their argument “with citation of the authorities and the pages of the record relied on.” The failure to provide proper citations to the record is a violation of this rule, the consequence of which is the forfeiture of the argument lacking those citations. Engle v. Foley & Lardner, LLP, 393 Ill.App.3d 838, 854(2009).



In any event, the record does not establish that the defendant was “heavily medicated” for depression or that he suffered from anxiety and that the medications caused lethargy or slow comprehension. What the record does reveal is that the defendant suffered a mild stroke on September 22, 2008. As a result, on September 30, 2008, defense counsel filed a motion for a fitness examination. A week later on October 6, 2008, the defendant had recovered enough to be present in court at a pretrial conference. A month later, on November 3, 2008, defense counsel withdrew his motion for a fitness examination. Defense counsel noted that the motion had been based solely on the stroke. The trial court noted that up to that point the defendant had not raised a bona fide doubt regarding the defendant's fitness to stand trial. On January 16, 2009, during the hearing at which the defendant waived his right to a jury trial, the trial court noted that defense counsel had previously raised the issue of the defendant's fitness to stand trial but had withdrawn it. Defense counsel stated, “[A]t this present time we are not raising that issue, and we don't anticipate it, and[-]assuming there is [sic] no new medical developments.” The trial court noted, “[F]rom my observation of Mr. Sprind, he also appears to be fully aware of what is occurring today and appears to be fit to stand trial.” Accordingly, the trial court found that the defendant had not established a bona fide doubt regarding his fitness to stand trial, and we cannot conclude that defense counsel was ineffective for failing to request a fitness examination.



*6 We next address the defendant's argument that defense counsel's decision to stipulate to the facts at the bench trial resulted in the ineffective assistance of counsel. The defendant compares defense counsel's decision to agree to a stipulated bench trial to a defense counsel's actions admitting guilt in his opening statement to a jury. Again, the defendant's brief fails to include any citations to the record to support his argument, in violation of Supreme Court Rule 341(h)(7).



In any event, the record reveals that, contrary to the defendant's claims, defense counsel did not concede his client's guilt. Defense counsel merely stipulated to the existence of the State's evidence. Defense counsel specifically stated at the beginning of the bench trial: “[W]e are not stipulating that the evidence is sufficient to prove the defendant's guilt, and we're not admitting guilt. We are simply waiving the obligation of the State to present evidence through testimonial means.” Accordingly, the trial court was still required to find that the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. See People v. Sutton, 229 Ill.App.3d 960, 968 (1992). Furthermore, defense counsel preserved the defendant's objection to the admittance of the blood and urine samples into evidence during the stipulated bench trial. Accordingly, we cannot conclude that defense counsel was ineffective under these circumstances.



We turn now to the defendant's next argument on appeal. The defendant argues that the trial court improperly denied his motion in limine and his motion to suppress because the amendments to section 1286.320 and section 1286.330 of Title 20 of the Administrative Code, as applied retroactively, constitute ex post facto laws in violation of the United States and Illinois Constitutions. The defendant also argues that compliance with the regulations established pursuant to section 11-501.2 of the Illinois Vehicle Code (625 ILCS 5/11-501.2 (West 2008)) is a prerequisite to the admissibility of the test results in a DUI prosecution. He contends that because the police failed to comply with the regulations, the results of the blood and urine tests were inadmissible.



In response, the State argues that the amendments in the Administrative Code were procedural, the prior versions of the Administrative Code were invalid, and there was substantial compliance with the regulations. The State relies on People v. Morris, 394 Ill.App.3d 678, 679 (2009), a similar case in which the defendant filed a motion in limine to bar evidence of a blood test, arguing that the disinfecting swab in the DUI kit used to draw his blood contained low levels of alcohol, in violation of the version of section 1286.320(c) of Title 20 of the Administrative Code in effect at the time of his arrest and the drawing of his blood. At that time section 1286.320(c) stated, “ ‘A disinfectant that does not contain alcohol shall be used to clean the skin where a sample [of blood] is to be collected.’ “ Morris, 394 Ill.App.3d at 679 (quoting 20 Ill. Adm.Code § 1286.320(c), amended at 28 Ill. Reg. 10039, eff. June 30, 2004). The Administrative Code was later amended to read, “ ‘The blood sample should be drawn using proper medical technique.’ “ Morris, 394 Ill.App.3d at 680 (quoting 20 Ill. Adm.Code § 1286.320(c), amended at 31 Ill. Reg. 10192, eff. July 9, 2007 (emergency amendment, in effect for a maximum of 150 days), and 31 Ill. Reg. 15111, eff. October 29, 2007). The trial court initially denied the defendant's motion in limine, and the defendant filed a motion to reconsider; the trial court granted the motion to reconsider and barred the results of the blood test from being introduced into evidence. Morris, 394 Ill.App.3d at 680. The court on review noted that both the United States Constitution and the Illinois Constitution prohibit the imposition of ex post facto laws. Morris, 394 Ill.App.3d at 680. A law is retroactive if it applies to events that occurred before the law was enacted. Morris, 394 Ill.App.3d at 680. A law is disadvantageous to the defendant if it (1) criminalizes an act that was innocent when done, (2) increases the punishment for an offense previously committed, or (3) alters the rules of evidence to make a conviction easier, by making “ ‘ “substantive change[s] in the evidence needed to convict for the particular crime in question.” ‘ “ Morris, 394 Ill.App.3d at 680 (quoting People v. Kotecki, 279 Ill.App.3d 1006, 1011 (quoting People v. Dorff, 77 Ill.App.3d 882, 885 (1979))). The court noted, “The ex post facto clause, however, does not limit the legislature's control of remedies or modes of procedure if they do not affect matters of substance; an amendment that affects only procedural matters and not substantive rights will be applied retroactively as well as prospectively.” Morris, 394 Ill.App.3d at 680-81. Quoting the United States Supreme Court, the court noted as follows: “ ‘[W]e cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed .’ “ Morris, 394 Ill.App.3d at 681 (quoting Thompson v. Missouri, 171 U.S. 380, 387, 43 L.Ed. 204, 207, 18 S.Ct. 922, 924(1898)).



*7 The court then concluded, “The amended rule in this case did not criminalize an act that was innocent when done or increase the punishment upon conviction.” Morris, 394 Ill.App.3d at 681. Moreover, the court disagreed with the defendant's argument that the amendment made a conviction easier by lessening the State's burden of proof and removing a defense to the charge or that the rule change affected substantive rights, not just procedure. Morris, 394 Ill.App.3d at 681. The court noted that the State was still required to prove that the defendant drove or was in physical control of a vehicle while under the influence of alcohol or while the alcohol concentration in his blood or breath was 0.08 or more: “The elements of the charge and the burden of proof are the same. All that has changed is that a piece of evidence that may have been inadmissible under the preamendment regulation is now admissible. * * * The jury still has the right to determine the sufficiency or effect of the now-admissible evidence.” Morris, 394 Ill.App.3d at 682. The court held that the amended regulation affected procedure, not substantive rights, and should have been applied retroactively. Morris, 394 Ill.App.3d at 682. Accordingly, the court held that the trial court erred in its conclusion that the amendment constituted an ex post facto law and in granting, on reconsideration, the defendant's motion in limine. Morris, 394 Ill.App.3d at 682.



