A DUI and hit-and-run conviction can be thrown out when the evidence did not support a finding that defendant was the driver of a vehicle that had been involved in a hit-and-run incident.

Even though this DUI arrestee was found next to a parked vehicle on the shoulder, there was no admissible evidence of how, where or when vehicle had received its damage, there was no evidence that defendant owned the vehicle or had keys to drive it, and there was no evidence as to how long the vehicle had been parked on highway, criminal defense lawyers successfully argues.

This drunk driving record failed to show when Reynolds had last driven or had otherwise been in actual physical control of any moving vehicle, so DUI criminal defense lawyers successfully argued the State failed to connect the "under the influence" element to the "driving or actual physical control" element of the offense.

Court of Appeals of Georgia.

No. A10A1234.

Sept. 10, 2010.

Background: Defendant was convicted in the trial court of hit-and-run and driving under the influence of alcohol (DUI), to the extent it was less safe to drive. Defendant appealed.



Holdings: The Court of Appeals, Phipps, P.J., held that:

(1) evidence did not support finding that defendant was the driver of a vehicle that had been involved in a hit-and-run incident, and

(2) evidence did not support DUI conviction.



Reversed and remanded.


West Headnotes


[1] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol48A Automobiles

Evidence did not support finding that defendant was the driver of a vehicle that had been involved in a hit-and-run incident, and thus did not support hit-and-run conviction; although vehicle at scene of reported hit-and-run accident had rear-end damage and defendant was seen walking away from vehicle as it was parked on interstate highway, there was no admissible evidence of how, where or when vehicle had received its damage, there was no evidence that defendant owned the vehicle or had keys to drive it, and there was no evidence as to how long the vehicle had been parked on highway. West's Ga.Code Ann. § 40-6-270(a).


[2] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol110 Criminal Law

Police officers' testimony that they arrived at scene of reported hit-and-run accident to find at least one victim and one vehicle with rear-end damage, and that they were given descriptions of an alleged fleeing vehicle was hearsay lacking in probative value on the question of whether there had been a hit-and-run offense committed; officers had no personal knowledge of any hit-and-run incident, no personal knowledge of how, where, or when the vehicle had received its rear-end damage, and no personal knowledge of what any fleeing vehicle looked like or its travel direction. West's Ga.Code Ann. § 40-6-270(a).


[3] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol48A Automobiles

Evidence did not support conviction for driving under the influence of alcohol (DUI), to the extent it was less safe to drive; although defendant was seen walking away from vehicle parked on interstate highway, defendant was not determined to be intoxicated until an hour later, there was no evidence regarding when the vehicle was last driven or how long it had been parked on highway, and there was no evidence that defendant owned the vehicle, had authority to drive the vehicle, or had a key to drive the vehicle. West's Ga.Code Ann. § 40-6-391(a)(1).


[4] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol48A Automobiles

To be guilty of the offense of driving under the influence of alcohol (DUI), to the extent it was less safe to drive, one must drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. West's Ga.Code Ann. § 40-6-391(a)(1).


Lawrence W. Daniel, for Reynolds.

Brian Keith Fortner, Katherine Lee Iannuzzi, for the State.
Phipps, Presiding Judge.



*1 A jury found Carolyn Reynolds guilty of hit-and-run FN1 and less safe DUI.FN2 Challenging the sufficiency of the evidence underlying her convictions, Reynolds contends that the state failed to show that she had driven any vehicle during the pertinent period. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” FN3 Because the evidence, so viewed, did not authorize the guilty verdicts, we reverse.



The state presented its case through the testimony of three Douglasville police officers and a tow truck driver. One officer, Adam Forrester, recounted that at about 1:45 a.m. on September 15, 2007, he and another officer, Tommy Deming, were working an accident scene on Interstate 20. They summoned a tow truck, and the dispatched tow truck driver loaded the wrecked vehicle onto his truck for hauling to an impound lot.



Forrester recalled that as he and Deming were completing their work there, “somebody” approached them and reported that, as he was traveling on the interstate, his car had just been sideswiped by a car that did not stop. According to Forrester, this reporting individual further described the make, model, color, and general traveling direction of the fleeing car.FN4



Forrester and Deming went to the reported hit-and-run scene. Deming recalled at trial that a car there had been “hit in the rear end” and that someone at the scene described to him the make, model, and color of the alleged fleeing vehicle.FN5 A description of such a vehicle was broadcast over police radio.



Meanwhile, as the tow truck driver was on his way to the impound lot with the wrecked vehicle, he saw a silver Toyota Corolla alongside the interstate, and within about six or seven feet of the Corolla was a woman who seemed to be trying to wave him to a stop. He recalled seeing no other cars parked nearby on the interstate. The tow truck driver testified that he did not stop, but continued to the impound lot and delivered the wrecked car. Afterward, he went to a nearby store for a cup of coffee and saw the same woman he had seen on the interstate about 25 minutes earlier. She was using a pay phone in the parking lot of a Texaco store, which was just off an Interstate 20 ramp, about a half-mile from where he had first passed her.



Shortly after noting the woman at the pay phone, the tow truck driver received a call to haul off the interstate the silver Toyota Corolla he had seen earlier that night. According to Deming, who had gone to the location of the Corolla, “[t]here was damage to I believe the front passenger side of the vehicle.” The tow truck driver testified that, when he backed up his truck to load the Corolla, the officer there informed him that he did not know where the keys for the Corolla were, nor did he know “where the people are that had the car.” He responded to the officer, “[W]ell I do. I saw her walk away from the car and now she's up at the Texaco-r at the Texaco at the pay phone.”



*2 Reynolds did call 911 from a pay phone at a Texaco store in Douglasville that night. The officer with the Douglasville Police Department who responded to her emergency call at about 2:50 a.m. testified that, in interviewing Reynolds, he surmised that, although she was stating that her car had been stolen, what she really wanted was to be taken to her home. He also noted that an odor of alcohol was emanating from her breath; she was unable to keep her balance; her speech was slurred; and she was loud at times, demonstrating mood swings. According to this officer, who had been trained to detect signs of intoxication, Reynolds seemed intoxicated. The officer summoned Forrester, who was trained in DUI detection and also certified to operate the Intoxilyzer 5000 breath testing machine.



According to Forrester, Reynolds complained to him that “[t]he car she was driving” had been stolen. While talking with Reynolds, Forrester noted an odor of alcohol coming from Reynolds's person; she appeared uneasy on her feet; and her eyes appeared watery and bloodshot. Reynolds admitted to having consumed a beer earlier, but denied that she had recently been driving. Based upon what the tow truck driver had told the officer at the scene of the parked Corolla, however, Forrester suspected that Reynolds had recently driven that car. Forrester asked Reynolds to submit to field sobriety tests, and she agreed. Based on her performance on a horizontal gaze nystagmus test, a walk-and-turn test, and a one-leg-stand test, Forrester determined that she was under the influence of alcohol. Reynolds was arrested for less safe DUI. She declined Forrester's request to undergo a state-administered test of her breath.



[1] Headnote Citing ReferencesAt the close of the state's evidence, Reynolds did not call any witness and did not testify.



1. Hit-and-run. OCGA § 40-6-270(a) pertinently provides,



The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident.... The driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection.


Reynold argues that the state failed to establish that the Corolla-which the state theorized she had been driving FN6-was involved in any hit-and-run incident. We agree.

[2] Headnote Citing ReferencesOfficers Forrester and Deming recounted that they responded to a reported hit-and-run incident; they arrived to find at least one victim and one vehicle, which had rear-end damage; and they were given descriptions of an alleged fleeing vehicle. However, both officers testified that they had not witnessed the reported hit-and-run incident. Thus, they had no personal knowledge of any hit-and-run incident, no personal knowledge of how, where, or when the vehicle they saw had received its rear-end damage, and no personal knowledge of what any fleeing vehicle looked like or its travel direction. To the extent their testimony was presented for the truth of these matters, such testimony was utter hearsay and consequently lacking in probative value. FN7



*3 Furthermore, the record is void of any evidence that Reynolds owned the Corolla, was authorized to drive it, or even had keys to it. The state presented no competent evidence as to the amount of time the Corolla had been parked on the interstate and no evidence as to how or when it had received damage to its front passenger side. That Reynolds was seen walking away from that vehicle and later determined to be intoxicated when she reported that the car she had been driving was stolen fails to authorize a finding beyond a reasonable doubt that she therefore had been the driver of a vehicle involved in a hit-and-run incident.FN8



[3] Headnote Citing References2. DUI less safe. Reynolds argues, “If the State did not provide proof that the Toyota Corolla involved in the hit and run vehicle was Appellant's vehicle, then the State cannot prove that she was driving. If she was not driving, then she could not have been DUI.”



[4] Headnote Citing ReferencesTo be guilty of the offense of DUI less safe, one must “drive or be in actual physical control of any moving vehicle” while under the influence of alcohol to the extent that it is less safe for the person to drive.FN9



There are a number of decisions in which DUI convictions have been upheld on circumstantial evidence, against the defendant's assertion that the evidence failed to prove that he was the driver of the car. However, in all those cases, the evidence revealed specific facts supporting the State's contention that the defendant was indeed the driver.FN10


In some of those cases, the accused admitted driving a vehicle during the pertinent time period.FN11 In other cases affirming convictions on circumstantial evidence, there were other indicia that the accused had recently operated the vehicle at issue.FN12 And in still other cases, the circumstantial evidence included indicia of ownership such as registration of the vehicle in the accused's name.FN13

This type of evidence was lacking in this case. The sum of the competent evidence identifying Reynolds as the driver of any car was that about an hour before police determined that she was intoxicated, she was seen alongside an interstate, about six or seven feet from a damaged Corolla. The state presented no competent evidence regarding when the Corolla was last driven or how long the vehicle had been sitting on the side of the interstate. And although Forrester testified that Reynolds told him that night that “[t]he car she was driving” had been stolen, the record fails to show when Reynolds had last driven or otherwise been in actual physical control of any moving vehicle. As stated above, the record contains no evidence that Reynolds owned the Corolla, had authority to drive the car, or had a key to it. Given this record, we conclude that the evidence was insufficient to show beyond a reasonable doubt the DUI element of “drive or be in actual physical control of any moving vehicle” (while under the influence of alcohol to the extent that it is less safe for the person to drive).FN14 Reynolds's DUI conviction must be reversed.FN15



*4 Judgment reversed.


MILLER, C.J., and JOHNSON, J., concur.



FN1. OCGA § 40-6-270.

FN2. OCGA § 40-6-391(a)(1).

FN3. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

FN4. See, however, Stinski v. State, 281 Ga. 783, 784(1) n. 1, 642 S.E.2d 1 (2007) (2007) (although testimony by a police officer relating what a non-testifying individual told the officer supports a factual determination that the officer heard that individual's statement, such hearsay is not admissible evidence for the truth of the matter asserted by the non-testifying individual); Roebuck v. State, 277 Ga. 200, 204(1), 586 S.E.2d 651 (2003) (noting “Georgia's long-standing rule that inadmissible hearsay lacks probative value even though the opposing party does not object to its introduction”).

