| Defending Drinking
Drivers |
| Back to the book page |
|
To quickly search for key terms, use your browser's 'Find' function, found in the 'Edit' menu. |
|
|
Chapter 1 The Offense §100 Introduction §101 Law §102 Science §103 Proposals for Reform §103.1 Congressional Action §103.2 Recommendations of Presidential Commission §103.3 ABA National Committee §103.3.1 Areas Examined §103.4 MADD Proposals §103.5 Drunk Driving Prevention Act of 1988 §103.6 Department of Transportation Report §104 Alcohol Test Program Survey §105 DWI Defense at the Millennium: A Look at Two Decades’ Changes §110 Elements of the Offense §120 Common Law Problems §121 Corpus Delicti of the Traditional Offense §121.1 Driving §121.1.1 Drive or Be in Actual Physical Control §121.1.2 Drive or Operate §121.1.3 Defendant’s Own Admissions §121.2 A Motor Vehicle §121.3 On a Public Road §121.3.1 Jurisdiction and the Posse Comitatus Act §121.3.2 Hobbs Act Jurisdiction §121.3.3 Definition of “Highway” in Drunk Driving Statute Does Not Apply to Felonious Driving §121.4 Under the Influence §121.4.1 Requirement of Impairment §121.5 Never Concede the Corpus: Make the State Prove the Defendant Was Driving Under the Influence §130 Statutory Problems §131 In General §132 Per Se Statutes §132.1 Irrebuttable Presumption of Guilt Challenged §132.2 Statute Void for Vagueness §132.2.1 Court Rulings §132.2.2 Scientific Arguments Support Vagueness Challenge §132.2.3 Practical and Scientific Arguments More Likely to Succeed in Per Se Challenge §132.2.4 Evidence of Intoxication Warranted Reversal When Offered to Sustain Per Se Charge §132.2.5 Attack Jury Instructions on Conclusive DWI Presumptions §132.2.6 Pennsylvania Strikes Down Variation on “Per Se” DUI Law §132.2.7 Delaware Courts Strike Down BAC Statute §140 Defenses §141 Based on Elements of the Offense §141.1 Driving a Motor Vehicle §141.2 Actual Physical Control of the Vehicle §141.3 Driving Under the Influence §142 Per Se Statutes §143 Involuntary Intoxication §144 Constitutionality of the Statute §145 Habitual Offenders §146 Using a PTSD Diagnosis to Defend a Drunk Driving Case §147 Justification Defense §150 Special Problems §151 Felony Drunk Driving §151.1 Leaving Scene of Accident Charge Required That Defendant’s Vehicle Caused Injury or Death §151.2 Felony DUI Dismissed Where Previous Enhancement Convictions Were Obtained Unconstitutionally §151.3 Avoid Attacking the Victim in Drunk Driving Felony Trials §152 Vehicular Homicide §152.1 Aggravated Homicide §152.2 Defense May Subpoena DOT Accident Investigation Studies in Vehicular Homicide Trial §152.3 Evidence That Defendant Was Driving on Suspended License Irrelevant to Charges of Reckless Driving, Manslaughter and Vehicular Homicide §153 Manslaughter §153.1 California Rejects Proof of Recklessness as a Requirement for Manslaughter Conviction §153.2 Finding of Involuntary Manslaughter Unlikely in a Drunk Driving Case §153.3 Drunk Driving Manslaughter as a Strict Liability Offense §153.4 Hitting Dead Body Not Tantamount to Hit and Run §153.5 Court Erred in Instructing Jury that “Contributing Cause” Is Causation in Charge of Operating Vehicle While Intoxicated Causing Death §154 Second Degree Murder §154.1 Degree of Intoxication and Punishment §154.2 Rebuttable Presumption of Intoxication Not Applied to Homicide Charge §154.3 Dealing With Dual Charges: Defending Against Drunk Driving and Reckless Driving §154.4 