In the instant case, the defendant challenged precisely the same section of the Administrative Code on precisely the same basis. Moreover, the logic of the decision in Morris is also applicable to the amendment of section 1286.330(b) of Title 20 of the Administrative Code (20 Ill. Adm.Code § 1286.330(b), amended at 28 Ill. Reg. 10040, eff. June 30, 2004), which set forth procedures that the “urine sample may be collected by the arresting officer, another law enforcement officer, or an agency employee.” At the time of the defendant's trial, section 1286.330(b) had been amended to include hospital nurses. As was said in Morris concerning section 1286.320(c), “[A]mending the rule ‘does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed .’ “ Morris, 394 Ill.App.3d at 681 (quoting Thompson, 171 U.S. at 387, 43 L.Ed. at 207, 18 S.Ct. at 924). Like the amendment to section 1286.320(c) involved in Morris, the amendment to section 1286.330(b), “by definition, is procedural, not substantive” ( Morris, 394 Ill.App.3d at 682). Accordingly, the reasoning in Morris leads to the conclusion that the trial court's ruling allowing the results of the blood and urine samples to be admitted into evidence was proper.



The State further argues that the preamended section 1286.320 (20 Ill. Adm.Code § 1286.320, amended at 28 Ill. Reg. 10039, eff. June 30, 2004), dealing with blood draws, was invalid at the time of the offense. In People v. Bair, 379 Ill.App.3d 51, 52 (2008), the defendant claimed error because his skin had not been disinfected as required by section 1286.320(c). The court noted that the version of the Administrative Code in effect at the date of the offense stated, “ ‘A disinfectant that does not contain alcohol shall be used to clean the skin where a sample is to be collected.’ “ Bair, 379 Ill.App.3d at 58 (quoting 20 Ill. Adm.Code § 1286.320(c), amended at 28 Ill. Reg. 10039, eff. June 30, 2004). However, the Administrative Code was later amended to read, “ ‘The blood sample should be drawn using proper medical technique.’ “ Bair, 379 Ill.App.3d at 58 (quoting 20 Ill. Adm.Code § 1286.320(c), amended at 31 Ill. Reg. 10192, eff. July 9, 2007 (emergency amendment, in effect for a maximum of 150 days), and 31 Ill. Reg, 15111, eff. October 29, 2007). The Department of State Police (Department), which is the issuing agency for this section, explained that it had eliminated the disinfection requirement because the Department had been informed that all manufacturers' disinfectant wipes contain a trace amount of alcohol. Bair, 379 Ill.App.3d at 58. The Department further stated that its disinfection requirement was for the subject's well-being and not for evidence-collection purposes. Bair, 3 79 Ill.App.3d at 58. On appeal, the defendant claimed that section 11-501.2 required compliance with the Administrative Code and that the doctor failed to comply. Bair, 379 Ill.App.3d at 58. The court noted that the supreme court had found that “ ‘compliance with the standards is a prerequisite to admissibility on a DUI charge.’ “ Bair, 379 Ill.App.3d at 58 (quoting People v. Emrich, 113 Ill.2d 343, 350 (1986)). The court found Emrich distinguishable from that case because the purpose of the regulation in Emrich was to ensure the validity of the test results, whereas the Department stated that its disinfection requirement was only for the subject's well-being and not for evidence-collecting purposes. Bair, 379 Ill.App.3d at 58-59. The court pointed out as follows:



*8 “The legislature delegated authority to the Department of State Police to promulgate ‘standards' for blood and other tests, for the purpose of ensuring the validity of the test results. * * * The law states that ‘to be considered valid’ the tests must have been ‘performed according to [the Department's] standards.’ 625 ILCS 5/11-501.2(a)(1) (West 2004). Thus, the intended purpose of the standards was to ensure the tests' validity. * * * When the Department of State Police required disinfectant, not for the test's validity, but solely ‘for the subject's well-being,’ the Department exceeded the authority delegated by the statute.” Bair, 379 Ill.App.3d at 59.


Accordingly, the court found that the admission of the test results was not error, despite noncompliance with an administrative regulation, because the regulation was not valid. Bair, 379 Ill.App.3d at 59.

Applying the logic in Bair to the instant case, we agree with the State that section 1286.320(c), regarding disinfecting skin prior to a blood draw, was invalid at the time that the defendant's blood was drawn. The State also asserts that the logic in Bair can be extended to the urine sample. The urine sample cannot have been more reliable if it was taken by a police officer rather than a nurse whose medical training far exceeded that of the police officer, especially if the officer was present to observe and authenticate the sample. The requirement of having a police officer instead of medical personnel obtain the urine cannot be to ensure the validity of the tests. Since this regulation also exceeds the authority delegated in the statute, the failure to comply with the Administrative Code cannot have been error.



In any event, the State asserts that there was substantial compliance with the Administrative Code. See People v. Bishop, 354 Ill.App.3d 549, 555 (2004). Trooper Reynolds was present during both the blood draw and the urine draw and was able to authenticate the samples. Furthermore, the alleged deviation did not affect the reliability of the test results, nor did the alleged deviation prejudice the defendant. The fact that a nurse collected the sample instead of a police officer cannot have affected the result or prejudiced the defendant.



For the foregoing reasons, we hereby affirm the judgment entered by the circuit court of Franklin County.



Affirmed.



DONOVAN and SPOMER, JJ., concur.



Ill.App. 5 Dist.,2010.
People v. Sprind
--- N.E.2d ----, 2010 WL 3172230 (Ill.App. 5 Dist.)

Various states provide for DUI vehicle forfeiture if repeat drunk driving convictions.

Use of certified mail is done to purportedly serve notice of the forfeiture papers. Due Process requires that notice be given to all parties of interest (the driver, all owners of record, all lienholders).

This officer mailed notice by certified mail, which was returned as unclaimed after 3attempts. The lawyer for the government somehow argued that "unclaimed" was good enough notice. Guess which attorney won?

Citing to a recent United States Supreme Court decision of Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708 (2006), the Minnesota Court of Appeals held that an unclaimed certified letter, without more, is insufficient service to satisfy due process.

To satisfy due process, when mailed notice of is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.

--- N.W.2d ----, 2010 WL 3220126 (Minn.App.)

Court of Appeals of Minnesota.

Crystal Rose VAN NOTE, Respondent,
v.
2007 PONTIAC, VIN 1G2ZH58N574139187, Appellant.

No. A09-2311.

Aug. 17, 2010.



Syllabus by the Court



*1 1. Service of process is ineffective when a forfeiting agency attempts to serve a notice of seizure and intent to forfeit a vehicle by certified mail pursuant to Minn.Stat. § 169A.63, subd. 8(b) (2008), and the certified letter is returned unclaimed, unless the agency serves the notice in the manner provided by law for service of a summons in a civil action, if it is practicable to do so.



2. In cases involving substitute service of process, substantial compliance with Minn. R. Civ. P. 4.03(a) is sufficient to effect service of process if the intended recipient has actual notice of the action.



Blue Earth County District Court, File No. 07-CV-09-3131.
Crystal Van Note, Mankato, MN, pro se respondent.

Eileen Wells, Mankato City Attorney, Linda Boucher Hilligoss, Assistant City Attorney, Mankato, MN, for appellant.

Considered and decided by CONNOLLY, Presiding Judge; STONEBURNER, Judge; and SCHELLHAS, Judge.



OPINION

SCHELLHAS, Judge.



In this vehicle-forfeiture case, the forfeiting agency argues that respondent's demand for judicial determination of forfeiture was untimely and that the district court erred by denying its motion to dismiss respondent-owner's demand. We reverse and remand.



FACTS

On May 16, 2009, a Mankato police officer arrested Jason Messner for second-degree DWI while he was driving the subject vehicle, a 2007 Pontiac G6, which belonged to his girlfriend, respondent Crystal Van Note. Messner pleaded guilty to the charge on or about August 11.