FN5. See, however, Stinski, supra (regarding hearsay); Roebuck, supra (regarding hearsay).

FN6. Reynolds was tried on uniform traffic citations filed against her that charged hit-and-run and less safe DUI, thus the record contains neither accusation nor indictment. The state's closing argument made it clear, however, that the state sought to show that the silver Toyota Corolla was the vehicle involved in the reported hit-and-run.

FN7. See generally Stinski, supra (regarding hearsay); Roebuck, supra (regarding hearsay).

FN8. See Jackson v. Virginia, supra.

FN9. OCGA § 40-6-391(a) (emphasis supplied).

FN10. Krull v. State, 211 Ga.App. 37, 39(1), 438 S.E.2d 152 (1993).

FN11. See, e.g., Silvers v. State, 297 Ga.App. 362, 364, 677 S.E.2d 410 (2009) (defendant admitted that he owned the vehicle and was driving it in the area of the reported incident approximately one hour before the BOLO was issued); Coates v. State, 216 Ga.App. 93(1), 453 S.E.2d 35 (1995) (evidence showed that defendant owned the car, was in the driver's seat when the officer arrived at the vehicle parked in the right through-lane of traffic, and defendant admitted to officer that she had been driving); State v. Hill, 178 Ga.App. 669, 344 S.E.2d 491 (1986) (when the investigating officer asked how the accident occurred, defendant answered, “I swerved to miss a dog.”).

FN12. See, e.g., Brockington v. State, 245 Ga.App. 571, 572-573(1), 538 S.E.2d 474 (2000) (evidence showed that, immediately after collision, defendant was observed partially in driver's seat and appeared to be attempting to slide into passenger seat; defendant's nephew was initially completely in backseat and appeared to be almost lying down; and while other driver talked to defendant, defendant slid over to passenger seat and nephew got completely into driver's seat); Henson v. State, 205 Ga.App. 419(1), 422 S.E.2d 265 (1992) (after an automobile collision, defendant and another man exited the vehicle and fled the scene; no one else occupied that vehicle; both men were soon apprehended; defendant was in possession of keys to vehicle; investigating officers found blood and cracked windshield on passenger side of car; and man who had fled with defendant was bleeding from a cut on his head); Melendy v. State, 202 Ga.App. 638(1), 415 S.E.2d 62 (1992) (when investigating officer asked defendant, after having observed the defendant pouring gasoline into the tank of car stopped in the road, what had happened, defendant answered that he was on his way home from a football game when the car ran out of gas; there was no one else in or near the car; and after being arrested for DUI told officer there was no one who could move car); Jones v. State, 187 Ga.App. 132-133(1), 369 S.E.2d 509 (1988) (car was not on scene 20 to 30 minutes earlier; officer found defendant slumped over the steering wheel at a railroad crossing, with the engine running and transmission in “drive”); Phillips v. State, 185 Ga.App. 54(1), 363 S.E.2d 283 (1987) (officer found defendant behind the steering wheel, parked in the middle of the road, with the engine running and the lights on).

FN13. See, e.g., Coates, supra; Frye v. State, 189 Ga.App. 181, 375 S.E.2d 101 (1988) (officer observed defendant staggering alongside a roadway and wearing soiled clothing; approximately 100 yards down the road was an overturned car registered to the defendant).

FN14. See Krull, supra at 40, 438 S.E.2d 152 (state failed to meet burden of proof, where there was no testimony that the keys were in defendant's possession; no previous observation of the car in motion; no evidence that defendant had attempted to start it; the car was inoperable; the engine was not running; no testimony indicating that it had been driven recently, such as a warm engine or hood; no evidence that the car was registered in defendant's name; uncontradicted evidence showed that it was not defendant's car and that he was not permitted to drive it).

FN15. Jackson v. Virginia, supra.

San Diego DUI attorneys explain how so many local universities and colleges create special drunk driving probable cause & reasonable cause situations for persons 21 and under, as well as San Diego adults.

This security guard at a private campus observed a vehicle parked, running, and occupied by two persons. The campus was generally empty (Christmas vacation); the car was not registered for parking, and no visitation was allowed during this time. Upon twice requesting that the car roll down its windows, the vehicle instead pulled away. Dispatch received a call, and then the actual police stopped the vehicle as it exited.

On appeal, the appellate court sustained a finding of reasonable suspicion, based upon the following:

(1) appellant was on a private college campus at 2:30 a.m. over Christmas break; (2) appellant's vehicle was stopped at a location reserved for students who either fly home for the break or remain on campus; (3) appellant's vehicle was not registered with the college as required by the college; (4) appellant's vehicle remained at that location for approximately 15 minutes; and (5) appellant twice refused Security Officer Bowman's requests to roll down her window and show some identification.

Not Reported in N.W.2d, 2010 WL 3632361 (Minn.App.)

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.
STATE of Minnesota, Respondent,
v.
Appellant.

No. A09-2121.
Sept. 21, 2010.

Blue Earth County District Court, File No. 07VB09144.
Lori Swanson, Attorney General, St. Paul, MN; and Eileen Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, Mankato, MN, for respondent.

Christopher P. Rosengren, Rosengren Kohlmeyer, Mankato, MN, for appellant.

Considered and decided by STAUBER, Presiding Judge; LANSING, Judge; and WORKE, Judge.

STAUBER, Judge.

*1 Appellant argues that the district court erred in denying her motion to suppress evidence because the officer did not have an articulable suspicion of criminal activity at the time he stopped appellant's vehicle. We affirm.

FACTS
On December 31, 2008, at approximately 2:30 a.m., Brittany Bowman, a security officer for Bethany Lutheran College, was conducting her rounds of the campus when she noticed a silver Ford Taurus parked in a campus parking lot.FN1 Because no visitation is allowed on campus over Christmas vacation, Security Officer Bowman returned to monitor the vehicle approximately 15 minutes after first seeing the vehicle. As Security Officer Bowman approached the vehicle, she parked next to it so that her driver's side window was approximately two feet from the other vehicle's driver's side window. When the two women occupying the vehicle twice refused to comply with the security officer's request to roll down their window, the officer drove away and “called Dispatch.” After calling dispatch and circling the parking lot, Security Officer Bowman noticed the vehicle had left the campus parking lot and police officers had pulled it over as it exited campus “onto the public right of way.” Appellant was charged with two counts of fourth-degree DWI violation pursuant to Minn.Stat. § 169A.20, subds .(1)(1) and (1)(5) (2008).

FN1. Bowman was wearing a Bethany College security officer uniform and driving a college-provided truck with the words “Bethany Lutheran College Security” written on the side of the truck.


At the pretrial hearing, Officer Hoppe testified that in the early morning hours of December 31, 2008, he received a dispatch call regarding “a suspicious vehicle on the Bethany campus that was ignoring the security guard and they had also advised that security had advised the vehicle was not currently registered to any students on the campus.” After proceeding to the area of the call, Officer Hoppe observed a vehicle that matched the description and license plate received from the dispatch and initiated a traffic stop. On cross-examination, when Officer Hoppe was asked whether he had any suspicion of criminal wrongdoing prior to the stop, Officer Hoppe stated:

No sir but it would typically be suspicious for somebody to not comply with a uniformed security officer just to talk to him. So, that would lead us to think that there was something more to it and it's very typical of MSU Security as well as Bethany Security and Mall Security to contact us to assist in matters like this as they are not armed or equipped to deal with somebody that's not compliant.

Following a July 7, 2009 contested pretrial hearing on appellant's motion to suppress evidence obtained subsequent to the stop by the police officers, the district court denied the motion. Appellant then waived her right to a jury trial, and the matter was submitted to the court upon stipulated facts and pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980). The district court found appellant guilty of two counts of driving under the influence of alcohol pursuant to Minn.Stat. § 169A.20, subds. (1) and (5) (2008).

DECISION
*2 Appellant contends that because Officer Hoppe did not have “any independent suspicion of criminal activity” prior to stopping appellant's vehicle, his stop of appellant's vehicle “was illegal and in violation of both the Minnesota and United States Constitutions.” A traffic stop is lawful under the Fourth Amendment if an officer can articulate a “particularized and objective basis for suspecting the particular persons stopped of criminal activity.” Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95 (1981). This court reviews de novo a district court's determination of whether there was reasonable suspicion of unlawful activity to justify a limited investigatory stop. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000). The district court's findings of fact are reviewed for clear error, and due weight is given to inferences drawn from those facts by the district court. State v. Lee, 585 N.W.2d 378, 383 (Minn.1998).

I.
Reasonable Suspicion
A police officer may make a limited investigative stop of a motorist if the officer has a “reasonable suspicion of criminal activity.” State v. Pike, 551 N.W.2d 919, 921 (Minn.1996). Articulable, objective facts that justify an investigatory stop are “facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity.” State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn.App.2001), review denied (Minn. July 24, 2001). The Minnesota Supreme Court has acknowledged that the standard for reasonable suspicion is not high. State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008). An officer's suspicion may be based on the totality of the circumstances. Knapp v. Comm'r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.2000).

In addition, the collective knowledge of the police can provide the basis for an investigatory stop. See Olson v. Comm'r of Pub. Safety, 371 N.W.2d 552, 555 (Minn.1985). An officer may rely upon information relayed through a dispatcher as long as the dispatcher in fact had specific articulable facts to support a reasonable suspicion of criminal activity. Id. Further, a court may conclude that any information given by an informant to a dispatcher is imputed to the officer effecting the stop under the collective-knowledge doctrine. See State v. Riley, 568 N.W.2d 518, 523 (Minn.1997); Olson, 371 N.W.2d at 555 (applying collective-knowledge doctrine to information relayed through dispatcher).

In denying appellant's motion to suppress, the district court stated:

The court finds it reasonable that when an unregistered vehicle sits idle on the campus of a private college after hours and the occupants of the vehicle ignore campus security's request for identification or to explain their presence, law enforcement can execute a brief investigatory stop to ensure criminal activity is not afoot or that safety concerns are addressed. The fact that the vehicle had just pulled off-campus prior to being stopped does not dissolve the reasonable articulable suspicion.

*3 The court further stated that “[b]ased on the information available at the time, Officer Hoppe's actions were entirely reasonable and certainly not the product of a whim, caprice, or idle curiosity.” (quotations omitted). The record supports the district court's findings. Security Officer Bowman testified that: (1) there was a vehicle on campus at 2:30 a.m. over Christmas break; (2) the vehicle was not registered to any student with the college pursuant to college policy; (3) the occupants of the car refused to comply with the security guard's request to roll down the vehicle's driver's side window; (4) upon a second request to roll down the vehicle's window, the occupants raised the volume of the music and started laughing. In addition, the information relayed from the dispatcher to Officer Hoppe was given by a reliable source, Security Officer Bowman. Finally, Officer Hoppe testified that he received a call from Dispatch regarding “a suspicious vehicle on the Bethany campus that was ignoring the security guard” and that “security had advised the vehicle was not currently registered to any students on the campus.” These facts, taken together with a credible informant,FN2 qualify as specific, articulable facts warranting an investigatory stop. Thus, the district court did not err in determining that Officer Hoppe had sufficient grounds to conduct an investigatory stop of appellant's vehicle.