Court Erred in Giving Instruction in DUI Manslaughter Case §154.5 “Extreme Indifference to Value of Human Life” Element of Second Degree Murder Can Be Shown by Prior Convictions and Refusal to Abide by Terms of Probation §155 Combatting Prosecutorial Misconduct §155.1 Defendant’s Reliance on Prosecutor’s Promises §155.2 Police Misconduct: Use of Do-Rite Sticks §155.3 Remedies for Breaches of Plea Agreements §155.4 “Forcible” Blood Tests and Fourth Amendment Violation §156 Drunk Driving as Felony Child Neglect §156.1 Possible Constitutional Challenges §156.2 The Defense Strategy §156.3 Conviction Reversed on Child Abuse by Driving While in Impaired Condition With Children in Car §157 The Drunk Driving Defense Fee §157.1 The Fordham Facts §157.2 The Hearing Committee Findings §157.3 Court Proceedings §157.4 Factors Considered §157.5 The Expert Testimony §158 Americans With Disabilities Act §158.1 Americans With Disabilities Act Claim Is Not Implicated in Drunk Driving Arrest §158.2 Denial of Request for Sign Language Interpreter Does Not Violate Americans With Disabilities Act §158.3 Using the Americans With Disabilities Act to Keep Field Sobriety Test Results Out of Evidence §159 A Blanket Strip Search Policy of All Arrestees Violates the Fourth Amendment §160 Driving Under the Influence of Drugs §161 The Drug Evaluation and Classification Program §162 The Drug Influence Evaluation Form Sample: Drug Influence Evaluation Form §163 Admissibility of DRE Evidence §163.1 Drug Recognition Protocol in Visual Exam for Nystagmus Passes Frye Test §163.2 The DRE Protocol and Frye §163.3 Drug Recognition Protocol Satisfies Frye Test for Admissibility §163.3.1 Drug Recognition Testimony is Sufficiently Reliable for Scientific Evidence to be Admissible to Show Defendant was Under the Influence of Controlled Substance §164 The Halcion Defense §164.1 Zolpidem and Driving Impairment §164.2 Driver May Assert Involuntary Intoxication Defense. §164.3 Defending the Driving Under the Influence of “Ecstasy” Case §165 Aspirin, Ibuprofen and Alcohol §166 Expert May Testify on Synergy of Cocaine and Alcohol §167 Driving Under the Influence of Nonprescription Drugs §168 Effects of Alcohol With Other Drugs §168.1 Failure to Prove Connection Between Drug Use and Impaired Judgment/Motor Skills Results in Reversal of Conviction §169 Zero Tolerance and Automatic Suspension §169.1 Zero Tolerance Crimes for Drugged Drivers §169.2 Automatic Suspension of Driver’s License Upon Conviction of Drug Crime Upheld §170 Defending Against Legal Malpractice Claims §171 Ineffective Assistance of Counsel Requires Actual Showing of Prejudice, Not Only Incompetence §180 The New Federal Rules of Evidence and the Defense of Drunk Driving Cases §190 Special Problems: Representing Truckers in Drug and Alcohol Cases
Chapter 2 Chemical Evidence §200 Alcohol in General §201 Absorption and Elimination §201.1 Absorption §201.2 Elimination §202 Retrograde Extrapolation §203 Erroneous Use of Retrograde Extrapolation by Prosecutors §203.1 Court Rejects Extrapolation Evidence §203.2 Implied Consent License Revocations May Not Require Extrapolation of BAC Results §203.3 Attacking Prosecution’s Extrapolation Evidence §203.3.1 State May Not Use Retrograde Extrapolation to Counter Statutory Prohibition §203.4 Prosecutor’s Reference to Retrograde Extrapolation Does Not Require Mistrial §203.5 Kentucky Does Not Require Relation-Back Evidence