On the day of Messner's arrest, the officer sent a copy of the notice of seizure and intent to forfeit the vehicle by certified mail to respondent at her street address in Mankato, which the officer confirmed with respondent over the phone. The certified letter was returned to the officer by the post office on June 11, reflecting three failed delivery attempts. That same day, the officer went to respondent's address in an effort to personally serve the notice. Respondent was not home, so the officer left the notice with Tami Schulz, whom the officer described in his testimony as respondent's roommate. Schulz told the officer that she would give the notice to respondent when respondent got home. Respondent testified that she “got served sometime in the middle of June” and that her “friend gave [her the] papers.” The notice stated that “[f]orfeiture of the property is automatic unless within 30 days of receipt of this form you demand a judicial determination,” and that if respondent failed to demand judicial review “exactly as prescribed in Minnesota Statutes,” she would lose the right to a judicial determination and any right to the seized property.



On September 14, respondent served and filed a demand for judicial determination of the forfeiture. The City of Mankato moved for summary judgment, arguing that respondent's demand should be dismissed as untimely. The district court denied the motion, conducted a court trial on November 25, and again denied the city's motion to dismiss respondent's demand as untimely. The court reasoned that the city had not established that Schulz was a person “of suitable age and discretion then residing” in respondent's home when the officer left the notice with her, noting that the officer had not explained how he reached the conclusion that Schulz was respondent's roommate, and that there was no evidence as to Schulz's address or age. The court further concluded that the city had not proved effective service of the notice, that the limitations period for filing the demand for judicial determination therefore had not begun to run, and that respondent's demand was therefore timely. The district court also concluded that respondent was an “innocent owner” within the meaning of Minn.Stat. § 169A.63, subd. 7(d) (2008), and ordered the vehicle returned to respondent.



*2 This appeal follows.



ISSUES

I. Did the forfeiting agency's notice by certified mail constitute effective service that commenced the running of the limitations period for filing a demand for judicial determination, even though the certified letter was returned unclaimed?



II. Did the forfeiting agency's delivery of the notice to respondent's roommate constitute effective substitute service that commenced the running of the limitations period?



III. Did respondent timely file her demand for judicial determination?



ANALYSIS

Minnesota's DWI vehicle-forfeiture law provides that a motor vehicle is subject to forfeiture if it is used in the commission of, among other offenses, second-degree DWI. Minn.Stat. § 169A.63, subds. 1(e)(1), 6(a) (2008). The vehicle is presumed subject to forfeiture if the driver is convicted of the offense on which the forfeiture is based. Id., subd. 7(a)(1) (2008). But the vehicle is not subject to forfeiture “if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent use of the vehicle by the offender.” Id., subd. 7(d).



A law-enforcement agency may seize a forfeitable vehicle incident to a lawful arrest. Id., subds. 1(b), 2(b)(1) (2008). Within a reasonable time thereafter, the agency must serve the owner of the vehicle with a notice of the seizure and the agency's intent to forfeit the vehicle. Id., subd. 8(b). “Notice mailed by certified mail to the address shown in Department of Public Safety records is sufficient notice to the registered owner of the vehicle.” Id. “Otherwise, notice may be given in the manner provided by law for service of a summons in a civil action.” Id.



Minnesota Statutes provide that a demand for judicial determination must be filed “within 30 days following service of a notice of seizure and forfeiture.” Minn.Stat. § 169A.63, subd. 8(d) (2008). “The demand must be in the form of a civil complaint and must be filed with the court administrator in the county in which the seizure occurred, together with proof of service” on the prosecuting authority and the forfeiting agency. Id. “Pleadings, filings, and methods of service are governed by the Rules of Civil Procedure,” as are all proceedings that follow in court. Id., subds. 8(d), 9(a) (2008).



The city challenges the district court's conclusion that the officer did not properly serve the notice of seizure and intent to forfeit on appellant, arguing that the officer properly served the notice on respondent not once, but twice, and that respondent's demand for judicial determination was untimely because it was filed more than 30 days after both services. The sufficiency of notice and service of process are questions of law, which this court reviews de novo. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn.App.2000), review denied (Minn. Jan. 26, 2001); Resolution Revoking License No. 000337 West Side Pawn, 587 N.W.2d 521, 522 (Minn.App.1998), review denied (Minn. Mar. 30, 1999). “But in conducting this review, we must apply the facts as found by the district court unless those factual findings are clearly erroneous.” Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn.2008) (citing Minn. R. Civ. P. 52.01). “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (quotation omitted).



I. Certified Mailing of Forfeiture Notice

*3 The city first argues that under Minn.Stat. § 169A.63, subd. 8(b), the forfeiting agency's service of the notice was effective when the officer sent it by certified mail, even though the certified letter was returned unclaimed by the post office. But the city overlooks the recent United States Supreme Court decision of Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708 (2006), which suggests a contrary conclusion. In Jones, the Arkansas Commissioner of State Lands sent a certified letter to Jones, a homeowner, at the property address to notify him that the property had been certified as delinquent because of unpaid property taxes and would be subject to sale in two years, unless he redeemed. 547 U.S. at 223-24, 126 S.Ct. at 1712. The post office returned the letter to the commissioner marked “unclaimed.” Id. at 224, 126 S.Ct. at 1712. After the tax sale was completed and the purchaser attempted to evict Jones's tenants from the house, Jones filed a lawsuit challenging the tax sale on the ground that the commissioner's failure to provide notice resulted in the taking of his property without due process. Id. at 224, 126 S.Ct. at 1713. The Supreme Court ruled in favor of Jones, holding that to satisfy due process, “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Id. at 225, 126 S.Ct. 1713.



Although the case before this court involves a notice of forfeiture, not a tax sale, we see no reason why we should not apply the holding in Jones. Both cases involve the adequacy of notice to a property owner before the state may take the property, and like the certified letter in Jones, the certified letter in this case was returned unclaimed. We conclude that the mere mailing of the certified letter was not sufficient to notify respondent of the seizure and intent to forfeit her property because the letter was returned unclaimed, and the officer was required to take additional reasonable steps to attempt to provide notice to respondent, if practicable to do so.



II. Substitute Service of Forfeiture Notice

We next consider whether the forfeiting agency's second attempt at service, by the officer's leaving the notice with Schulz at respondent's address, constituted the requisite “additional reasonable steps to attempt to provide notice” to respondent. See id. To satisfy due process, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 226, 126 S.Ct. at 1713-14 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950)) (quotation marks omitted). Minnesota's forfeiture statute additionally requires that if notice is not effected by certified mail, “notice may be given in the manner provided by law for service of a summons in a civil action.” Minn.Stat. § 169A.63, subd. 8(b).



*4 The Minnesota Rules of Civil Procedure allow service of process to be effected “by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein.” Minn. R. Civ. P. 4.03(a). Absent evidence to the contrary, a person is presumed to be “as well informed, and as capable” as an ordinary individual of the same age, and a “person who has attained the age of 14 is ... of suitable age and discretion.” Temple v. Norris, 53 Minn. 286, 288-89, 55 N.W. 133, 134 (1893) (interpreting predecessor statute to Minn. R. Civ. P. 4.03(a)); see also Holmen v. Miller, 296 Minn. 99, 104-05, 206 N.W.2d 916, 919-20 (1973) (holding mere fact that individual with whom document was left was only 13 years old insufficient to rebut server's statement that she was of suitable age and discretion); Peterson v. W. Davis & Sons, 216 Minn. 60, 66, 11 N.W.2d 800, 804 (1943) (holding individual may be of suitable discretion even if she did not understand import of papers left with her and was not advised to deliver them to intended recipient).



In this case, the district court concluded that service was ineffective because the city had not established that Schulz was a “person of suitable age and discretion then residing” in respondent's home. The district court stated:



At the trial, [the officer] identified the person as a Ms. Schulz and he called her [respondent's] “roommate.” However, [the officer] did not provide any details or substantive information as to how he had reached the conclusion that Ms. Schulz was [respondent's] roommate. He offered no explicit testimony as to her residential address. He did not provide any details as to her age. He filed no sworn affidavit of personal service. [Respondent] did acknowledge receiving the document from her “friend,” thus not explicitly referring to her as a roommate. Therefore, the Court cannot determine whether Ms. Schulz was a person “of suitable age and discretion then residing therein” as called for by Rule of Civil Procedure [4.03(a) ].