FN2. Appellant argues that because Bowman was not a “licensed peace officer” at the time of the incident, the arresting officer “had no basis for affording her statements any more credence or reliability than a private citizen.” Even if this is true, Minnesota case law states that there is a presumption that citizen informants are reliable. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980).


II.
Appellant argues that Officer Hoppe “had no reason to believe [a]ppellant was in the process of committing a crime when he stopped the vehicle.” Although appellant makes this second argument, it appears that the only issue raised in this case is whether Officer Hoppe had a reasonable articulable suspicion in making an investigatory stop of appellant's vehicle. Evidence of a traffic violation is not required to make a stop. See Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980) (quotation omitted) (stating that “[a]n actual violation of [a traffic law] need not be detectable” to justify a stop). Moreover, “innocent activity might justify the suspicion of criminal activity.” State v. Johnson, 444 N.W.2d 824, 827 (Minn.1989) (finding that a driver's decision to quickly exit a highway after making eye contact with a trooper, while “consistent with innocent behavior, ... [could] reasonably cause [ ] the officer to suspect that defendant was deliberately trying to evade him,” and therefore may result in a traffic stop).

The following facts constitute the totality of the circumstances: (1) appellant was on a private college campus at 2:30 a.m. over Christmas break; (2) appellant's vehicle was stopped at a location reserved for students who either fly home for the break or remain on campus; (3) appellant's vehicle was not registered with the college as required by the college; (4) appellant's vehicle remained at that location for approximately 15 minutes; and (5) appellant twice refused Security Officer Bowman's requests to roll down her window and show some identification.

*4 An independent review of the facts reveals that appellant's actions, under a totality-of-the-circumstances review, “raise[d] a suspicion of illegality.” See Yoraway v. Comm'r of Pub. Safety, 669 N.W.2d 622, 627 (Minn.App.2003). At that hour of the night, a parked vehicle without proper registration coupled with a refusal of the occupants to cooperate, raised a suspicion of illegality.

Based on the evidence in the record, the district court properly concluded that Officer Hoppe had a reasonable articulable suspicion to make an investigatory stop of appellant's vehicle. Thus, the district court did not err in denying appellant's motion to suppress.

Affirmed.

Of those people killed in distracted-driving-related
crashes, 995 involved reports of a cell phone as a distraction
(18% of fatalities in distraction-related crashes).
„„ Of those injured in distracted-driving-related crashes,
24,000 involved reports of a cell phone as a distraction
(5% of injured people in distraction-related crashes).
„„ Sixteen percent of fatal crashes in 2009 involved reports
of distracted driving.
„„ Twenty percent of injury crashes in 2009 involved reports
of distracted driving.
„„ The age group with the greatest proportion of distracted
drivers was the under-20 age group – 16 percent of all
drivers younger than 20 involved in fatal crashes were
reported to have been distracted while driving.
„„ Of those drivers involved in fatal crashes who were
reportedly distracted, the 30- to 39-year-olds had the
highest proportion of cell phone involvement.
Methodology
The data sources include NHTSA’s Fatality Analysis Reporting
System (FARS) and National Automotive Sampling System
(NASS) General Estimates System (GES). FARS annually
collects fatal crash data from all 50 States, the District
of Columbia, and Puerto Rico, and is a census of all fatal
crashes that occur on the Nation’s roadways. NASS GES contains
data from a nationally representative sample of policereported
crashes of all severities, including
those that result
in death, injury, or property damage. Data presented from
NASS GES are estimates and are used to describe policereported
crashes that occur on the Nation’s roadways. The
national estimates produced from GES data are based on a
probability sample of crashes—not a census of all crashes—
and hence are subject to sampling errors.
As defined in the Overview of the National Highway Traffic
Safety Administration’s Driver Distraction Program (DOT HS
811 299), “distraction” is a specific type of inattention that
occurs when drivers divert their attention from the driving
task to focus on some other activity instead. It is worth
noting that distraction is a subset of inattention (which also
includes fatigue, physical conditions of the driver, and emotional
conditions of the driver).
There has been a revision in NHTSA’s classification of distracted
driving since the September 2009 Research Note,
An Examination of Driver Distraction as Recorded in NHTSA
Databases (DOT HS 811 216). With this change, there will be
fewer crashes, fatalities and injuries that reportedly involve
driver distraction than would have been reported with the
previous definition. For a full explanation of the change and
the corresponding coding changes within NHTSA databases,
please see Appendix A.
There are inherent limitations in the data for distracteddriving-
related crashes and the resulting injuries and fatalities.
These limitations are being addressed through efforts
in and out of NHTSA as detailed in the Overview of NHTSA’s
Driver Distraction Program. Appendix B describes limitations
in the distracted-driving data. Appendix C discusses the
specific coding for distracted driving data from the National
Motor Vehicle Crash Causation Survey (NMVCCS).

San Diego DUI lawyers rely on California law which requires strict compliance with the Code of Regulations, Title 17, Breath Testing requirements.

DUI attorneys in San Diego cite the relevant Title 17 - section:1219.3. Breath Collection:

"A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked."

Manriquez v. Gourley interprets this requirement by insisting that the officer a) REMAIN with the subject and b) able to use all of his or her senses (sight, sound & smell) to ensure none of those prohibited activities occur.

What about checking the mouth?

Other states may be different. For example, in Alaska, a recent DUI defendant blew .086 one hour post-arrest, and had an independent blood result of .071 two hours later. The defendant was found guilty of driving with a BAC of .08 or more. On appeal, the defendant argued that the trial court should have interpreted the pre-breath test 15 minute observation period to require the officer to visually inspect the inside of her mouth to verify that she did not regurgitate during the observation period. This issue was not raised at the trial level, so the appeals court used a plain error analysis, which made the likelihood of winning on appeal substantially harder. The court held that the defendant's interpretation of the rule was new. Alaska law allows breath test evidence to be admitted if the officer substantially complies with the fifteen-minute observation period. The court concluded that the defendant was not shown to be substantially prejudiced by the failure to impose the rule interpretation urged, and denied the appeal.

Not Reported in P.3d, 2010 WL 3719108 (Alaska App.)

Appellant,
v.
STATE OF ALASKA, Appellee.

Court of Appeals No. A-10482 Trial Court No. 3AN-08-11090 CR No. 5641-
Court of Appeals of Alaska.
September 22, 2010

Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge.
Appearances: David K. Allen, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT
BOLGER, Judge.

Mary A. Savage was convicted of driving under the influence.FN1 On appeal, Savage argues the court erred by admitting evidence of her breath test result because the court did not require the State to prove the officer checked her mouth before administering the breath test. Savage raises this issue for the first time on appeal, and we find Savage has not established plain error. We therefore affirm Savage's conviction.

FN1. AS 28.35.030(a).


Facts and proceedings

Airport Police Officer Joshua Henry contacted Savage at the Point Woronzof Park after it was closed on the night of September 8, 2008. She was in the driver's seat of a car with the motor running. Savage had a strong odor of alcohol, bloodshot, watery eyes, and slightly slurred speech. And she performed poorly on the horizontal gaze nystagmus, walk-and-turn, and one-leg-stand field sobriety tests. About an hour after this contact, Savage submitted to a breath test, which showed her blood alcohol content was .086 percent. About two hours after the contact, she had blood drawn for an independent chemical test, which showed a blood alcohol level of .071 percent. Using retrograde extrapolation, a forensic alcohol testing expert testified that Savage's blood test result was consistent with her breath test result, and that Savage's blood alcohol level would have been approximately .10 percent at the time she operated the vehicle.

After the State presented its case at trial, Savage moved for a judgment of acquittal, arguing the State had not proven her blood alcohol level was .08 percent or higher.FN2 District Court Judge Alex Swiderski denied the motion. The jury convicted Savage of DUI. Savage appeals her conviction.

FN2. AS 28.35.030(a)(2) (“A person commits the crime of driving while under the influence ... if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood[.]”).


Discussion

The Alaska Administrative Code establishes procedures that must be followed for presumptive admission of a breath test result in a DUI case,FN3 including the requirement the officer administering the testing “must ... observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period.” FN4 Savage argues the trial court should have interpreted this language to require the officer to visually inspect the inside of her mouth to verify she did not regurgitate during the observation period. the trial court did not commit plain error by failing to adopt a new foundational requirement for the admission of breath test results.

FN3. See AS 28.35.033(d).


FN4. 13 AAC 63.040(a)(1).


Savage did not raise this argument in the trial court. Claims of error involving evidence that was not objected to at trial are reviewable only for plain error.FN5 A plain error is one where the law is so clear that any competent judge or attorney would recognize the error even without objection.FN6 To constitute plain error, the error must also result in substantial prejudice to the defendant.FN7

FN5. Alaska R.Crim. P. 47(b); Massey v. State, 771 P.2d 448, 452-53 (Alaska App.1989); Van Hatten v. State, 666 P.2d 1047, 1055-57 (Alaska App.1983).


FN6. Massey, 771 P.2d at 452-53; Marrone v. State, 653 P.2d 672, 676 (Alaska App.1982).


FN7. Van Hatten, 666 P.2d at 1055 (citing Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979)).


Savage's claim is that the trial court should have adopted a new interpretation of the regulation. But she does not argue that any competent judge or lawyer would have recognized this new interpretation.FN8 Furthermore, she cites no authority to support her argument that 13 AAC 63.040(a) requires a visual inspection of a DUI suspect's mouth.

FN8. See Marrone, 653 P.2d at 676 (a claim of plain error fails if reasonable judges could differ as to what the law requires); see also Forster v. State___ P.3d ___, Op. No. 2278, 2010 WL 2977500 at *11 (Alaska App., July 30, 2010) (judge did not commit plain error by not departing from clear United States Supreme Court precedent and adopting a more stringent test under the Alaska Constitution); Woodbury v. State, 151 P.3d 528, 531 (Alaska App.2007) (finding no plain error where there was a split of legal authority on the issue); Simon v. State, 121 P.3d 815, 820 (Alaska App.2005) (“If a claim of error is reasonably debatable-if reasonable judges could differ on what the law requires-then a claim of plain error fails.”).

And Savage does not show she was substantially prejudiced by the court's failure to interpret the regulation in the manner she advocates. Alaska law allows breath test evidence to be admitted if the officer substantially complies with the fifteen-minute observation period.FN9 In Savage's case, the officer testified he observed Savage for fifteen minutes before administering the Datamaster test. Although the officer testified he did not recall if he checked Savage's mouth, he did not testify that he failed to check it. In addition, the officer testified that Savage did not belch or have anything to eat or drink during the observation period, and Savage offered no evidence that she regurgitated or had anything in her mouth that would have been found by a visual inspection.FN10 And the blood test evidence and forensic scientist's testimony showing Savage's alcohol level was over .08 at the time she operated or was in physical control of a vehicle corroborated the Datamaster test result. We conclude the trial court did not commit plain error by failing to adopt a new foundational requirement for the admission of breath test results.