to Sustain a Conviction for Per Se DUI §203.6 Statutory Provision Allowing State to Rely on BAC Testing Results Without Extrapolation Upheld §203.7 Evidence of Retrograde Extrapolation Properly Admitted §203.8 Court Erred in Admitting Retrograde Extrapolation Evidence §203.9 BAC at Time of Vehicle Operation Rather Than BAC at Time of Test Controls on Guilt for Offense of Driving Under the Influence of Alcohol §203.10 No Need for Extrapolation of BAC Results §203.11 Error to Convict Defendant Without Retrograde Extrapolation §204 Rising Blood Alcohol Defense §204.1 Rising Blood Alcohol Defense Questioned §204.2 Additional Information on the Rising Blood Alcohol Defense §205 The EZ-ALC Blood Alcohol Computer Program §206 Methods to Hand-Calculate BAC §207 Sex-Related Differences in BAC §208 Test Specimens §220 Breath Analysis §221 General Points §222 Henry’s Law §223 The Fixed Partition Ratio §223.1 Problems With the Fixed Partition Ratio §223.2 Experts Debate Problems With Blood/Breath Ratio §223.3 Constitutionality of the Fixed Partition Ratio §223.4 Expert Testimony on the 2100:1 Ratio §223.5 The Variability of Petition Ratio Is Irrelevant in “Per Se” Drunk Driving, but Relevant in Prosecution for Driving While Impaired §223.6 Nebraska Court Rejects 2100:1 Ratio and Adjusts Margin of Error in Favor of Defendant §223.6.1 Facts of Burling §223.6.2 The Nebraska Statutes §223.6.3 The Expert Testimony in Burling §223.6.4 The Burling Court Analysis §223.6.5 The Court Adjusts the Margin of Error §223.6.6 The Importance of the Burling Ruling §223.6.7 Checklist for Attacking the Fixed Partition Ratio §223.6.8 Sample Cross-Examination on Partition Ratio §223.6.9 Partition Ratio Deemed Irrelevant Under Breath Alcohol Concentration Statute §223.6.10 Direct Breath Alcohol Statutes §223.6.11 Using Cross-Examination to Attack the Partition Ratio §223.7 Studies of the Accuracy of Breath Testing §223.8 Sources of Error in Breath Testing §223.8.1 Recent Study Indicates Breath Alcohol Analyzers Are Not Specific for Ethanol §223.9 Problems With Pennsylvania Breath Testing §223.9.1 Pennsylvania Breathalyzer “Simulator Solution” Problems §223.9.2 Calibration and Testing of Breath Analyzer Does Not Make Test Results Presumptively Accurate §223.9.3 Police Officer’s Testimony May Not Be Used to Re-Adjust Machine’s Margin of Error When Motorist’s Breath Test Results Are Borderline §223.9.4 Pennsylvania Strikes Down Variation of “Per Se” Law §223.9.5 Legislature’s Response to Commonwealth v. Barud Suffers From Some of the Same Problems That Doomed Predecessor Law §225 Fuel Cells §226 Radio Frequency Interference §227 Mouth Alcohol §227.1 Silent Regurgitation §227.2 Gastro-Esophageal Reflux Disorder (GERD) and Silent Regurgitation §227.3 Dentures and Denture Adhesives §227.4 No Physical Inspection Required §227.5 Slope Detection and Mouth Alcohol §227.6 Cross-Examining the Officer on Observation §230 Breath Analysis: The Machines §231 Breathalyzer §231.1 Theory and Operation §231.2 Sources of Error §231.3 Additional Sources of Error §231.4 Breathalyzer 2000 §231.4.1 Sources of Error in the Breathalyzer 2000 §232 Intoxilyzer §232.1 Theory and Operation §232.2 Sources of Error §232.3 Intoxilyzer 5000 §232.4 Court Acceptance of the Intoxilyzer 5000 §232.5 Problems With Intoxilyzer 5000 Air Blank §232.6 The Intoxilyzer Series 6800 and 6801 §233 Intoximeter §233.1 Theory and Operation §233.2 Sources of