The district court's analysis misapplies the burden of proof for the adequacy of service of process. “Once the [serving party] submits evidence of service, a [party] who challenges the sufficiency of service of process has the burden of showing that the service was improper.” Shamrock Dev., 754 N.W.2d at 384. Here, the city submitted evidence of the sufficiency of service in the form of the officer's testimony that he left the notice with respondent's “roommate,” coupled with evidence in the record that she was born in 1982. The burden then shifted to respondent to show that the service was improper. But respondent offered no contrary evidence; her testimony that she “got served sometime in the middle of June” and that her “friend gave [her the] papers” is consistent with the officer's testimony. And the evidence in the record that Schulz was born in 1982 suggests that she was a person of suitable age and discretion, absent any evidence to the contrary. In light of Schulz's age and the officer's undisputed testimony that Schulz was respondent's roommate, the district court's finding that it could not determine whether Schulz was a person of suitable age and discretion then residing in respondent's home was clearly erroneous, and the district court erred by putting the burden of proof on the city to present additional evidence on this point. In short, the district court erred by concluding that the officer's substitute service upon Schulz did not constitute effective service on respondent.



*5 Moreover, in substitute-service cases, substantial compliance with rule 4 is sufficient to effect service of process where the intended recipient has actual notice. O'Sell v. Peterson, 595 N .W.2d 870, 872 (Minn.App.1999) (citing Thiele v. Stich, 425 N.W.2d 580, 584 (Minn.1988)); see also Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.App.1986) (“When actual notice of the action has been received by the intended recipient, the rules governing such service should be liberally construed.” (quotation omitted)). Here, the officer substantially complied with the requirements of rule 4.03(a) when on June 11, 2009, he left the notice at respondent's home with an individual who told the officer that she would give the notice to respondent when she got home. And respondent admitted that she received the notice, testifying that she “got served sometime in the middle of June” and that her “friend gave [her the] papers.” We conclude that this combination of actual notice and substantial compliance was sufficient to effect service of the notice upon respondent.



III. Timeliness of Filing Demand for Judicial Determination

Respondent was required to file her demand for judicial determination within 30 days following service of the notice of seizure and forfeiture. See Minn.Stat. § 169A.63, subd. 8(d). Because respondent was served with the notice on June 11, 2009, her filing deadline was Monday, July 13, 2009. Respondent did not file her demand for judicial determination until September 14, 2009-95 days after she was served with the notice. Respondent's filing of her demand therefore was untimely.



DECISION

Respondent did not timely file her demand for judicial determination of forfeiture, and the district court erred by denying the city's motion to dismiss. We therefore reverse and remand for further proceedings consistent with this opinion.



Reversed and remanded.


Minn.App.,2010.
Van Note v.2007 Pontiac
--- N.W.2d ----, 2010 WL 3220126 (Minn.App.)

Minnesota, land of real friendly people, has a DUI implied consent suspension law including a reasonable refusal defense.

This drunk driving arresting officer allegedly assaulted the same defendant 6 years earlier. When he was asked by the cop to blow, the driver said no. When asked why not, the driver said: "Because you're an asshole".

This DUI court ultimately denied the reasonable refusal defense, stating that the claim of a previous assault was unproven. Under those circumstances, the appellant's stated reason for refusing the test was held to be 'not reasonable'.

Bad choice of words, even if allegedly true.

Court of Appeals of Minnesota.

STATE of Minnesota, Respondent,
v.
Appellant.

No. A09-2115.

Aug. 24, 2010.

Mille Lacs County District Court, File No. 48-CR-06-2485.
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN and Jan Jude, Mille Lacs County Attorney, Milaca, MN, for respondent.

Eric J. Nelson, Halberg Criminal Defense, Bloomington, MN, for appellant.

Considered and decided by WRIGHT, Presiding Judge; WORKE, Judge; and BJORKMAN, Judge.



UNPUBLISHED OPINION

BJORKMAN, Judge.



*1 Appellant driver challenges his conviction of refusing a chemical test for intoxication, arguing that the evidence was obtained as a result of an illegal stop and that the jury should have received an instruction on the defense of reasonable refusal. We affirm.



FACTS

On September 17, 2006, at 4:40 a.m., appellant Bradley Harrington was driving his all-terrain vehicle (ATV) southbound on Wigwam Bay beach on the shores of Lake Mille Lacs. Mille Lacs Tribal Police Officer Patrick Broberg was driving north on Highway 169, adjacent to the beach. Officer Broberg noticed headlights coming toward him on the beach. The officer considered this unusual, and he shined his spotlight on the ATV to investigate. When the spotlight hit the ATV, Officer Broberg observed that the ATV shut off its headlights. In his experience, extinguishing headlights is consistent with attempting to evade notice.



Officer Broberg activated his emergency lights, signaling the ATV to stop. The officer identified appellant based on prior contact and observed that appellant smelled of alcohol, had bloodshot, watery eyes, and slurred his speech. Officer Broberg administered field sobriety tests, which appellant failed. Mille Lacs Tribal Officer Timothy Kintop administered a preliminary breath test (PBT), which indicated an alcohol concentration of .179. The officers arrested appellant and transported him to the Tribal Police Department.



At the station, Officer Broberg read appellant the implied-consent advisory. Appellant refused to take the alcohol-concentration test, telling Officer Broberg that he was refusing “because you're an a-hole.” Appellant admits making this statement, but alleges that he first explained that he did not trust Officer Broberg because the officer assaulted him in the past.



Appellant was charged with driving while impaired (DWI), in violation of Minn.Stat. § 169A.20, subd. 1(1) (2006), and test refusal, in violation of Minn.Stat. § 169A.20, subd. 2 (2006). During the omnibus hearing, appellant moved to suppress all the evidence on the basis that the stop was unlawful. The district court denied the motion.



Before trial, appellant's attorney notified the court and prosecutor that he planned to present the affirmative defense of reasonable test refusal. This defense was premised on a July 2000 arrest during which Officer Broberg allegedly assaulted appellant. The district court ruled that appellant could present evidence of the 2000 incident because it was relevant to Officer Broberg's potential bias. But the district court reserved its decision on the reasonable-refusal defense, stating that a jury instruction would be permitted if appellant presented evidence that Officer Broberg did not administer the test fairly. At the close of the evidence, the district court concluded that the evidence did not warrant a reasonable-refusal instruction.



The jury found appellant guilty of test refusal but not guilty of DWI. This appeal follows.



DECISION

I.

*2 Appellant first challenges the stop of his ATV, arguing that Officer Broberg did not have a reasonable articulable suspicion that appellant was engaged in criminal activity. See State v. Beall, 771 N.W.2d 41, 45 (Minn.App.2009) (stating that an officer must have reasonable articulable suspicion to lawfully stop a motorist). When reviewing a suppression order, this court independently reviews the facts and the law to determine whether the district court erred by suppressing or refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).



But effective judicial review requires a record and adequate findings. Gerson v. Comm'r of Econ. Sec., 340 N.W.2d 353, 355 (Minn.App.1983). Here, testimony and argument concerning the validity of the stop were presented during the omnibus hearing, and the district court made its ruling on the record. It was appellant's burden to provide a transcript of the hearing, but no transcript was provided to this court.FN1 See Bender v. Bender, 671 N.W.2d 602, 605 (Minn.App.2003) (placing the burden of providing a transcript on the party seeking review). Without a transcript, we are unable to independently review the facts and assess the district court's legal analysis. Accordingly, the district court's denial of the suppression motion must be affirmed. See State v. Heithecker, 395 N.W.2d 382, 383 (Minn.App.1986) (affirming the district court decision because the issues could not be reviewed in the absence of a transcript).