FN9. Wester v. State, 528 P.2d 1179, 1184-85 (Alaska 1974); see also Oveson v. Anchorage, 574 P.2d 801, 804-05 (Alaska 1978) (substantial compliance test applied to completion of “Breathalyzer Operational Checklist,” where the record showed that the test was properly performed); Williams v. State, 884 P.2d 167, 173-75 (Alaska App.1994), abrogated on other grounds in State v. Coon, 974 P.2d 386 (Alaska 1999), (affirming trial court ruling that regulation did not require second fifteen-minute observation period after invalid sample and, even if it did, officer substantially complied with the regulation's requirement); Macauly v. State, 734 P.2d 1020, 1026-27 (Alaska App.1987) (substantial compliance test applied to handling of blood sample); Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App.1982) (substantial compliance test applied to sixty-day verification of calibration requirement).

FN10. See Herter v. State, 715 P.2d 274, 276 (Alaska App.1986) (defendant failed to allege or establish any potential adverse effect that might have resulted from failure to strictly comply with breath test requirements).

Conclusion

The judgment of the district court is AFFIRMED.

Alaska App.,2010.
Not Reported in P.3d, 2010 WL 3719108 (Alaska App.)

A USA TODAY investigation documented 201 criminal cases across the nation in which federal judges found that prosecutors broke the rules. The abuses put innocent people in jail, set guilty people free.

Read more about Justice in the balance:

For this series, USA TODAY used legal databases such as LexisNexis and PACER to review tens of thousands of pages of judicial opinions, court dockets and other records filed in federal criminal cases since Jan. 1, 1998. Reporters identified more than 200 cases in which courts threw out convictions or publicly rebuked prosecutors for misconduct, then had the list screened by a team of law professors, criminal attorneys and former prosecutors to ensure that the prosecutors' actions qualified as misconduct. The final list, available at justice.usatoday.com, includes only those cases agreed to by the experts who reviewed them. Each case included in USA TODAY's tally was reviewed by at least four independent experts. The newspaper excluded dozens of other cases because experts thought the allegations of misconduct were less serious, or because courts dismissed any missteps as harmless errors. USA TODAY also reviewed detailed tracking information about more than 675,000 criminal cases filed in federal district courts since 1998, using the Justice Department's caseload management databases.

San Diego DUI attorneys looking out for the interests of those who can afford a good lawyer used to object to and prevail in drunk driving cases where the blood drawer was unlicensed. This below cases discusses the issue involving whether implied consent regulations only allow certain occupations to draw blood in DWI cases - a physician, medical technician, emergency medical technician-paramedic, registered nurse, medical technologist, medical laboratory technician, or laboratory assistant acting at the request of a peace officer. the hospital technician who drew blood in the instant case was none of those.

This suspension was set aside although Minnesota criminal law does not require compliance with the regulations in order for the result to be admissible in criminal prosecutions. The court held that compliance with the regulations would create certain presumptions, but noncompliance did not require absolute exclusion. Thus, the court said, the trial court's refusal to exclude was not error. The court did infer, however, that the issue of noncompliance might still be applicable under ordinary rules of evidence.

--- N.W.2d ----, 2010 WL 2813435 (Minn.App.)



Court of Appeals of Minnesota.

STATE of Minnesota, Respondent,
v.
Karri Ann FLERMOEN, Appellant.

No. A09-1879.

July 20, 2010.



Syllabus by the Court



*1 In a criminal driving-while- impaired proceeding, suppression of the blood-test results establishing the driver's alcohol concentration is not mandated when the blood is withdrawn by a person who does not meet the requirements for doing so under the civil implied-consent law, Minn.Stat. § 169A.51, subd. 7(a) (2006).



Anoka County District Court, File No. 02-CR-08-2589.
Lori Swanson, Attorney General, St. Paul, MN; and Stoney Hiljus, Coon Rapids City Attorney, Douglas L. Johnson, Assistant City Attorney, Coon Rapids, MN, for respondent.

Rory P. Durkin, Giancola Law Office, Anoka, MN, for appellant.

Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and ROSS, Judge.



OPINION

WRIGHT, Judge.



Appellant challenges her conviction of second-degree driving while impaired (DWI), a violation of Minn.Stat. §§ 169A.20, subd. 1(5), 169A.25, subd. 1 (2006), arguing that the district court erred by denying her motion to suppress a blood sample and alcohol-concentrati on test results because the blood was withdrawn by a person who did not meet the requirements for doing so under the civil implied-consent law, Minn.Stat. § 169A.51, subd. 7(a). We affirm.



FACTS

On February 24, 2008, Coon Rapids Police Officer Wilberg stopped a vehicle driven by appellant Karri Flermoen and administered three field sobriety tests to Flermoen because he suspected that she was impaired. After Flermoen performed poorly on the field sobriety tests, Officer Koss, who also was at the scene, administered a preliminary breath test. The preliminary breath test reported an alcohol concentration of .273. Officer Koss arrested Flermoen for DWI and transported her to the Coon Rapids Police Department where he read Flermoen the Minnesota Implied Consent Advisory. Although Flermoen agreed to take a breath test, she failed to provide an adequate breath sample for the test. She then agreed to submit a blood sample for testing. Officer Koss transported her to Mercy Hospital where a hospital technician withdrew the blood sample. The blood-test results also were .273 alcohol concentration.



Flermoen was charged with one count of second-degree DWI, a violation of Minn.Stat. §§ 169A.20, subd. 1(1) (driving under the influence of alcohol), 169A.25, subds. 1(a), 2 (2006). The complaint was amended to include an additional count of second-degree DWI, a violation of Minn.Stat. §§ 169A.20, subd. 1(5) (having an alcohol concentration of .08 or more within two hours of driving), 169A.25, subd. 1.



Before trial, Flermoen moved to suppress the blood sample and alcohol-concentrati on test results because the hospital technician who withdrew the blood sample did not meet the qualifications set forth in the civil implied-consent statute, Minn.Stat. § 169A.51, subd. 7(a). A contested hearing on the motion was held, and the district court took the matter under advisement. FN1



FN1. Two judges were involved in Flermoen's case. One ruled on the suppression motion in the criminal proceeding, and another presided over the civil implied-consent proceeding and the criminal trial.

In the civil implied-consent proceeding arising from the same incident, the district court rescinded the revocation of Flermoen's driving privileges because Flermoen's blood sample was withdrawn by a person who did not meet the implied-consent statutory requirements.



*2 In the criminal proceeding, the district court denied Flermoen's motion to suppress the blood sample and alcohol-concentrati on test results and her subsequent motion for reconsideration. The case proceeded to a bench trial during which Flermoen stipulated to the prosecution' s case pursuant to Minn. R.Crim. P. 26.01, subd. 4, reserving the right to appeal the denial of her motion to suppress the evidence. The district court found Flermoen guilty of second-degree DWI, a violation of Minn.Stat. §§ 169A.20, subd. 1(5), 169A.25, subd. 1. This appeal followed.



ISSUE

Did the district court err by denying appellant's motion to suppress the blood sample and alcohol-concentrati on test results based on its conclusion that the hospital technician's failure to meet the requirements to withdraw a blood sample under the civil implied-consent law, Minn.Stat. § 169A.51, subd. 7(a), does not require the suppression of evidence in a criminal DWI proceeding?



ANALYSIS

When the facts are not in dispute, we review a district court's decision denying a motion to suppress evidence to determine whether, in light of the facts, the district court erred as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). The issue presented here requires us to determine the applicability, if any, of the civil implied-consent requirements for blood-test evidence to a district court's decision on the admissibility of a blood sample and alcohol-concentrati on test results in a criminal DWI proceeding.



At the trial of a person alleged to have committed a criminal violation of the laws prohibiting DWI, Minn.Stat. § 169A.20, the district court “may admit evidence of the presence or amount of alcohol in the person's blood, breath, or urine as shown by an analysis of those items.” Minn.Stat. § 169A.45, subd. 1 (2006). In addition, the Minnesota Rules of Evidence govern the admissibility of evidence in a criminal DWI proceeding. See Minn. R. Evid. 1101 (stating that rules of evidence “apply to all actions and proceedings in the courts of this state,” with certain exceptions not applicable here). Minnesota's civil implied-consent statute provides that “[o]nly a physician, medical technician, emergency medical technician-paramedi c, registered nurse, medical technologist, medical laboratory technician, or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol.” Minn.Stat. § 169A.51, subd. 7(a). Flermoen contends that her blood sample and alcohol-concentrati on test results must be suppressed because the hospital technician who withdrew the blood sample was not one of the medical professionals designated in Minn.Stat. § 169A.51, subd. 7(a).



Prior to 1984, the criminal DWI statute, Minn.Stat. § 169.121, subd. 2 (1982), provided that, as a condition of admissibility in a DWI prosecution, alcohol-concentrati on testing must be “taken voluntarily or pursuant to section 169.123 [the implied-consent statute].” In 1984, the criminal DWI statute was amended to remove the language requiring that blood be withdrawn pursuant to the implied-consent statute so as to be admissible in a DWI prosecution. See 1984 Minn. Laws ch. 622, § 7, at 1544; see also State v. Schauer, 501 N.W.2d 673, 676 (Minn.App.1993) (addressing amendment's effect on admissibility requirements in criminal DWI cases). Subsequent to the 1984 amendment, we have consistently held that compliance with the testing procedures of the implied-consent law is not a prerequisite for the admissibility of test results in a criminal DWI proceeding. See, e.g., Schauer, 501 N.W.2d at 676 (holding that when police have not complied with all procedures of implied-consent laws, an otherwise legally obtained test result is admissible in DWI proceeding); State v. Aschnewitz, 483 N.W.2d 107, 108 (Minn.App.1992) (holding that test results were admissible in DWI proceeding when defendant was unable to produce consensual urine sample and blood sample was obtained without further consent); State v. Pittman, 395 N.W.2d 736, 737-38 (Minn.App.1986) (holding that test results were admissible in DWI proceeding when officer did not offer choice between blood and urine tests).



*3 Flermoen argues that our decision in State v. Shifflet, 556 N .W.2d 224 (Minn.App.1996), compels a conclusion that the blood sample and test results at issue here are inadmissible. But the facts and legal issues before us render Shifflet distinguishable. In Shifflet, the driver, who was arrested and jailed for driving under the influence of alcohol, was prevented from obtaining an independent alcohol-concentrati on test when officers refused to permit the driver to provide a urine sample to a third party. 556 N .W.2d at 225. Shifflet sought suppression of the test results because the officers violated his right under the implied-consent statute to secure an independent alcohol-concentrati on test in addition to any administered at the direction of a peace officer. Id. at 226. The Shifflet court recognized that the 1984 amendment to the DWI statute eliminated the incorporation of all the requirements of the civil implied-consent statute into the DWI statute. Id. at 226-27. But because of police wrongdoing that potentially impaired the driver's constitutional right to present a complete defense, the Shifflet court declined to hold the civil implied-consent exclusionary rule for denial of an additional independent test inapplicable in a criminal DWI proceeding under the existing facts and circumstances. Id. at 228. By contrast, the facts here do not implicate the independent- test provision addressed in Shifflet, and Flermoen does not allege that police wrongdoing led to a potential infringement of a constitutional right. Rather, Flermoen contends that the blood sample was withdrawn without meeting the professional- occupation requirements for obtaining a sample under the implied-consent statute. Flermoen does not contest that the blood sample was otherwise legally obtained. See Schauer, 501 N .W.2d at 676 (holding that an otherwise legally obtained test result is admissible in DWI proceeding when officers did not comply with all implied-consent statute's testing procedures). Shifflet, therefore, does not mandate suppression of Flermoen's blood sample and test results.