Error §233.3 Intoximeter 3000 §233.4 Modified Intoximeter Requires Recertification for Test Results to Be Admissible §234 BAC Verifier §234.1 Theory and Operation §234.2 Sources of Error §234.3 A Product-Liability Defense §234.4 The DataMaster §234.4.1 Problems With the DataMaster §234.4.2 State’s Failure to Approve Test Methods for BAC Datamaster Flaws Test Results §234.5 New Protocol for Maintaining Breath Test Devices Does Not Deny Defendant Due Process §234.6 The New DataMaster “DMT” §234.6.1 Theory and Operation §234.6.2 How the DMT Is Different from the Standard DataMaster §234.6.3 States That Have Adopted or Are Considering Adopting the DMT §235 The UCC Defense in Drunk Driving Trials §236 “Margin of Error” Evidence §236.1 What Is the “Margin of Error?” §236.1.1 Margin of Error Evidence Is Irrelevant in License Revocation Proceedings §236.2 When Does the Margin of Error Evidence Apply? §236.3 Effect on Probative Value §236.4 Applying the Margin of Error in the Accused’s Favor §236.5 “Machine Round Up” §236.6 Preserving the Record §236.7 Motorist Facing Suspension of Driving Privileges Is Not Entitled to Have Test Results Reduced by Margin of Error §237 The “Miles Apart” Defense §238 The Draeger 710MKIII §238.1 Summary of State Breath Alcohol Testing Methods §240 Blood Analysis §241 Legal Requirements §242 Enzymatic – Serum Blood Testing §242.1 Theory and Operation §242.2 Source of Error in Enzymatic Analysis §242.3 Automated Enzymatic Analysis §242.4 Serum Blood Test Results Generally Unreliable §242.4.1 Unreliability Based on Conversion to Whole Blood §242.4.2 Uncertainty in the Serious Trauma Accident §243 Gas Chromatography – Whole Blood Testing §243.1 Theory and Operation §243.2 Possible Defenses to the Whole Blood Gas Chromatography Result §243.2.1 Proper Collection of the Blood Sample §243.2.1.1 Alcohol Contamination During the Blood Draw §243.2.1.2 Microbial Contamination During the Blood Draw §243.2.2 Blood Sample Kits §243.2.3 Transportation of the Blood Sample – Chain-of-Custody Issues §243.2.4 Blood Sample Storage Issues §243.2.5 Blood Test Preparation, Testing and Reporting Issues §244 Toxicology Reports §244.1 The Purpose of the Toxicology Report §244.2 What Is Being Measured in the Toxicology Report? §244.3 Understanding Units of BAC Measurement §250 Urinalysis §251 Theory and Operation §252 Urinalysis and Per Se Legislation §252.1 The Rejection of Urinalysis Results by the Courts §252.2 Urine Test Does Not Prove Presence of Controlled Substance in Blood §252.3 Defendant May Challenge Conversion Ratio in Urine Test §252.4 Urine Test Results Obtained and Tested That Did Not Follow National Institute of Drug Abuse Guidelines Were Inadmissible at Defendant’s Trial §260 SCRAM – Alcohol Monitoring Ankle Bracelets §261 Theory and Operation §262 The Possibility of False Positives §263 Due Process Issues With SCRAM §264 Defending the Alleged SCRAM Violation
