TAKING CARE OF BUSINESS

TACDL’S ANNUAL DUI SEMINAROCTOBER 21-22, 2010

CASE LAW UPDATE OF DUI AND

RELATED MOTOR VEHICLE OFFENSE

TENNESSEE SUPREME COURT DECISIONS OCTOBER 1, 2009 - PRESENT

THE GOOD, BAD AND UGLY RESULTS

State v. Nash294 S.W.3d 541 (Tenn.2009)

THE UGLYIt is not improper for judicial commissioners to be a fact witness at trial on a case where he/she determined probable cause for issuance of the arrest warrantUnsolicited references in trial testimony to Defendant’s prior crimes not grounds for mistrialA discharged jury cannot be reconvened to serve on any further proceedings where a jury is required

THE BAD

The improper discharge of a jury does not raise double jeopardy concerns for enhancement issues

THE GOOD

The appellate record was insufficient to reasonably expect a different result

TAKING CARE OF BUSINESS:Where judicial commissioner’s testimony relates to evidence resulting from his/her independent investigation continue to objectIn the absence of a mistrial, generally demand a curative instruction and always demand a jury-out hearing to determine how witness knew of prior crime, any discussion with D.A., and what prompted the witness to bring it up

State v. Brotherton

___ S.W.3d ___, 2010 WL 3733914 (09/27/2010)

THE UGLY

Police have reasonable suspicion to stop a vehicle with a broken taillight that emits a white light

THE BAD

The Court’s holding does not appear to differentiate between the tail lamp requirements under the statute and the stop light requirements

THE WORSTThe Court’s holding appears to open the door for the adoption of the “good faith” exception to an otherwise unlawful stop

THE GOODThe statutory requirements for tail lamps and stop light are different so Brotherton may be distinguishedTaillights are not required to be maintained in factory conditionsRed repair tape is not per se grounds for reasonable suspicion

TAKING CARE OF BUSINESSBe sure you know how your clients taillight is constructed and take picturesMemorize and carry with you at all times State v. Taylor, 1987 WL 25417(Tenn.Crim.App)

THE COURT OF CRIMINAL APPEALS

Are There Any Treats in That Damn Candy Bowl?

State v. Elizabeth Gay Tindell

2010 WL 2516875 (06/22/2010)

THE UGLY

No confrontation issue under Crawford and Melendez-Diaz for admissibility of BACSource code of breathalyzer not discoverable under Rule 16

Not in possession, custody, control of StateFailure to establish material to defense case

THE BAD

Supreme Court unlikely to reverse if appeal accepted

THE GOOD

Door not shut on production of source code:

“Satisfaction of Rule 16 is still a question for trial courts to decide…”Case –by-Case analysis requiredRule 17 subpoena a possible option

TAKING CARE OF BUSINESSDevelop methods for showing materiality

Read State of New Jersey v. Jane Chun, 943 A.2d 114Read State of Minnesota v. Dale Underdahl, 767 N.W.2d 677

Obtain RFP issued by State and contract entered with manufacturer of EC-IR IIObtain all other TBI documents, manuals, etc. relating to EC-IR II, including daily calibration logs

NOT TAKING CARE

OF BUSINESS

OFFER OF PROOF

State v. TindellRecord devoid of any evidence or offer of proof to support Defendant’s claim that production of source code material

State v. Soller, 2010 WL 2301743 (06/09/2010) Perm to Appeal filed 08/23/2010

Defendant convicted of several felony motor vehicle related offenses arising from personal injury accidentNotice of defense expert week before trialTrial Court gave option of exclusion or continuanceDefendant in jail, proceeded to trial

ISSUE: Error to exclude expert because had to choose between right to speedy trial and right to mount defense

HELD:Narrative summary of offer of proof insufficient to allow meaningful review of what expert’s opinion wasBetter practice is question and answer format, particularly where evidence technical

CERTIFIED QUESTION OF LAWState v. Wilson, 2010 WL 457499 (02/10/2010) perm to app 07/09/2010

Blood sample taken more than two (2) hours after arrest admitted by trial courtJudgment does not contain or reference certified question of law although an Agreed Order was entered simultaneously that met requirementsAppeal Dismissed

State v. Shelton, 2010 WL 9974 (01/04/2010)

Appeal dismissed for failure to comply with Rule 37Issue lost was the constitutionality of the stop but facts not included in opinion

FIELD SOBRIETY TESTSState v. Stratton, 2009 WL 5125099 (12/22/2009)

No motion in limine to the administration of the finger-to-nose test

State v. Byington, 2010 WL 2812664 (07/19/2010)

No motion in limine to ABC’s, finger count

State v. Wright, 2009 WL 4282029No motion in limine to finger-to-nose, ABC’s, finger count

State v. Rogers, 2010 WL 454999 (02/10/2010)

No motion in limine to ABC’s, finger count, finger-to-nose (no other test administered)

MISCELLANEOUS State v. West, 2010 WL 2787827 (07/13/2010)

FBI agent qualified as toxicology expert without objection to scope of expertise, allowed to testify to effects of various drugs on central nervous system based on what she had read in unspecified reference materials

THERE ARE TREATS IN THE CANDY BOWL

State v. Meador, 2009 WL 4738755 (11/11/2009)After successfully having a .17 BAC suppressed pretrial, the State introduced at trial, without objection, an “Alcohol Influence Report” the officers prepare in DUI cases which contained the BACCounsel realized it in deliberations and requested a mistrialOn appeal, admissibility of documents upheld, but case reversed under plain error rule and court’s failure to declare a mistrial

State v. Geselbracht, 310 S.W.3d 402 (Tenn.Crim.App. 2009)

Affirmed the trial court’s dismissal of indictment because law enforcement “frustrated” defendant’s reasonable efforts to obtain an independent blood test by ignoring his request for one