Flermoen also maintains that the multiple references to section 169A.51 in Minn.Stat. § 169A.41 (2006) demonstrate that the professional- occupation requirements for withdrawing blood in section 169A.51 apply to a criminal DWI proceeding. But she disregards the criminal DWI evidence statute, Minn.Stat. § 169A.45, subd. 1, which addresses the admissibility of alcohol-concentrati on evidence without reference to the requirements for withdrawing blood. Section 169A.41 provides for a preliminary screening test when an officer has reason to believe that a driver is impaired and refers to “section 169A.51 (chemical tests for intoxication) .” Minn.Stat. § 169A.41. “The results of this preliminary screening test must be used for the purpose of deciding whether an arrest should be made and whether to require the tests authorized in section 169A.51[ .]” Id., subd. 2. The types of tests authorized are “blood, breath, or urine.” Minn.Stat. § 169A.51, subd. 3. Under section 169A.41, “additional tests may be required of the driver pursuant to the provisions of section 169A.51.” Minn.Stat. § 169A.41, subd. 3. But these references to section 169A.51 do not overcome the legislature' s express language in section 169A.45, subdivision 1, the criminal DWI evidence statute addressing the admissibility of alcohol-concentrati on evidence in a DWI proceeding without reference to the professional- occupation requirements for withdrawing blood in section 169A.51, subdivision 7(a). Under Minn.Stat. § 169A.45, subd. 1, the district court “may admit evidence of the presence or amount of alcohol in the person's blood, breath, or urine as shown by an analysis of those items.” If the legislature intended to change this criminal DWI rule of evidence regarding proof of alcohol concentration, it could have expressly done so by referencing the professional- occupation requirements for withdrawing blood in section 169A.51, subdivision 7(a). But the legislature did not do so. We, therefore, reject Flermoen's contention that the legislature intended to change the admissibility requirements in a criminal DWI proceeding through indirect references in the preliminary- screening statute.FN2



FN2. Similarly, although Minn.Stat. § 634.15, subd. 1(a)(2) (2008), addresses the admissibility of a blood-sample report in “any hearing or trial of a criminal offense or petty misdemeanor or proceeding pursuant to section 169A.53, subd. 3” and creates a presumption of admissibility under certain circumstances, it does not establish a rule of exclusion or inadmissibility. See State v.. Caulfield, 722 N.W.2d 304, 310 (Minn.2006) (stating that section 634.15 “permits the admission of a report ... if it is prepared and attested” by the preparer (quotation omitted)); State v. Pearson, 633 N.W.2d 81, 85 (Minn.App.2001) (discussing legislature' s ability to create evidentiary presumption and section 634.15's establishment of a prima facie case for admissibility of the blood test result). Any argument that section 634.15, subdivision 1(a)(2), mandates exclusion of a blood-test report offered in a criminal DWI proceeding if it does not comply with its provisions, therefore, would be unavailing.

*4 Flermoen has not demonstrated that the professional- occupation requirements for withdrawing a blood sample, as established in Minn.Stat. § 169A.51, subd. 7(a), apply to exclude from a criminal DWI proceeding the blood sample and alcohol-concentrati on test results.FN3 Accordingly, the district court did not err by denying her motion to suppress.



FN3. We observe, however, that the Minnesota Rules of Evidence, which govern the admissibility of evidence in criminal proceedings, are not implicated by our analysis here. Objections as to foundation, the chain of custody, or other matters under the Minnesota Rules of Evidence may be pursued to exclude alcohol-concentration evidence in a DWI proceeding.

DECISION

In a criminal DWI proceeding, suppression of the blood-test results establishing the driver's alcohol concentration is not mandated when the blood is withdrawn by a person who does not meet the requirements for doing so under the civil implied-consent law, Minn.Stat. § 169A.51, subd. 7(a). The district court's decision to deny appellant's motion to suppress her blood sample and alcohol-concentration test results was proper.



Affirmed.

San Diego drunk driving cops are generally precluded from making an arrest for a misdemeanor unless it was committed in their presence, or unless they first obtain a warrant. This is the law in many states and can be particularly helpful in a DUI case where the defendant is already at home before the police arrive. The below case discusses this rule, and reviews case from other jurisdictions, before deciding that an invalid arrest under the 'presence' rule would support a civil claim for false arrest. Restatement (Second) of Torts, § 121 cmt.e (1965) (“a peace officer has at common law no greater privilege to arrest without a warrant than has a private person. A private person is privileged to arrest another who in his presence is committing a breach of the peace or an attempt to commit a felony, but is not privileged so to arrest for any other misdemeanor although committed in his presence”); see also 32 Am.Jur.2d, supra, § 72 (no liability for warrantless arrest where officer has probable cause to believe a felony has been committed); Speiser et al., supra, § 27:16, at 1005 (“an officer's authority to make warrantless misdemeanor arrests was limited, however, to offenses involving breach of the peace committed in his presence”). “Such limitation was consistent with the general hostility towards state action untempered by judicial review of applications for warrants.” Speiser et al., supra, at 1005. See also the exhaustive and nuanced examination of the common law on this issue in Atwater v. City of Lago Vista, 532 U.S. 318 (2001). Citing to Schram v. District of Columbia, 485 A.2d 623, 624 (D.C.1984), he court stated:

Because the officers arrested Schram for the misdemeanor of operating a motor vehicle while under the influence of alcohol or drugs, and it was undisputed that the police arrived at the scene only after Schram had exited the car and was no longer operating it, we held that “the arrest was invalid and the [evidence] taken after the arrest must be suppressed.” Id.

--- A.2d ----, 2010 WL 3581904 (D.C.)

Only the Westlaw citation is currently available.



NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.



District of Columbia Court of Appeals.

Michael ENDERS, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.

No. 07-CV-650.

Submitted Nov. 17, 2009.
Decided Sept. 16, 2010.

Appeal from the Superior Court of the District of Columbia, (CAB584-03) (Hon. Ronna Lee Beck, Trial Judge).
Michael Enders, pro se.

Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Holly M. Johnson, Assistant Attorney General, were on the brief for appellee.

Before Glickman and Fisher, Associate Judges, and Steadman, Senior Judge.



STEADMAN, Senior Judge:



*1 Michael Enders sued the District of Columbia for false arrest following a traffic incident. He appeals from a jury verdict in the District's favor. He asserts, inter alia, that the trial court's instructions misled the jury into believing the arrest could be justified on a lesser showing than was actually required. Specifically, he challenges the instruction that a warrantless arrest is justified if a law enforcement officer has probable cause to believe that “a crime” has been or is about to be committed. In fact, he argues, citing D.C.Code § 23-581 (2001), that an officer may lawfully arrest without a warrant only for a felony or for a misdemeanor committed either in the officer's presence or under certain other, limited, circumstances.



The District does not squarely address this or any of Enders' other arguments, but instead asserts that we should affirm the judgment on the basis of two alternative grounds. First, the District argues that Enders did not comply with the mandatory pre-litigation notice requirement of D.C.Code § 12-309. Second, the District argues that on this record, as a matter of law, the officers had probable cause to arrest for the felony of malicious destruction of property exceeding $200. We take the case as it is thus presented to us. Because we agree with Enders that the trial court's jury instructions were prejudicially in error and because we are not persuaded by either of the District's proposed alternative grounds for affirmance, we vacate the judgment in the District's favor and remand the case for a new trial.



I. The Incident and Arrest

The arrest came as a result of an impact between Enders' car and a car driven by Kathleen Cravedi. Both parties testified as to their versions of the incident, and the jury was made to understand that these versions, to the extent they differed from each other, were recounted to the police officers who arrived later at the scene .FN1 Enders, who represented himself at trial as he does on appeal, testified that he saw Cravedi sitting in a car that he believed was parked too far from the curb, near the intersection of Forty-Fourth and Jenifer Streets, Northwest. He pulled up next to Cravedi's car-which was facing the opposite direction from his-rolled down his window, and asked her why she was parked so far into the street. Cravedi dismissed him, returning to a conversation on her cell phone. Enders made a U-turn and pulled his car behind Cravedi's, testifying he was planning to honk his horn from that position to indicate how far she had parked from the curb. He testified that he pulled up too close to Cravedi's car and inadvertently “tapped” her bumper, as one would if one were parallel parking. Embarrassed, and feeling as though he no longer had a right to chastise Cravedi about her parking, Enders pulled away, turned his car around, and drove home, which was on nearby Harrison Street. As he was walking to his door, Officer Sylvania Davis approached him, asked him if he had been involved in a collision on Forty-Fourth Street, and, when he said he had, asked him if he would accompany Officer Davis back to the scene.



FN1. Cravedi explicitly testified that she told the officers “about exactly what happened as I just told you.” Enders also testified that he talked to an officer “about what had happened.”

*2 Cravedi testified that when Enders asked her why she was parked so far from the curb, she thought it was strange because she was, in her opinion, right next to the curb. When she went back to her cell phone conversation, she noticed Enders turn around and begin to head towards her car from behind. She “started to get scared,” thinking, “he's going to hit me.” Then, she felt her car being hit with a force that caused her to drop her cell phone. She described the hit as “a big bang,” and said it “was not a tap.” Once she had been hit, she ran to Officer Davis' nearby police cruiser and told her what had happened. Officer Davis then departed and returned a few minutes later with Enders.



After Enders returned to the scene, several other officers arrived, and after an hour of discussion among the officers and the two motorists, Enders was placed under arrest. Enders was told he was being charged with assault with a deadly or dangerous weapon (ADW); namely, his car.FN2 He also received a notice of infraction charging him with fleeing the scene of an accident after causing personal injury or substantial property damage.FN3



FN2. D.C.Code § 22-402 (2001).

FN3. D.C.Code § 50-2201.05 (2001).

No police officer who remembered anything about the incident testified at trial.FN4 A police report, filed the same day as the accident, identified the location of the arrest, the charges, and the circumstances underlying the arrest. Accompanying the police report was an affidavit written by Officer Davis, and an accident report, providing more details of the event. These written documents generally set forth the version of events as recounted by Cravedi. However, they were almost completely silent concerning a major difference in the testimony of the two parties relating to the question of visible damage to Cravedi's car, both as to cause and as to extent, as will be further discussed infra in Part III. B.



FN4. The sole officer who testified simply confirmed the authenticity of the several police exhibits, and stated he had no independent memory of the incident.