Chapter 3 Pre-Trial Preparation §300 Initial Client Contact §301 Obtaining the Client’s Release From Jail §302 Interviewing the Client at the Law Office §302.1 Chronology of the Incident §302.2 Prior Criminal Record §302.3 Identity of Witnesses §302.4 Statements or Admissions §302.5 Miranda or Implied Consent Rights §302.6 Other Factors §303 Sizing Up the Client §304 Educating the Client §305 The Celebrity Client §306 Injured Drunk Driver §310 Evaluating the Case §311 The State’s Case §311.1 In General §311.2 Officer’s Observations §311.3 Field Sobriety Tests §311.4 The State’s Chemical Evidence §311.5 State’s Witnesses §311.6 Client’s Prior Convictions §312 The Defense Case §312.1 The Constitutional Right to Present a Meaningful Defense §312.2 Defense Witnesses §312.3 Expert Witnesses §312.4 Possible Defenses §312.5 Potential Penalties §313 Under the Influence vs. Per Se Guilt §313.1 In General §313.2 “Under the Influence” Analyzed §314 Plea Bargaining vs. Trial §314.1 In General §314.1.1 Consider Different Terminology: Plea Negotiation §314.2 Instructing Client on Potential Defenses §314.3 Effects of Guilty Plea §314.4 Advising the Guilty Plea §314.5 Improper Conditions on Guilty Plea §314.6 The Court Determines that California Statute Does Not Bar All Plea Bargains §314.7 Barring Improper Use of Defendant’s Statements Made During Plea Negotiations §314.7.1 Use of Statements Made During Plea Negotiation §314.8 Plea Agreement Has Binding Effect on State Agencies §315 Judge vs. Jury Trial §315.1 Voir Dire §316 Summary §317 Claims Against the State §320 Use of Investigators §321 In General §322 Interviewing Witnesses §323 Visiting the Scene §330 Expert Witnesses §331 In General §332 Selection §332.1 A Constitutional Right to Forensic Experts §332.2 Expert Assistance for the Indigent Client §333 Preparation §334 Strategy §334.1 Use of Demonstrative Aids §334.2 Hypothetical Questions §335 Cross-Examination of the State’s Experts §335.1 The Machine Operator §335.1.1 Making Fundamental Objections §335.2 The Administrative Officer §335.3 The Forensic Expert §335.3.1 Impeaching the State’s Expert §335.3.2 Obtaining Information to Impeach the State’s Expert §335.3.3 Questioning the Conduct of Expert Witnesses §335.4 The Defense Expert §335.5 Court Appointed Experts §335.6 State’s Cross-Examination and Impeachment of Defense Expert Deemed Proper §335.7 The Police Officer Gave Improper Opinion Testimony That Defendant’s Intoxication on a Scale of 1 to 10 Was a “10 Plus” §335.8 Court Erred in Precluding Defendant From Cross-Examining Officer About NHTSA Training §335.9 Attacking the Expert’s Qualifications §336 Expert Witness Directory §337 The Prosecutor §340 Resource Material
Chapter 4 Pre-Trial Discovery §400 The Right to Discovery §401 Rule 16 Discovery §401.1 Statements §401.2 Reports and Results §401.3 Prior Convictions §401.4 Court Improperly Denied Defendant’s Request for Discovery of Testing Laboratory Standards and Other Records §402 Audiovisual Evidence §402.1 Strozier Defines a Proper Foundation §402.2 A Break in the Chain of Custody May Mean Acquittal §402.3 State’s Failure to Videotape May Provide Exculpatory Argument §402.4 Videotaping Upheld in Ramirez §402.5 Videotaping as Reversible Error §402.6 Discovery of Taped Evidence §402.7 “Silent Witness Theory” as Foundation §403 Freedom of Information Act §403.1 Obtaining Government Reports §404 Discovery Orders §410 Procedures in General §411 Motions §412 Constitutional Issues §420 Protective Orders §430 Sanctions §431 Appropriate Sanctions as Determined by the Court §432 Defendant’s Remedies for Officer’s Falsification of Breath Tests