FN1. Respondent's brief contains several references to a transcript of the omnibus hearing, but neither party provided a transcript to this court.

II.

Appellant next argues that the district court abused its discretion in declining to instruct the jury that reasonable refusal is a defense to the test-refusal charge. The refusal to give a requested jury instruction lies within the district court's discretion, and we will not reverse absent an abuse of that discretion. State v. Yang, 644 N.W.2d 808, 818 (Minn.2002). A defendant is entitled to a jury instruction on his theory of the case if there is evidence to support it. State v. Vazquez, 644 N.W.2d 97, 99 (Minn.App.2002). But “[a]n instruction need not be given if it is not warranted either by the facts or the relevant case law.” State v. Holmberg, 527 N.W.2d 100, 106 (Minn.App.1995), review denied (Minn. Mar. 21, 1995). Here, neither the law nor the facts warrant appellant's requested instruction.



First, there is no direct precedent establishing that the reasonable-refusal defense applies in a criminal case. The reasonable-refusal defense is statutorily permitted in implied-consent cases: “It is an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner's refusal ... was based upon reasonable grounds.” Minn.Stat. § 169A.53, subd. 3(c) (2006). The criminal refusal statute references the implied-consent statute, providing that “[i]t is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license),” Minn.Stat. § 169A.20, subd. 2, but the statute does not expressly incorporate the reasonable-refusal defense.

*3 In 1992, this court recognized that the implied-consent statute and the criminal refusal statute overlap, but concluded, “[w]e need not decide here whether or how the issue of ‘reasonable grounds for refusal’ relates to the elements of the crime of refusal.” State v. Olmscheid, 492 N.W.2d 263, 266 n. 2 (Minn.App.1992).



Appellant relies heavily on State v. Johnson, 672 N.W.2d 235 (Minn.App.2003), review denied (Minn. Mar. 16, 2004), for the proposition that the reasonable-refusal defense is available in criminal cases. In Johnson, the district court instructed the jury that it could consider the reasons for the criminal defendant's refusal to submit to testing. 672 N.W.2d at 242. We considered whether the district court abused its discretion by including in the instruction a potentially confusing example of when refusal might be reasonable. Id. The Johnson court reached the limited conclusion that because the jury instruction correctly stated the elements of reasonable refusal and prefaced the example with the phrase “for example,” the district court did not abuse its discretion. Id. at 242-43. The Johnson court did not decide the broader issue of whether reasonable refusal is an available defense in a criminal case. Because Johnson did not expressly address the issue and there is no controlling precedent analyzing and applying the instruction in a criminal case, we discern no legal error in declining to give the requested instruction.



Second, the facts of this case do not warrant a reasonable-refusal instruction. Because reasonable refusal is an affirmative defense, appellant had the burden of production of evidence. See State v. Cannady, 727 N.W.2d 403, 407 (Minn.2007) (stating that defendants bear the burden of production on affirmative defenses). The proffered evidentiary basis for the instruction is appellant's unsubstantiated claim that Officer Broberg assaulted him in connection with a previous arrest. The prior arrest took place more than six years earlier. Instead of taking appellant directly to the police station, appellant alleges that Officer Broberg drove him to a secluded cemetery and punched and choked him in front of other officers. There is no official report of the alleged assault, and appellant ultimately pleaded guilty to obstructing legal process with force based on the events of that day.



Furthermore, appellant's own behavior on the night of the stop, up to the point of the test refusal, is inconsistent with his claimed mistrust of Officer Broberg. Appellant was calm and compliant until asked to take the breath test: he stopped his ATV, moved from the beach to the road, performed field sobriety tests, and accompanied the officers to the station, all without protest or claims of distrust. In addition, unlike the circumstances of the 2000 arrest, appellant was at the police station when he refused the test and there is no evidence that Officer Broberg or any other officer threatened or assaulted appellant. Finally, Officer Kintop had administered the preliminary breath test earlier and transported appellant to the police station. Appellant did not claim any trust issues with Officer Kintop. Under these circumstances, appellant's stated reason for refusing the test is not reasonable. Even if the defense were legally available in a criminal case, on this record, the district court did not abuse its discretion in declining to instruct the jury on the reasonable-refusal defense.

*4 Because the availability of the reasonable-refusal defense in criminal cases is unsettled and because the facts of this case do not warrant a reasonable-refusal instruction, the district court did not abuse its discretion in refusing to give appellant's requested jury instruction.

Affirmed.

Minn.App.,2010.
State v. Harrington
Not Reported in N.W.2d, 2010 WL 3306924 (Minn.App.)

A defendant was charged with intoxication due to the results of a blood test which revealed four nanograms of parent tetrahydrocannibinol (THC), and 15 nanograms of 11-carboxy-THC (from cannabis inhalation). In Michigan, it is illegal to drive with any amount of a schedule 1 controlled substance in the system. THC is such a substance. The attorney for the defense attacked the constitutionality of the statute.

Defendant primarily argued that the statute was unconstitutional because there was no rational basis for criminalizing the operation of a motor vehicle while 11-carboxy-THC is present in the body, since that drug does not impair.

The trial court held that the statute is fundamentally unfair, does nothing to promote public safety, and bears no rational relationship to any legitimate governmental interest. The court therefore held that the ENTIRE statute was unconstitutional. On appeal, it was noted that 11-carboxy-THC is no longer considered a controlled substance by the Michigan courts, and therefore the underpinnings for the trial court's ruling was no longer supportable. The evidence of the presence of 11-carboxy-THC was ruled to be inadmissible, but evidence of its parent, THC, would remain admissible.

Lastly, the appellate court addressed the applicability of the Michigan Medical Marihuana Act (MMMA) The trial court noted that, by definition, a schedule I substance has no accepted medical use. Therefore, the court reasoned that it was improper to classify marihuana as a schedule I substance in light of the passage of the MMMA. The charged offenses occurred on October 17, 2008, before the MMMA's effective date of December 4, 2008, so the appellate court held that said argument would be rejected as inapplicable, although they noted that it may have to be addressed in some future case.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JUSTIN J. MALIK, Defendant-Appellee.

No. 293397

COURT OF APPEALS OF MICHIGAN

2010 Mich. App. LEXIS 1527

August 10, 2010, Decided

PRIOR HISTORY: [*1]
Barry Circuit Court. LC No. 09-100048-FH.

JUDGES: Before: STEPHENS, P.J., AND GLEICHER AND M.J. KELLY, JJ.

OPINION
PER CURIAM.
In this case, the prosecution appeals by leave granted the trial court's order, which invalidated MCL 257.625(8) on due process grounds. We reverse and remand.
The prosecution presents only one issue on appeal, arguing that the trial court erroneously invalidated MCL 257.625(8) on due process grounds in contravention of our Supreme Court's decision in People v Derror, 475 Mich 316; 715 NW2d 822 (2006). We review constitutional challenges de novo. People v Hrlic, 277 Mich App 260, 262; 744 NW2d 221 (2007). "Statutes are presumed to be constitutional unless there is a clear showing of unconstitutionality." People v Dewald, 267 Mich App 365, 382; 705 NW2d 167 (2005).
At approximately 9:50 p.m. on October 17, 2008, defendant's automobile collided with Christopher Yonkers's motorcycle on M-43 near Usborne Road in Barry County, Michigan. Yonkers died due to "atlanto-occipital dislocation" or an injury where his head connected with his neck. At the scene, Michigan State Police Trooper Michael Behrendt smelled intoxicants on defendant. Defendant admitted that he had consumed three beers [*2] before driving, with the last beer approximately 30 minutes before the accident. Trooper Behrendt administered three field sobriety tests on defendant, and Trooper Behrendt was "satisfied" with the results. Trooper Behrendt, nonetheless, believed that defendant was intoxicated based on "horizontal gaze nystagmus." 1

1 At the preliminary examination, Trooper Behrendt explained "horizontal gaze nystagmus":



When there's alcohol and some drugs present in a person's system, certain physiological effects occur that can't be controlled by the human body. One of these is when . . . a person is told to follow a stimulus. If there is alcohol present, the eyes will lack smooth pursuit . . . instead of following the stimulus smoothly they will start and stop. There would be an onset of nystagmus, which is the involuntary jerking on the eyes, prior to 45 degrees, and there will also be nystagmus at maximum deviation which is when a person looks as far left or right away from center as possible.