II. The Jury Instructions

We first address Enders' argument that the jury instructions were erroneous. Throughout the trial, he pressed the trial court to give an instruction that limited justified warrantless arrests to felonies and misdemeanors committed in an officer's presence. The trial court disagreed with this view of the law. On the contrary, the trial court repeatedly emphasized that as long as the District could show that the officers had probable cause to believe that a “crime,” including simple assault and misdemeanor destruction of property, had been committed, the arrest was legally justified and the District was not liable. Accordingly, in the final instructions to the jury, the trial court included language taken from, and substantially identical to, the Standardized Civil Jury Instructions for the District of Columbia § 18.03 (2002 rev. ed):



The issue for you to determine is whether the arrest was legally justified. For an arrest without a warrant[,] there are a couple of ways the defendant may prove the arrest was legally justified. One way the defendant may prove the arrest was legally justified is to show that the officer had probable cause. An officer has probable cause to arrest if he or she has reason to believe that a crime has been or is about to be committed. Thus, in this case if you find that the officer had reason to believe and did believe that the plaintiff had committed a crime then the officer had probable cause to arrest the plaintiff.... If the officer was legally justified in making the arrest then defendant is not liable for false arrest.


*3 In further emphasis of the point that any “crime” would suffice, the trial court continued the instruction: “If you find that the police had probable cause to arrest plaintiff for destruction of property, simple assault, assault with a dangerous weapon, car, or fleeing from the scene then defendant is not liable for false arrest .” The trial court then instructed the jury on the elements of each of these four offenses, generally following the standard criminal instructions, but, significantly for present purposes, making no mention of any dollar amount for malicious destruction of property or distinguishing between a misdemeanor or felony violation of that statute.

Of these listed crimes, the only felonies are assault with a dangerous weapon and malicious destruction of property if the damage exceeded $200.FN5 Otherwise, the offenses are all misdemeanors.FN6 Thus, if appellant was correct in his view of the law, as we conclude he was, the instruction was demonstrably erroneous and prejudicial.FN7



FN5. D.C.Code § 22-303 (2001).

FN6. See, e.g., D.C.Code § 22-404(a)(1) (2001) (simple assault).

FN7. This conclusion is in no way altered by the fact that in the final instruction the trial court also included a reference to the limiting provisions in D.C.Code § 23-581(a)(1). The reference did not state that (as we conclude) a warrantless arrest made in violation of the statute lacks legal justification by definition. Further, the impact of the reference was effectively negated by the subsequent instructions quoted above. Indeed, when Enders attempted in closing to mention the “in the presence” provision, the trial court cut him off, stated that the language was included merely to explain an argument of Enders' that the arrest was contrived, and reemphasized the provision of its instructions quoted above. As mentioned, the District makes no real attempt to defend the trial court's position, merely pointing out what it sees as two differing lines of cases in our jurisprudence, as discussed infra.

In evaluating Enders' claim, it is instructive to examine the tort of false arrest and its defenses at common law. “False arrest” is indistinguishable as a practical matter from the common law tort of “false imprisonment.” Dent v. May Dep't Stores Co., 459 A.2d 1042, 1044 n. 2 (D.C.1982); see also Great Atlantic & Pacific Tea Co. v. Paul, 261 A.2d 731, 738 (Md.1970) (noting that the two are “torts that apparently differ only in terminology”). The gravamen of a complaint for false arrest or false imprisonment is an unlawful detention. See Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.1973); 32 Am.Jur.2d False Imprisonment § 7 (2007) (“[t]he essential elements of false imprisonment are: (1) the detention or restraint of one against his or her will, and (2) the unlawfulness of the detention or restraint”). Therefore, “[i]n actions for false arrest and false imprisonment, the central issue is ‘whether the arresting officer was justified in ordering the arrest of the plaintiff....’ “ ( Sharon ) Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985) (citation omitted); see also 32 Am.Jur.2d, supra, § 24 (“the critical question is whether the arrest was made in conformance to the rules governing the validity of an arrest”).



At common law, as at present, an important distinction existed between the justification for effecting an arrest with a valid warrant and the justification for effecting an arrest without a valid warrant. An arrest made “pursuant to legal authority,” such as “a warrant properly issued and facially valid and fair,” provides no basis for an action for false arrest. Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, 7 American Law of Torts § 27:15 (1990); see also Woodward v. District of Columbia, 387 A.2d 726, 728 (D.C.1978) (where arrest warrant was invalid and officers could not have reasonably believed in validity of warrant, arrest “lacked probable cause,” and directed verdict in District's favor could not stand). An officer at common law was only privileged to effect a warrantless arrest if the offense that served as the basis for the arrest was a felony or an offense that involved a breach of the peace. Restatement (Second) of Torts, § 121 cmt.e (1965) (“a peace officer has at common law no greater privilege to arrest without a warrant than has a private person. A private person is privileged to arrest another who in his presence is committing a breach of the peace or an attempt to commit a felony, but is not privileged so to arrest for any other misdemeanor although committed in his presence”); see also 32 Am.Jur.2d, supra, § 72 (no liability for warrantless arrest where officer has probable cause to believe a felony has been committed); Speiser et al., supra, § 27:16, at 1005 (“an officer's authority to make warrantless misdemeanor arrests was limited, however, to offenses involving breach of the peace committed in his presence”). “Such limitation was consistent with the general hostility towards state action untempered by judicial review of applications for warrants.” Speiser et al., supra, at 1005. See also the exhaustive and nuanced examination of the common law on this issue in Atwater v. City of Lago Vista, 532 U.S. 318 (2001).



*4 The authority of officers to effect warrantless arrests for offenses other than felonies or breaches of the peace was subsequently expanded to varying degrees by individual state statutes. Restatement, supra, § 121 cmt.e (“in many states peace officers are given by statute a broader privilege to arrest than is given by common law”); Speiser et al., supra, at 1005 (“many states statutorily extended warrantless arrest authority to include any misdemeanor committed or attempted in the officer's presence”); 7 Am.Jur.2d, supra, § 43 (no liability for warrantless arrest where officer has probable cause to believe a misdemeanor was committed in officer's presence). “The rationale underlying the in-presence requirement [for misdemeanors] is that in view of the less serious nature of the offense, the probable-cause determination should be left to a magistrate....” Id.



Our jurisprudence has reflected this traditional approach. We have stated that where, as here, the plaintiff in a false arrest case shows he was arrested without a warrant, a presumption arises that the arrest was unlawful, and the burden shifts to the government to justify the arrest. Karriem v. District of Columbia, 717 A.2d 317, 320 (D.C.1998); Clarke, 311 A.2d at 511. The operative statutory provision defining the extent to which the District has expanded officers' authority to arrest without a warrant, D.C.Code § 23-581(a)(1),FN8 now reads as follows:



FN8. We have referred to this statute as “a codification of the common law of arrest,” Schram v. District of Columbia, 485 A.2d 623, 624 (D.C.1984), although it has been somewhat expanded over the years by amendments.

(a)(1) A law enforcement officer may arrest, without a warrant having previously been issued therefor-

(A) a person who he has probable cause to believe has committed or is committing a felony;



(B) a person who he has probable cause to believe has committed or is committing an offense in his presence;



(C) a person who he has probable cause to believe has committed or is about to commit any offense listed in paragraph (2) and, unless immediately arrested, may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence; and



(D) a person whom he has probable cause to believe has committed any offense which is listed in paragraph (3) of this section, if the officer has reasonable grounds to believe that, unless the person is immediately arrested, reliable evidence of alcohol or drug use may become unavailable or the person may cause personal injury or property damage.[FN9]



FN9. No contention is made that the officers could have arrested Enders based on authority from § 23-581(a)(1)(C) or (a)(1)(D), which cross-reference a series of offenses listed in § 23-581(a)(2) and (a)(3). No evidence was presented at trial that the officers had any reason to suspect Enders would flee, destroy evidence, or cause personal injury or property damage if not immediately arrested, as required for those subsections to be applicable. The section also contains provisions authorizing arrest without a warrant for intrafamily offenses, panhandling, and certain other specifically enumerated offenses. D.C.Code § 23-581(a-1)-(a-5) (2001).

Reflecting the statutory provision and the common law, this jurisdiction has long observed that a warrantless arrest for a misdemeanor not committed in an officer's presence is, absent an exception, contrary to law. District of Columbia v. Tulin, 994 A.2d 788, 796 (D.C.2010); Schram, supra note 8, 485 A.2d at 624; Bond v. United States, 310 A.2d 221, 223-24 (D.C.1973); District of Columbia v. Perry, 215 A.2d 845, 847 (D.C.1966); Craig v. Cox, 171 A.2d 259, 261 (D.C.1961); ( Gerry ) Scott v. District of Columbia, 322 U.S.App. D.C. 75, 81, 101 F.3d 748, 754 (1996) (Rogers, J.); Maghan v. Jerome, 67 App. D.C. 9, 10, 88 F.2d 1001, 1002 (1937).



*5 As far back as Maghan, for example, a woman brought a false arrest claim based on her arrest on suspicion that she stole a pocketbook, not in the presence of any officers, whose contents were worth “about $30.00.” 67 App. D.C. at 9, 88 F.2d at 1001. At that time, the felony of grand larceny was defined as the taking and carrying away of property of a value in excess of $35. Id. at 10, 88 F.2d at 1002. Taking property valued at less than $35 constituted only petit larceny, a misdemeanor. Id. The circuit court observed, “the rule is settled that an officer may not arrest for a misdemeanor without a warrant unless it is committed in his presence or within his view.” Id. The court further stated, “From this, it follows that the police officers can justify the arrest only by a showing that they had reasonable cause to believe that a felony had been committed.” Id. Because the court held the officers did have probable cause of the felony of grand larceny, the judgment for the plaintiff was reversed. Id.; see also Tulin, 994 A.2d at 796 (observing, in case where jury had found in District's favor on false arrest, that officers' arrest for misdemeanor reckless driving was only lawful because another officer was present when accident occurred); Craig, 171 A.2d at 261 (directing a judgment against officer for false arrest at National Airport where arrest could not be justified by plaintiff's parking violation: statute authorizing arrests at airport only allowed warrantless arrests for misdemeanors committed in officer's presence).



In Schram, Bond, and Perry, this court applied the same principle to motions to suppress evidence obtained as a result of an unlawful arrest. In Schram, we relied on § 23-581(a)(1)(B) in holding that “Schram's arrest was valid only if the police had probable cause to believe a misdemeanor was being committed in their presence.” Supra note 8, 485 A.2d at 624. Because the officers arrested Schram for the misdemeanor of operating a motor vehicle while under the influence of alcohol or drugs, and it was undisputed that the police arrived at the scene only after Schram had exited the car and was no longer operating it, we held that “the arrest was invalid and the [evidence] taken after the arrest must be suppressed.” Id. We rejected the District's argument that, even if the arrest was “unlawful as not being authorized by statute,” “the arrest was made upon what Schram concedes to be probable cause, and thus, ... there is no constitutional deprivation.” Id. at 625. Violation of District law was enough to require suppression. In Perry, we reached a similar result with respect to an arrest that was “invalid” because the misdemeanor offenses of operating an automobile in excess of the speed limit and while under the influence of intoxicating liquor were not committed in the presence of the officer. 215 A.2d at 847; see also Allison v. United States, 623 A.2d 590, 593 (D.C.1993) (describing Schram and Perry and concluding, “we held that evidence must be suppressed because in each case, although the arresting officer had probable cause, he lacked legal authority to make the arrest”). In Bond, we rejected a defendant's argument that his warrantless arrest was illegal, answering in the affirmative the dispositive question of whether the officer had probable cause to believe a felony had been committed. 310 A.2d at 223-24.