Chapter 5 Pre-Trial Motions §500 In General §510 Motions in Limine §511 Disadvantages of Motions in Limine §512 Timing and Form §513 Admissions and Confessions in Drunk Driving Cases §513.1 Admissions §513.1.1 Personal Admissions §513.1.2 Adoptive Admissions §513.1.3 Foundation Requirements §513.1.4 Vicarious Admissions §513.1.5 Judicial Admissions §513.2 Confessions §513.2.1 Tactics for Dealing With Confessions §514 Blood Alcohol Tests and the Unconscious Driver §515 Sixth Amendment Waiver Does Not Require an Advisory on the Value of Counsel at the Plea Stage §516 Crawford and Drunk Driving Cases §516.1 Defendant Must Be Given an Opportunity to Cross-Examine Affiant Re Testimonial Statements of Circumstances of Blood Draw §516.2 Applicability of Crawford to Breath Test Cases §520 Motion to Strike Prior Convictions §521 The Basis for Attacking Prior Convictions §522 Sentence Enhancement §523 Federal Court Relief §523.1 Petition for Writ of Habeas Corpus §524 Uncounseled Convictions and Sentence Enhancement §524.1 Tribal Conviction May Be Used to Enhance State DUI Charge §525 Disposition of Supervision Does Not Constitute Prior Conviction for Sentence Enhancement §526 Apprendi and Prior Convictions: In Which Direction Is the Court Headed? §526.1 Court’s Failure to Advise the Defendant of His Right to a Jury Trial Results in Exclusion of a Prior Conviction §526.2 Apprendi Applies to Drunk Driving Cases §527 Waiver of Right to Counsel §528 Court Had Duty to Inquire Into Defendant’s Capacity to Enter Knowing and Voluntary Plea §530 Motions to Dismiss §531 Double Jeopardy §531.1 Actual Jeopardy §531.2 Multi-Jurisdictional Offense §531.3 Multiple Prosecutions Stemming From One Incident §531.4 Separate Convictions When More Than One Injury §531.5 Double Jeopardy Can Apply to Court Errors §531.6 Double Jeopardy Does Not Attach Until Evidence is Received §531.7 Guilty Plea to Misdemeanor Did Not Preclude Felony §531.8 Double Jeopardy and Civil Penalties, Forfeitures and License Suspensions §531.9 Emerging Civil Forfeiture and Double Jeopardy Issues §531.9.1 Consider Habeas Corpus Petitions §531.9.2 Remaining and Emerging Issues §531.9.3 When Jeopardy Attaches §531.9.4 Civil Forfeiture of Drunk Driver’s Vehicle Not “Punishment” for Purposes of Double Jeopardy §531.10 Refusing a Breath Test and Driving Under the Influence of Alcohol Are Distinct and Separate Offenses; Double Jeopardy Does Not Apply §531.11 No Double Jeopardy Violation in Prosecution for Driving While Intoxicated on Military Base Following Disciplinary Measures §531.12 Impeding Right to Independent Test: The Defense Remedy §532 Collateral Estoppel §532.1 Collateral Estoppel Distinguished From Double Jeopardy §532.2 Use of Collateral Estoppel in Drunk Driving Cases §532.2.1 Administrative Hearings §532.2.2 Collateral Estoppel Did Not Bar State From Litigating a Motion to Suppress Hearing on a Probable Cause Issue Where Issue Had Been Decided Adversely at a Prior Administrative Suspension Hearing §532.2.3 Collateral Estoppel Does Not Bar Re-Litigation of Probable Cause Issues Previously Determined at Administrative Court §532.3 Other Applications §532.4 Collateral Estoppel and Prior Judicial Proceedings §532.5 Collateral Estoppel Does Not Apply to Subsequent Administrative Hearings §532.6 Factors to Consider in Determining Whether Collateral Estoppel May Apply §532.7 “Acquittal” on Per Se Drunk Driving Charge May Require License Reinstatement §532.8 Judicial Estoppel §532.9 Driving Under the Influence Charge Not Precluded by Double Jeopardy, Res Judicata or Collateral Estoppel §532.10 Lack of Suspicion for Stop Finding Made by Administrative Law Judge Does Not Bar Prosecution for DWI Under Collateral