At the preliminary examination, the parties stipulated to the admission of defendant's subsequent blood test, which contained the presence of alcohol and marihuana. Defendant's blood alcohol content was .01 [*3] percent. At a subsequent motion hearing, Michigan State Police Trooper Ernest Felkers testified that defendant admitted to smoking marihuana at some point after coming home from work at 3:30 p.m. on the day in question. Defendant's blood test revealed four nanograms of parent tetrahydrocannibinol (THC), and 15 nanograms of 11-carboxy-THC. Dr. McCoy opined that the THC levels in defendant's blood were consistent with defendant's claim that he last smoked marihuana at 4:00 or 5:00 p.m. McCoy nonetheless "could not reach a final conclusion whether or not THC caused any impairment in this situation."
Defendant was charged, as an habitual offender, second offense, MCL 769.10, with operating a vehicle while intoxicated and causing death, MCL 257.625(4)(a), operating a vehicle with a suspended or revoked license and causing death, MCL 257.904(4), and negligent homicide, MCL 750.324. In order to secure a conviction for violation of MCL 257.625(4)(a), the prosecution sought to prove that defendant violated MCL 257.625(8).MCL 257.625(8) criminalizes the operation of a motor vehicle by an individual who has any amount of a schedule I controlled substance in his or her body, regardless of whether [*4] that individual has exhibited signs of impairment. MCL 333.7211 provides a general definition of schedule 1 controlled substances, while MCL 333.7212 designates specific substances as schedule 1 controlled substances. THC is one such schedule 1 controlled substance. Furthermore, our Supreme Court previously concluded in Derror that 11-carboxy-THC qualified as a controlled substance. Derror, 475 Mich at 319-320.
Defendant filed a number of pretrial motions, including a challenge to the constitutionality of MCL 257.625(4). At the subsequent hearing, defendant primarily argued that the statute was unconstitutional because there was no rational basis for criminalizing the operation of a motor vehicle while 11-carboxy-THC is present in the body. Following the July 7, 2009 motion hearing, the trial court ruled that the prosecution had to prove that defendant was under the influence of marihuana and/or marihuana and alcohol at the time of the accident. In a subsequent written opinion and order, the trial court concluded that "MCL 257.625(8) is fundamentally unfair, does nothing to promote public safety, and bears no rational relationship to any legitimate governmental interest," and it invalidated [*5] MCL 257.625(8) on due process grounds. In reaching its conclusion, the trial court first observed that our Supreme Court found that MCL 257.625(8) passed constitutional muster in Derror, 475 Mich at 316; however, the trial court held that our Supreme Court's statements on the due process issues constituted obiter dictum, and were not binding. The trial court's ultimate decision to invalidate MCL 257.625(8) was based on a rational basis analysis, where it concluded in part that "[t]here is no rational basis between prevention of impaired driving and criminalizing consumption or passive inhalation of a drug which occurred days or weeks prior to the driving, long after any impairment ended."

The prosecution appealed from the trial court's decision. After oral arguments were held in this Court, our Supreme Court issued its opinion in People v Feezel, Mich ; NW2d (Docket No. 138031, entered June 8, 2010). Of relevance to the present case, the Court in Feezel overturned the portion of Derror that held that 11-carboxy-THC constitutes a controlled substance pursuant to MCL 333.7212. A review of defendant's argument before the lower court reveals that defendant's entire argument [*6] regarding constitutionality was premised on the fact that, unlike THC, 11-carboxy-THC can remain in the system for weeks after passive inhalation and has no pharmacological effect. The trial court found the statute unconstitutional because of the inclusion of 11-carboyxt-THC. Consequently, the trial court's holding must be reversed in light of Feezel. Because MCL 333.7212 no longer classifies 11-carboxy-THC as a controlled substance, defendant's concerns about the rational basis of the legislation have been alleviated.
Defendant has not alleged that it is unconstitutional to criminalize operating a motor vehicle while under the influence of THC. Consequently, we hold that the trial court's ruling regarding the constitutionality of MCL 333.7212 must be reversed and this matter is remanded for trial. At trial, the evidence of the positive test for 11-carboxy-THC is inadmissible as it is now irrelevant. However, the evidence of the presence of THC in defendant's system is still relevant in determining whether he was operating his motor vehicle while intoxicated.

In reaching our conclusion, we also reject the trial court's reliance on the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., [*7] to support its ruling. The trial court noted that, by definition, a schedule I substance has no accepted medical use. Therefore, the court reasoned that it was improper to classify marihuana as a schedule I substance in light of the passage of the MMMA. Although there may ultimately be a need to determine whether the MMMA alters the current legal classification of marihuana, the present case does not require us to address that topic. The charged offenses occurred on October 17, 2008, before the MMMA's effective date of December 4, 2008. MCL 333.26421. There is no indication that the Legislature intended the MMMA to apply retroactively. People v Conyer, 281 Mich App 526, 529; 762 NW2d 198 (2008). Therefore, at the time of the alleged offense, there is no evidence that marihuana did not fall within the statutory definition of a schedule I substance.
Reversed and remanded. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly

San Diego DUI Attorneys frequently encounter the drunk driving arrest issue based on an anonymous informant. Here's the Supreme Court of Delaware was asked to decide whether an anonymous tip given face-to-face that a particular driver was drinking inside a van, coupled with the officer seeing the van leaving the lot where it was reported to be located, was sufficient to stop the vehicle.

This DUI court held that the stop was proper. Whether an anonymous “tip suffices to give rise to reasonable suspicion depends on both the quantity of the information it conveys as well as the quality ... of that information, viewed under the totality of the circumstances.”

In this particular drunk driving cases, this informant reported that she saw the defendant drinking alcohol. The informant also identified the van by oral description and by pointing at it. That provided enough information for Officer Lloyd accurately to identify the vehicle and the alleged criminal activity. Thus, the “quantity” requirement for a reasonable and articulable suspicion was satisfied. “With respect to the quality of the information, the key issue is the degree of the reliability of that information.” “The [U.S.] Supreme Court has long emphasized that a primary determinant of a tipster's reliability is the basis of his knowledge .”

Bottom line: Unlike many cases, this DUI informant based her report on direct observation-a reliable basis of knowledge.

Slip Copy, 2010 WL 3277434 (Table) (Del.Supr.)

Supreme Court of Delaware.

Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.

No. 738,2009.

Submitted: July 21, 2010.
Decided: Aug. 19, 2010.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0906002133.

Before HOLLAND, BERGER and JACOBS, Justices.



ORDER

JACK B. JACOBS, Justice.



*1 This 19th day of August 2010, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:



1. Jeffery A. Schneider (“Schneider”) appeals from the denial by the Superior Court of his Motion to Suppress Evidence. Schneider claims that the Superior Court erred, because the police trooper who performed the search did not have a reasonable articulable suspicion to stop and search him. We find no error and affirm.