*6 In ( Gerry ) Scott, the circuit court held that even though a particular officer had probable cause to believe that appellant Scott had committed a DUI, he lacked authority to make an arrest under District of Columbia law because the offense was not committed in his presence, pursuant to § 23-581(a)(1)(B). 322 U.S.App. D.C. at 81, 101 F.3d at 754. Although the court observed that Scott would have prevailed against that officer under this “technicality of District of Columbia law,” the court held that Scott was actually not arrested until later, by other officers with a different justification. Id.; see also United States v. Williams, 244 U.S.App. D.C. 20, 21, 754 F.2d 1001, 1002 (1985) (remand required on trial court's denial of Williams' motion to suppress evidence seized when he was arrested for violating the District of Columbia disorderly conduct statute, where record was susceptible to the reading that the misdemeanor had not occurred in the officers' presence, which would invalidate the arrest under District of Columbia law).



Despite this long line of cases recognizing the “in the presence” requirement, broad language we have used in some cases may suggest that an officer cannot be held liable for false arrest as long as the officer had “constitutional” probable cause to arrest. See, e.g., District of Columbia v. Minor, 740 A.2d 523, 529-31 (D.C.1999); Tillman v. Washington Metro. Area Transit Auth ., 695 A.2d 94, 96 (D.C.1997); District of Columbia v. Murphy, 631 A.2d 34, 36 (D.C.), aff'd on reh'g, 635 A.2d 929 (D.C.1993); Welch v. District of Columbia, 578 A.2d 175, 176 (D.C.1990); Wade v. District of Columbia, 310 A.2d 857, 862-63 (D.C.1973) (en banc).FN10 Other cases omit the “constitutional” element but still appear to provide a defense if the officer can show he had “probable cause.” Minch v. District of Columbia, 952 A.2d 929, 937 (D.C.2008); ( Sharon ) Scott, 493 A.2d at 321; Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 862 (D.C.1982). Citation is then made to cases which broadly define probable cause as “determined by reference to the objective standard used to determine probable cause in a criminal proceeding....” Tillman, 695 A.2d at 96; Murphy, 635 A.2d at 931; see also Brown v. United States, 590 A.2d 1008, 1012 (D.C.1991) (officer has probable cause if he has reason to believe that a person has “committed” or is “committing an offense”) (citations omitted).



FN10. These cases also expound the correct principle that an alternate legal justification for an arrest, employing a lesser standard, exists on a showing that the officer reasonably believed, in good faith, that his conduct toward the plaintiff was lawful. E.g., Murphy, 631 A.2d at 36. The trial court here gave an instruction to this effect taken from Standardized Civil Jury Instructions for the District of Columbia § 18.03. No argument is made for sustaining the judgment on this basis as a matter of law.

Allowing such a sweeping defense to a false arrest action would appear to be in conflict with our holdings in Schram, Perry, and Bond. In this regard, a recent decision from the Supreme Court may be informative. In Virginia v. Moore, 553 U.S. 164 (2008), the Court held that it would not consider “state-law arrest limitations” in determining what is constitutional in the arrest context, reasoning that the Fourth Amendment and the related issue of suppression should be applied on a uniform basis across the nation. Id. at 175. Moore was an appeal from the denial of a motion to suppress made under the Fourth Amendment, and the Court's concern in that case was that “the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law.” Id. at 178. The offense in Moore, driving on a suspended license, was committed in the presence of the officer but was a non-arrestable offense under Virginia law. Id. at 167. The Supreme Court had previously said with respect to misdemeanor arrests that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The Moore court cites to that case, among others, and the ultimate summary of its holding is that “[w]hen officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest....” 553 U.S. at 178 (emphasis added).



*7 We think our language purporting to equate probable cause with a privilege against false arrest must be read in context. To define the concept of “probable cause” by reference to the federal standard is useful and appropriate in giving substance to the concept of what constitutes a “reasonable belief” that a particular offense has been committed. We see no indication, however, that the cases intended to extend the definition of the specific offenses or crimes for which an arrest may be made under our statute. It appears that the cases suggesting an equation between the constitutional probable cause standard and the defense of privilege in a false arrest suit typically involved arrests for a clear felony or for a misdemeanor for which an arrest might be made under our statute and, in any event, in none of them was any issue raised that the arrest violated the statute. See, e.g., Murphy, 631 A.2d at 37 (offenses were unlawful entry and simple assault committed against arrestee's live-in girlfriend, which may have qualified as an intrafamily offense under § 23-581(a-1)); Welch, 578 A.2d at 175 (offense was “first degree theft”). We are unable to conclude that the general language in these cases can undercut the clear holdings of our cases applying the statutory limitations to the circumstances under which officers may lawfully and without liability arrest without a warrant. Without the availability of a sanction for an officer's exceeding his authority under D.C.Code § 23-581, the statute's limitations on the arrest power would be rendered effectively nugatory.FN11



FN11. A somewhat similar issue may arise when a plaintiff brings an action under both 42 U.S.C. § 1983 and the common law. We have held that a judgment in favor of the defendant under the federal statute is not necessarily controlling on liability under a common law cause of action. See Scales v. District of Columbia, 973 A.2d 722, 729 (D.C.2009).

Other jurisdictions have construed local laws similar to the District's and held that an action for false arrest will lie if the arrest was made in contravention of the local law, despite the presence of probable cause. See Bailey v. Kennedy, 349 F.3d 731, 746 (4th Cir.2003) (construing North Carolina statute allowing warrantless arrests for misdemeanors not committed in officer's presence only when suspect will not be apprehended unless immediately arrested or may cause physical injury or property damage); Collins v. Sadlo, 306 S.E.2d 390, 392 (Ga.Ct.App.1983) (construing Georgia statute that allows for warrantless arrests for offenses not committed in officer's presence only when exigent circumstances exist); Great Atlantic & Pacific Tea Co., 261 A.2d at 738-39 (under Maryland law, no authority to arrest simply on probable cause that misdemeanor had been committed; clarifying that “probable cause is not a defense to an action for false imprisonment but legal justification is”); Ware v. Dunn, 183 P.2d 128, 132-33 (Cal.Dist.Ct.App.1947) (noting the in-the-presence rule and observing, “[w]e are not cited to a single case involving a misdemeanor wherein the conduct of an officer in making an arrest or detaining a person was considered in the light of ‘reasonable grounds' or ‘probable cause’ for causing such detention”).



In Collins, the Georgia Court of Appeals reversed an award of summary judgment for the defendant officer in a false arrest case where the arrest was made without a warrant, for a crime not committed in the officer's presence. 306 S.E.2d at 391. A Georgia statute held that such an arrest may only be made if exigent circumstances existed. Id. The court was nevertheless confronted with a prior decision of the Georgia Supreme Court that appeared to hold that officers may defeat a false arrest claim simply by showing probable cause existed for the arrest. Id. at 392. The Court of Appeals held that the award of summary judgment could not stand because under the clear language of the statute, the arrest was only valid if exigent circumstances existed, and issues of fact remained as to the existence of these exigent circumstances. Id. The court stated, “It is clearly apparent that the use of ‘probable cause’ in [the Georgia Supreme Court opinion] was a short-hand reference, commonly employed by courts in warrantless situations, to mean the existence of probable cause and exigent circumstances as the basis for upholding the warrantless action....” Id. We think the Georgia court's approach is correct, and we adopt it here.FN12



FN12. The language of the standard jury instruction for justification for arrest by a law enforcement officer, now § 18.03, has differed markedly over the years. The original instruction in 1968 permitted warrantless arrests only for felonies and for misdemeanors specified in the statute. The 1981 edition also was limited to the statutory crimes. In the 1988 revision, the instruction was extensively expanded and language included that stated that an arrest is justified if the officer had probable cause, defined as reason to believe that a “crime” has been or is about to be committed, apparently based on what we conclude to be a misreading of Murphy and like cases, as discussed above.

*8 Section 23-581, and our cases construing it, compel a conclusion that a warrantless arrest for a misdemeanor not committed in the officer's presence constitutes a common-law false arrest, unless the defendant can show that the requirements listed in § 23-581(a)(1)(C), (a)(1)(D), or (a-1)-(a-5), have been met. Language in prior decisions of this court that suggests a defendant may defeat a common-law false arrest claim merely by showing “probable cause” existed must be read to incorporate the common-law requirements for a lawful arrest. We reaffirm that, as our cases have said, probable cause will defeat a claim of false arrest, but we clarify that this is only true to the extent that “probable cause” is synonymous with legal justification to effect the particular arrest in question. This is because in actions for false arrest and false imprisonment, the “central issue” has always been “whether the arresting officer was justified in ordering the arrest of the plaintiff.” Moorehead v. District of Columbia, 747 A.2d 138, 147 (D.C.2000); Murphy, 631 A.2d at 36; ( Sharon ) Scott, 493 A.2d at 321. Where probable cause is merely used as a synonym for a particular quantum of suspicion to believe a crime has been committed, without more, it will not defeat a common-law claim of false arrest.



In the present case, where the arrest was effected without a warrant, the court was obligated to instruct the jury that a defendant can defeat a false arrest claim by showing the arrest was legally justified. Legal justification to effect a warrantless arrest, in turn, means either probable cause to believe a felony has been committed or probable cause to believe a misdemeanor has been committed in a manner specified in § 23-581.FN13 Because the court's instructions in the present case instead allowed the jury to find the District had defeated the claim on a lesser showing, the instructions were erroneous and prejudicial.FN14



FN13. The instructions may also properly inform the jury that, as our cases have said, a defendant may defeat a false arrest claim by showing the defendant had a reasonable, good-faith belief in the legality of the arrest. See supra note 10.

FN14. We cannot say, with fair assurance, that the error in the present context was harmless. See Kotteakos v. United States, 328 U.S. 750, 765 (1946). Given the erroneous instructions and the context of the trial, the jury clearly could have based its verdict solely on the conclusion that the police had probable cause of the claimed misdemeanors but not of any felonies. See, infra, Part III.B.

III. The District's Arguments

It is, of course, true that we may affirm a judgment on any valid ground, even one not relied on by the trial court, provided the appellant will suffer no procedural unfairness. Randolph v. United States, 882 A.2d 210, 218 (D.C.2005); In re Walker, 856 A.2d 579, 586 (D.C.2004). Therefore, we now turn to the two arguments that the District asserts are sufficient to affirm the judgment, even if the trial court's instruction was erroneous, and which, indeed, the District presents to us as the only two issues on appeal.



A. Adequacy of the § 12-309 Notice

Five months after the collision, Enders sent a letter to the Mayor of the District of Columbia, stating his intent to file a false arrest claim against the District “in connection with a false arrest made of [him] on 1/27/2002 by an officer of the Metropolitan Police Department.” This letter was apparently an attempt to comply with the requirements of D.C.Code § 12-309, which states:



An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.


*9 D.C.Code § 12-309 (2001). After sending the letter, Enders filed his complaint for false arrest in the Superior Court.