Estoppel §532.11 Criminal Court’s Ruling on Invalid Arrest Had No Collateral Estoppel Effect In Driver’s License Revocation Proceeding §532.12 State Is Collaterally Estopped From Re-Litigating Refusal Issue §532.13 Collateral Estoppel Bars Admission of Breath Test Results in Administrative Suspension Hearing §533 Speedy Trial §533.1 What Is an Unreasonable Period of Time? §533.2 Dismissal Because of State’s Failure to Be Timely §533.3 Delay Between Arrest and Filing of Complaint Does Not Warrant Dismissal §533.4 Delay of 696 Days Violated Defendant’s Statutory Right to Speedy Trial §534 Denial of Access to Counsel §534.1 The Right to Counsel Before Chemical Test §534.1.1 Remedy §534.2 The Right to Privacy §534.2.1 Court Holds Farrell Standards Met §534.2.2 Suspect Granted the Right to Counsel Cannot be Denied the Right to Meaningful Access §534.2.3 Holland as Persuasive Reasoning for Right to Counsel Before Submitting to Sobriety Tests §534.2.4 Audiotaping Arrestee’s Conversation With Attorney Violates Ohio Statute §534.2.5 Videotaping and Right to Counsel §534.3 Knowing Waiver of Rights §534.4 Right to Consult With Parents §534.5 Interference With Right to Independent Testing §534.5.1 Due Process Does Not Require the Police to Advise Drunk Driving Suspect of Right to Obtain Independent Blood Test Before Submitting to a Preliminary Breath Test (PBT) §534.5.2 Trial Court Erred in Admitting Breath Test Where Defendant Denied Opportunity for Independent Test §534.5.3 Drunk Driving Arrestee Who Refuses to Submit to State’s BAC Test Has No Right to Independent Test §534.6 Due Process Analysis Requires Use of Telephone to Gather Evidence §534.6.1 Drunk Driving Arrestee Has Right to Independent Test Even if He Refuses to Submit to a Chemical Test §534.7 Due Process Violation Occurs When BAC Results Are Offered in Evidence Where Officer Affirmatively Mislead Driver §534.8 Due Process Not Implicated by Government’s Refusal to Allow Independent Test §534.9 Defendant Did Not Have Enforceable Cooperation Agreement With Prosecutor §534.10 Statute Does Not Provide Absolute Right to Counsel §535 Miranda Problems §535.1 When Should Miranda Warnings Be Given? §535.2 When Defendant Rates His Own Intoxication §535.3 Right to Counsel Does Not Depend on Custody §535.4 Some States Apply Broader Standard §535.5 Miranda and Medical Treatment §535.6 Unwarned Questioning May Be Allowed at Accident Scene §535.7 Lack of Miranda Rights Leads to Suppression of Evidence §535.8 Congress May Not Overrule Miranda §535.9 No Presumption of Waiver of Miranda Rights §535.10 Privilege Against Self-Incrimination Not Violated By Admitting Refusal to Submit to Breath Test §535.11 Court Allows Officer to Testify as Lay Witness Regarding Observations He Made of Defendant’s Performance on SFST §536 Probable Cause §536.1 The Anonymous Tip §536.1.1 Minimal Corroboration Required Based on Danger to Public §536.2 Necessity of Specific and Articulable Suspicion §536.2.1 Driver’s Nervous Appearance Did Not Support Reasonable Suspicion of Involvement in Criminal Activity §536.2.2 Anonymous Tip of “Possible Altercation” Did Not Support Stop of Vehicle §536.3 Investigatory Stop Made for Unrelated Purpose §536.3.1 The Doctrine of Pretextual Traffic Stops §536.3.2 Search of Vehicles Under the “Automobile Exception” Requires Exigent Circumstances as Well as Probable Cause §536.3.3 Officer’s Activation of Emergency Lights Amounted