2. On June 2, 2009, an anonymous informant called the police. The informant reported that Schneider was drinking alcohol in the driver's seat of a green van, in an elementary school little league field parking lot, during a game. Delaware State Police Trooper Amy Lloyd (“Officer Lloyd”) responded to the call, and met with the informant in the parking lot for about thirty seconds. According to Officer Lloyd, the informant reported that she had seen Schneider drinking in his car, and that she knew Schneider because she had “partied with him in the past ... [and] hung out with him before.” Officer Lloyd also testified that “[i]t didn't appear that [the informant] knew [Schneider] very well.” There is no record that the informant ever identified herself to Lloyd.



3. Before Officer Lloyd was able to question the informant further, the green van left the parking lot, and Lloyd followed it. Although Officer Lloyd did not observe Schneider break any laws or drive erratically, she stopped his van and arrested Schneider for driving while intoxicated.



4. Schneider moved in his Superior Court criminal proceeding to suppress the evidence seized as a result of the motor vehicle stop. The Superior Court denied the motion,FN1 and this appeal followed.



FN1. State v. Schneider, 2009 WL 3327226, at *6 (Del.Super.Ct. Oct. 15, 2009).

5. On appeal, Schneider claims that the Superior Court erroneously denied his motion to suppress, because the unidentified informant's report did not create a reasonable and articulable suspicion to search and seize him. Schneider asserts that his Fourth Amendment right against unreasonable search and seizure, and his corresponding right under Article I, Section 6 of the Delaware Constitution FN2 were violated.



FN2. U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....); Del. Const. art. I, § 6 (“The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures....”). We do not address the alleged violation of the Delaware Constitution, because it was not fully and fairly presented to this Court as an issue on appeal. See Ortiz v. State, 869 A.2d 285, 291 (Del.2005).

6. This Court reviews the denial of a motion to suppress for abuse of discretion.FN3 Where, however, “the denial of motion to suppress evidence [is] based on an allegedly illegal stop and seizure, we conduct a de novo review to determine whether the totality of the circumstances, in light of the trial judge's factual findings, support a reasonable and articulable suspicion for the stop.” FN4



FN3. Pendelton v. State, 990 A.2d 417, 419 (Del.2010).

FN4. Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del.2008).

7. For the search and seizure of Schneider's van to be constitutional, the informant's report must have sufficiently established “a reasonable and articulable suspicion that a crime has occurred, is occurring, or is about to occur.” FN5 Whether an anonymous “tip suffices to give rise to reasonable suspicion depends on both the quantity of the information it conveys as well as the quality ... of that information, viewed under the totality of the circumstances.” FN6 Here, the record shows, the information the anonymous informer reported was of sufficient quantity and quality to justify the vehicular stop.



FN5. Bloomingdale v. State, 842 A.2d 1212, 1217 (Del.2000) (holding that an anonymous tip of erratic driving was sufficiently reliable to establish a reasonable suspicion of criminal activity, making a vehicular stop constitutional); see also Terry v. Ohio, 392 U.S. 1 (1968) (holding that brief stops by law enforcement officers based on a reasonable suspicion of criminal activity do not violate the Fourth Amendment to the United States Constitution).

FN6. Bloomingdale, 842 A.2d at 1217 (quoting United States v. Wheat, 278 F.3d 722, 726 (8th Cir.2001)).

*2 8. The informant reported that she saw Schneider drinking alcohol. The informant also identified Schneider's van by oral description and by pointing at it. That provided enough information for Officer Lloyd accurately to identify the vehicle and the alleged criminal activity. Thus, the “quantity” requirement for a reasonable and articulable suspicion is satisfied.



9. “With respect to the quality of the information, the key issue is the degree of the reliability of that information.” FN7 “The [U.S.] Supreme Court has long emphasized that a primary determinant of a tipster's reliability is the basis of his knowledge .” FN8 Here, the informant based her report on direct observation-a reliable basis of knowledge.FN9 The basis of the informant's knowledge having been firmly grounded, the quality of her report turns on the informant's identity and the reasonableness of Officer Lloyd's reliance on the informant's report. The record shows that although the informant was unidentified, Lloyd acted reasonably in relying on her information.



FN7. Bloomingdale, 842 A.2d at 1217; see also Terry v. Ohio, 392 U.S.1 (1968).

FN8. United States v. Wheat, 278 F.3d at 734; see also Illinois v. Gates, 462 U.S. 213, 230 (1983) (“an informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of [the informant's] report.”).

FN9. Lloyd testified that the informant observed Schneider drinking alcohol in the elementary school little league field parking lot. The Superior Court also relied on the informant's alleged personal knowledge of Schneider, from “part[ying] with him in the past ... [and hanging] out with him,” to establish the reliability of the informant's basis of knowledge. State v. Schneider, 2009 WL 3327226, at *1, *5. This Court finds the informant's direct observations to be a sufficiently reliable basis. We need not decide whether the informant's relationship with Schneider contributed to her basis of knowledge or her reliability.

10. The United States Supreme Court has held that “[a]nonymous tips ... are generally less reliable than tips from known informants....” FN10 Not all anonymous tips are equal, however. A “tip given face to face is more reliable than an anonymous telephone call.... [W]hen an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor.” FN11



FN10. Florida v. J.L., 529 U.S. 266, 269 (2000).

FN11. United States v. Valentine, 232 F.3d 350, 354 (3rd Cir.2000) (citation omitted).

11. Here, the informant called the police to report the information regarding Schneider's alleged activities, and then waited in the parking lot to confirm her earlier report. The informant made no attempt to conceal her identity. FN12 She voluntarily approached Officer Lloyd and answered all of her questions. The informant remained unidentified, in part because Schneider abruptly left the parking lot, leaving Officer Lloyd to choose between continuing to question the informant or stop Schneider's van. Because the informant risked identification and took no action to conceal her identity, those factors support the reliability, and thus the quality, of her information.



FN12. Cf. State v. Satter, 766 N.W.2d 153 (S.D.2009) (holding that a tip from an unidentified informant, who reported to a police officer in person, was sufficient to justify the search and seizure of a motor vehicle under the Fourth Amendment to the United States Constitution). In evaluating the quality of an unidentified informant's tip, the South Dakota Supreme Court valued that the informant made no effort to conceal his identity. Id. at 156.

12. The quantity and quality of the informant's report must be “viewed under the totality of the circumstances.” FN13 In Bloomingdale v. State, FN14 this Court explained that, “when deciding whether an anonymous tip of erratic driving provided reasonable suspicion to stop a vehicle, courts should balance the government's interest in responding immediately to reports of unsafe driving, against the comparatively modest intrusion on individual liberty that a traffic stop entails.” FN15 Similarly, driving while under the influence of alcohol “poses a potentially imminent threat of harm to the public,” FN16 and requires this Court to achieve the same balance. Here, Schneider pulled out of the parking lot only thirty seconds after Officer Lloyd began talking with the informant. Officer Lloyd wisely chose to pursue Schneider and stop his van, rather than continue to question the informant and risk the potential result of allowing a person to drive under the influence of alcohol.FN17



FN13. Bloomingdale, 842 A.2d at 1217.

FN14. Id.

FN15. Id. at 1221.

FN16. Id.

FN17. One of the significant circumstances was Schneider's proximity to an elementary school little league field while a game was in progress. That circumstance weighed in favor of performing the stop.

*3 13. In summary, the informant provided Officer Lloyd a sufficient quantity and quality of information during their face-to-face encounter. To avert any risk of a reportedly intoxicated man driving near a little league baseball field, Officer Lloyd stopped Schneider's van, based on a reasonable and articulable suspicion that Schneider was driving under the influence. Therefore, the Superior Court did not err in denying Schneider's Motion to Suppress Evidence.



NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.



Del.Supr.,2010.
Schneider v. State
Slip Copy, 2010 WL 3277434 (Table) (Del.Supr.)
Unpublished Disposition

San Diego DUI criminal defense attorneys have been revealing prosecutorial misconduct for years. Many San Diego drunk driving lawyers have had to "approach the bench" under certain circumstances.

Brutal state misconduct is something Texas does very well. This defendant was convicted of DWI (Drunk Driving / DUI ) and alleged prosecutorial misconduct based on statements that were made to the jury, such as asking the juror to put themselves into the shoes of the victim's mother, suggesting that the State is the victim's attorney, and implying that the defendant had a prior felony conviction.

These issues were waived for failure to object, says this appellate court. On the 3rd comment (implying the existence of a felony) the defense attorney asked to approach the bench, which the robed judge briskly denied in front of the jury. After the defense attorney balked, the jury was removed and the lawyer was threatened with jail.

Appellate court held that defense counsel's request to “approach the bench” did not constitute an objection sufficient to preserve complaint on appeal.

Court of Appeals of Texas,

Corpus Christi-Edinburg.

Appellant,
v.
The STATE of Texas, Appellee.

No. 13-09-00193-CR.

Aug. 5, 2010.

On appeal from the 214th District Court of Nueces County, Texas.
David W. Phillips, for Jeffry Herzog.

Carlos Valdez, for The State of Texas.

Before Chief Justice VALDEZ and Justices YAÑEZ and GARZA.



MEMORANDUM OPINION

Memorandum Opinion by Chief Justice VALDEZ.



*1 A jury convicted appellant, Jeffry Herzog a/k/a Jeff Herzog, of the offense of intoxication manslaughter, a second-degree felony. See Tex. Penal Code Ann. § 49.08 (Vernon Supp.2009). The jury assessed punishment at eleven years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000 fine. By three issues, Herzog contends that the prosecutor engaged in misconduct during the punishment phase of trial. We affirm.FN1



FN1. Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App. P. 47.4.

I. Applicable Law

On appeal, Herzog's complaints center on the prosecutor's conduct during the punishment phase of trial. We review allegations of prosecutorial misconduct on a case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App.1988). The review is not limited to only the facts of each case, but also the probable effect on the jurors' minds. Hodge v. State, 488 S.W.2d 779, 781-82 (Tex.Crim.App.1973). To preserve error in cases of prosecutorial misconduct, the defendant must (1) make a timely and specific objection, (2) request an instruction that the jury disregard the matter improperly placed before it, and (3) move for a mistrial. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996). “The essential requirement is a timely, specific request that the trial court refuses.” Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App.2004) (citing Tex.R.App. P. 33.1(a)).



II. Analysis

By his first and second issues, Herzog contends that the trial court erred in not sua sponte declaring a mistrial during the State's closing argument at the punishment phase of trial. Specifically, Herzog asserts that the State engaged in improper jury argument by “ask[ing] the members of the jury to place themselves in the shoes of the victim” and representing itself as the victim's attorney. During its closing statement, the State argued:



And so when you sit and you ponder this case, I want you to put yourself in [the victim's mother's] shoes at 5:00 o'clock in the morning trying to figure out where your baby is, hearing that somehow she's been in an accident. You can't figure it out. And because it's appropriate at this time[,] I'm going to tell you something. There's anger in this room, anger because the State has an obligation to represent her victims zealously, the same right a defendant has to have his case represented zealously. The State of Texas through her District Attorney's office represents all of her victims zealously.



In most circumstances, a party raising a complaint on appeal must have made a timely and specific objection in the trial court and the court must have ruled on the objection. See Tex.R.App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004). “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with [r]ule 33.1(a).” Mendez, 138 S.W.3d at 342. Herzog voiced no objection to the above statements and fails to cite any authority to support his contention that the trial court had an absolute duty to declare a mistrial. Accordingly, we reject Herzog's argument that the trial court had a duty to take action by declaring a mistrial sua sponte. See id. Because Herzog did not make a timely objection to the prosecutor's statements, error by the State, if any, was not preserved. See Tex.R.App. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 764 (Tex.Crim.App.1995) (en banc) (per curiam) (concluding that a prosecutorial misconduct complaint was not preserved for review due to appellant's failure to object at the earliest possible moment); see also Lozano v. State, No. 13-08-00180-CR, 2010 WL 411753, at *1 (Tex.App.-Corpus Christi Feb. 4, 2010, no pet.) (mem. op., not designated for publication) (same). We overrule Herzog's first and second issues.



*2 By his third issue, Herzog contends that the prosecutor engaged in misconduct by “ask[ing] the jury to speculate on the existence of facts outside the record.” During his closing argument at the punishment phase of trial, defense counsel stated:



But the first thing I want to bring up is Jeff Herzog. There was some discussion concerning his criminal history, some discussion which was kind of alluded to. He had a DWI charge in San Patricio County eight or so years ago that was dismissed for insufficient evidence. Now, there's a reason cases are dismissed for insufficient evidence, and that's because the evidence is insufficient. So please keep that in mind. Do not be misled by that. He also had an evading charge that was tried by a jury, and I know because I was the lawyer. He was acquitted by a jury of that charge, found not guilty. So don't be misled by any of that, please.



Now, he's filled out an application for probation. He's never had a felony conviction. And I say that to you just simply because I want you to understand the whole story.



During its closing argument, the State responded to Herzog's argument that he had never been convicted of a felony. Herzog asserts that the State's response was improper and points us to the following argument and colloquy:



[The State]: ... The range of punishment is what it is in this state. It's anywhere from probation, two to 20 years, a $10,000 fine. And I don't know what motion that Defense Counsel talked about, but there's no evidence before you that he's never been convicted of a felony in the state of Texas. There was his testimony that he had never been arrested or put in jail, but that got blown out of the water.



[Defense Counsel]: Could we approach, Judge?



The Court: The jury heard the evidence. No. Sit down.



[Defense Counsel]: Your Honor-



The Court: The jury-don't.



[Defense Counsel]: He has never been convicted of a felony-



The Court: I said sit down.



[Defense Counsel]:-ever.



The Court: Ask the jury out, please.



The Bailiff: All rise for the jury.



The Court: Get up here.



[Defense Counsel]: Sorry, Judge.



The Court: Be quiet.



(Jury exits courtroom.)



The Court: You know better that once I said that's enough, sit down, you don't talk anymore. You know what to do after that. You do that one more time, I will put you in jail. Do I make myself clear?



[Defense Counsel]: I understand that, Judge.



On appeal, Herzog contends that “[t]he clear implication of this argument was that [the State] wanted the jury to speculate and consider that defendant had been convicted of a felony in the past.” However, as previously stated, in order to raise a complaint on appeal, a party must make a timely and specific objection in the trial court and the court must rule on the objection. See Tex.R.App. P. 33.1(a); Mendez, 138 S.W .3d at 341. When the State engaged in the alleged misconduct, defense counsel asked to approach the bench; however, he failed to state an objection upon which the trial court could rule. Accordingly, we cannot conclude that the above interjection by defense counsel is sufficient to preserve error. See Tex.R.App. P. 33.1(a); see also Fowler v. State, 863 S.W.2d 187, 189 (Tex.App.-Houston [14th Dist.] 1993, writ ref'd) (holding that defense counsel's request to “approach the bench” did not constitute an objection sufficient to preserve complaint on appeal). We overrule Herzog's third issue.



III. Conclusion

*3 Having overruled all of Herzog's issues on appeal, we affirm the judgment of the trial court.



Tex.App.-Corpus Christi,2010.
Herzog v. State
Not Reported in S.W.3d, 2010 WL 3049089 (Tex.App.-Corpus Christi)