The District moved in the trial court to dismiss, arguing that the letter was insufficient notice under § 12-309 because it did not state the place of the injury or the underlying circumstances. The trial court denied the motion, stating, “While the notice letter did not explicitly state the ‘circumstances' and ‘place’ of the injury, the police record of the arrest provided that information.” We think the trial judge was correct.



Section 12-309 was designed to “(1) protect the District of Columbia against unreasonable claims and (2) to give reasonable notice to the District of Columbia so that the facts may be ascertained and, if possible, deserving claims adjusted and meritless claims resisted.” Gaskins v. District of Columbia, 579 A.2d 719, 721 (D.C.1990) (quoting Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C.1978)). The plain language of the statute allows for a written police report, standing alone, to constitute sufficient notice. D.C.Code § 12-309 (2001). The District concedes that the letter provided by Enders, read together with the police report of the arrest Enders identifies in the letter, provides all of the required notice under the statute. However, it argues that the trial court should not have read the two documents together as providing adequate notice, because the language and purpose of the statute show that “the document purporting to satisfy the statute ... must independently contain all of the information required by the statute.” Our case law leads to the opposite conclusion.



This court has long held that “although strict compliance with § 12-309's requirement that timely notice be given to the District is mandatory, greater liberality is appropriate with respect to the content of the notice.” Wharton v. District of Columbia, 666 A .2d 1227, 1230 (D.C.1995); see also Washington v. District of Columbia, 429 A.2d 1362, 1365 (D.C.1981) (en banc) (“with respect to the details of the statement giving notice, precise exactness is not absolutely essential”) (citations and quotation marks omitted); Doe by Fein v. District of Columbia, 697 A.2d 23, 27 (D.C.1997) (content requirements are to be interpreted liberally, and “in close cases doubts are to be resolved in favor of compliance”). We have observed that “[t]he degree of specificity required under the statute ... is the same whether the claimant provides written notice to the District or relies instead on an official police report.” Washington, 429 A.2d at 1365.



Contrary to the District's argument, this jurisdiction has not required that the District be given notice of an impending suit in a single document. See Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C.1954). In Hurd, the defect in one letter sent to the office of the Corporation Counsel was cured by a second letter sent to the Inspector of Claims. Id. Even though the two notices were sent to different offices within the District government, the statute's purpose was satisfied: “From the two letters there is no doubt that the District could have located the place of injury, and made a sufficient investigation to decide whether to settle the claim or prepare to defend against it.” Id. This court has held in subsequent cases that where the District is given facts that would allow it to comprehend through a reasonable investigation the circumstances underlying the claim, the notice is sufficient. See Gaskins, 579 A.2d at 722 (notice sufficient where it identified location of fall as somewhere on a 150-foot stretch of sidewalk); Dixon v. District of Columbia, 168 A.2d 905, 907 (D.C.1961) (letter sufficient where it indicated fall occurred on sidewalk rather than in gutter); Romer v. District of Columbia, 449 A.2d 1097, 1101 (D.C.1982) (plaintiff did not need to include loss of consortium claim in notice letter where investigation by District could disclose plaintiff's marital status and thus existence of possible claim). In Allen v. District of Columbia, 533 A.2d 1259 (D.C.1987), we held that a letter to the Mayor's office provided adequate notice under § 12-309 when it gave the District enough information to “enable[ ] the District to initiate its investigation by obtaining police reports and other prosecution records concerning the criminal case.” Id. at 1264. This was so because it “provid [ed] the District with the details necessary for it to go directly to the governmental departments involved in the injuring event and receive additional information about the basis for the claim.” Id. Given these precedents, and given that a police report in itself can suffice to provide adequate notice to the District, we hold the notice given in this case was sufficient to satisfy § 12-309.



B. Judgment as a Matter of Law

*10 The District alternatively contends as a ground for affirmance that as a matter of law, there was no false arrest in this case. It argues that, even viewing the evidence in the light most favorable to Enders, it must be concluded that the officers had probable cause to arrest for malicious destruction of property in excess of $200, a felony offense.FN15 Although Enders was never charged with this offense, the District correctly asserts that in defending against a claim of false arrest, the District can prevail if it can show that probable cause existed to arrest for any offense, even if it differs from the offense for which the arrest was actually made, provided that the consequences for the plaintiff probably would have been substantially as unfavorable.FN16 Etheredge v. District of Columbia, 635 A.2d 908, 920-21 (D.C.1993). The problem, however, is that in our judgment, the limited record here does not support a finding of probable cause on felony destruction of property as a matter of law so as to remove the issue from a properly instructed jury.



FN15. More precisely, the damage must be “$200 or more.” D.C.Code § 22-303 (2001).

FN16. And provided that, in a warrantless arrest context, the offense was arrestable pursuant to D.C.Code § 23-581. See, supra, Part II.

The issue of probable cause in a false arrest case is a mixed question of law and fact that the trial court should ordinarily leave to the jury. Murphy, 631 A.2d at 36; Safeway Stores, 448 A.2d at 862; May Dep't Stores Co. v. Devercelli, 314 A.2d 767, 771 (D.C.1973). It is only where the facts are undisputed or clearly established that probable cause becomes a question of law for the court. Henderson v. District of Columbia, 493 A.2d 982, 994 (D.C.1985); Safeway Stores, 448 A.2d at 862. “Where the undisputed facts considered in the light most favorable to the [arrestee] establish probable cause, then a directed verdict or judgment n.o.v. is appropriate.” Safeway Stores, 448 A.2d at 863. Judgment as a matter of law cannot be granted unless the evidence is “so clear that reasonable men could reach but one conclusion.” District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.1982) (declining to grant District judgment as a matter of law on issue of whether officers had reasonable suspicion to conduct a Terry stop), vacated in part on reh'g, 458 A.2d 414 (D.C.1983).



The determination of whether probable cause existed must be made based on the information known to the arresting officers. See Murphy, 631 A.2d at 37 n. 4 (observing the “curious double perspective” courts must undertake when considering whether as a matter of law officers had probable cause to arrest). We must therefore analyze the evidence presented to the arresting officers at the scene, in the light most favorable to Enders, to determine whether a reasonable jury must have reached only one conclusion, that the officers had probable cause to arrest for malicious destruction of property of $200 or more.



The difficulty we have in coming to such a conclusion as a matter of law is the paucity of evidence as to the damage to Cravedi's car that was visible at the scene. The testimony of Enders and of Cravedi were starkly at odds on this issue, both as to cause and as to extent. The only visual evidence of damage was provided by Enders, through a photo that he obtained from police records. The photo, which is part of the record on appeal, only shows a small white mark on the far left side of Cravedi's bumper area. Cravedi's car was blue; Enders' car was red. While Cravedi testified that the mark was a scratch or dent several inches long that contained a bit of red paint, she admitted that none of these details were revealed by the photograph. Enders asserted that the marking was minimal at best and may even have pre-existed the incident. Cravedi also testified that the repair to the scratch cost her $220, but no receipt for the repairs or other supporting evidence was presented; and, of course, the officers did not have any such information at the time of the arrest. Moreover, with the burden of proof on the government, the jury had no obligation to credit all the testimony of the possibly biased Cravedi as to what the scene itself presented .FN17



FN17. Enders in cross-examination raised issues of Cravedi's complete credibility by showing inconsistencies between her account of the incident as reflected in the police documents and her testimony at trial, particularly as to whether Enders' car hit her bumper squarely from behind or more to the side, where the white mark was located.

*11 As already mentioned, the District did not present the testimony of any officer who had any recollection of the investigation, although about a half-dozen officers eventually became involved.FN18 The several police documents submitted into evidence were totally silent on the matter, save a single notation that the impact caused “minor damage.” Although it is not determinative, it is noteworthy that no charge of malicious destruction of property was brought against Enders.FN19 Indeed, Enders testified that during the hour or so when the officers were trying to figure out what to do, “one after another, the officers that were there came over and looked at the cars, looked at the bumpers, just peered high and low, looking all around the back bumper of her car, the front bumper of mine, looking for damage.... Eventually they gave up and went back to the coffee and conversation on the other side of the street.” Also in evidence was Enders' statement that he only lightly tapped Cravedi's rear bumper, as one would if one were parallel parking. Even if the jury believed the white mark on Cravedi's bumper was caused by Enders' actions that day, the jury could certainly see the size of this mark as consistent with Enders' account of how light the contact was.



FN18. The limited nature of the evidence at trial, the evidentiary portion of which occupied only a single afternoon, may have been affected by the pretrial ruling of the trial court that probable cause to arrest for any crime or offense would suffice to insulate the District from liability.

FN19. A citation was issued for leaving the scene of an accident, which is an offense only if the accident caused “substantial” damage. D.C.Code § 50-2201.05(a)(1) (2001). We do not think this aspect can tip the balance to a finding of probable cause of $200 damage as a matter of law, and the District makes no argument to this effect. Precisely what the word means in context and whether “minor damage” qualifies may be debated. Moreover, there was testimony by the sole police officer that indicated that he had no understanding that such damage was required as part of the offense.

To be sure, as already noted, the relevant inquiry in a false arrest defense is not what the actual facts may be but rather what the officers could reasonably conclude from what they were told and what they saw on the scene. Murphy, 631 A.2d at 37 n. 4. Furthermore, the determination by an officer that probable cause exists “does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands.” Gerstein v. Pugh, 420 U.S. 103, 121 (1975). This jurisdiction does not impose on arresting officers “the duty of a ... positive and direct ascertainment of the exact amount of the money” in determining whether probable cause exists for a crime involving a dollar value. Maghan, supra, 67 App. D.C. at 10, 88 F.2d at 1002.FN20 But where, as here, the evidence of the amount of the damage was so limited and in conflict, we simply cannot conclude that there was “undisputed evidence requiring a conclusion, as a matter of law, that the officers had a reasonable, good faith belief in the lawfulness of the arrest.” Murphy, 631 A.2d at 38 (emphasis added). Rather, in this case, “[s]ince the facts necessary to a finding of probable cause were in dispute, the court did not err in leaving the resolution of that factual dispute to the jury.” Henderson, 493 A.2d at 994; see also May Dep't Stores, 314 A.2d at 772 (given conflicting testimony, “it was manifestly for the jury to weigh the evidence” and determine whether probable cause existed).FN21



FN20. In Maghan, as already recounted, the required value for a felony was $35. The court noted that it was undisputed that the purse contained $30 and that the purse itself must have had some value. It thus characterized the issue as a “border-line” case. 67 App. D.C. at 10, 88 F.2d at 1002.

FN21. We decline to consider the District's contention, made only in passing, that probable cause existed as a matter of law for ADW (car). The District does not make any arguments or cite any authority in support of this contention. Rather, after briefing the issue of probable cause of malicious destruction of property in excess of $200, the District simply asserts in a footnote that probable cause also existed for ADW but that “the Court need not reach this issue.” While the principle may not apply to appellees with the same force as appellants, we have noted that “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” McFarland v. George Washington Univ., 935 A.2d 337, 351 (D.C.2007); see also Bardoff v. United States, 628 A.2d 86, 90 n. 8 (D.C.1993) (arguments raised but not argued in briefing are treated as waived).

Accordingly, we vacate the judgment in favor of the District and remand for a new trial.



So ordered.