to a De Facto Detention Under the Fourth Amendment §536.4 Intoxication Manifested Through Driving Conduct §536.4.1 Can Accidents Supply Probable Cause to Test Motorists for Alcohol and Drugs? §536.4.2 Illinois Approves Mandatory Chemical Testing for Drivers Involved in Serious Accidents §536.4.3 State Can Prosecute Defendant for Driving Under the Influence of Alcohol Even if BAC Result Is Less Than Legal Limit §536.5 Two-Pronged Test for Informant’s Tip §536.5.1 Court Upholds Defendant’s Motion to Suppress §536.5.2 Court Holds That Evidence Did Not Corroborate Tip §536.5.2.1 Police Officer Must Corroborate Anonymous Tip for Vehicle Stop to be Valid §536.5.3 California Case Upholds Conviction Based on Anonymous Tip §536.5.4 Preparing a Defense §536.5.5 Trying the Anonymous Informant Case §536.5.6 “General” Tip Warrants Motion to Suppress §536.5.7 Police Officer’s Receipt of a Tip From a Citizen Who Had Provided Information in the Past, Provided Reasonable Suspicion to Stop Vehicle Under Fourth Amendment §536.5.8 Why Do Courts Come to Different Conclusions on Probable Cause and Anonymous Informants? §536.5.9 The Defense Strategy in Anonymous Informant Cases §536.5.10 Citizen Informant’s Tips Subjected to Three Part Test §536.6 Odor Alone Does Not Establish Probable Cause §536.6.1 Odor of Alcohol and False Statement to Police Did Not Create Reasonable Suspicion to Justify Traffic Stop §536.7 Probable Cause and Roadside Sobriety Tests §536.7.1 Is the Field Sobriety Test a Statement for Purposes of Miranda? §536.7.2 Field Sobriety Tests Elicit Tangible Evidence §536.7.3 Multi-Task Field Sobriety Tests Are Not Testimonial Under the Oregon Constitutional Counterpart to the Fifth Amendment Privilege Against Compelled Self-Incrimination §536.7.3.1 Field Sobriety Tests Require Particularized Suspicion §536.7.4 Preliminary Breath Tests Can Aid the Defendant §536.7.4.1 Admission of Preliminary Breath Test Results in Prosecution Case in Chief §536.7.4.2 Preliminary Breath Test Device Need Not Comply With Evidential Breath Test Standard §536.7.4.3 Daubert Challenges to PBT Evidence §536.7.4.4 Evidence of PBT Results From Defendant’s Passengers Excluded §536.7.4.5 The Evidence of a Defendant’s Refusal to Take or Refuse to Take a PBT Is Inadmissible, but Counsel’s Failure to Object to the Refusal Did Not Establish Ineffective Assistance Claim §536.7.4.6 Mandatory PBTs for Minors Ruled Unconstitutional §536.7.4.7 Improperly Administered PBT Not Admissible to Aid in Probable Cause Determination §536.7.5 Mere Involvement in an Accident Does Not Establish Probable Cause §536.7.5.1 Officer Could Request Motorist to Produce Documents After Basis for His Stop Ended §536.7.5.2 State Law Authorizing Blood Testing of Drivers Involved in Automobile Accidents Violates Fourth Amendment §536.7.6 Accident and Consumption of Alcohol Insufficient to Establish Probable Cause §536.7.7 Demonstrating How Circumstantial Evidence of Alcohol Impairment Can Be Irrelevant and Prejudicial §536.7.8 Court Rules That Citizens Stopped for Traffic Offenses Need Not Be Informed That They Are Free to Go After Valid Detention §536.7.9 Police May Order Driver and Passengers Out of the Car §536.7.10 Officer Lacked Objective Grounds to Conclude Defendant Was Under Influence of Alcohol §536.7.11 DUI Tags and Discretionary Stops §536.8 Challenging the Horizontal Gaze Nystagmus Test §536.8.1 A Proper Foundation Paves the Wa |
