Thursday, April 30, 2009

Belch Requires Restarting of 15 Minute Waiting Period

Today the COA reversed an ALS license suspension where the officer did not restart the 15 minute waiting period after the driver belched. "[W]e conclude that the hearing officer erred in holding that the 15-minute monitoring period need not be restarted when there is a belch that is not accompanied by regurgitation, for that holding is inconsistent with the Intoxilyzer 5000 Manual."

The COA also distinguishes this case from State v. Charan, which is always a good thing for the driver.

Nice job and congratulations to Matt Roker!

In The Matter Of The Driving Privileges of: Gordon C. Schroeder,

Canyon County & State of Idaho Sued Over Public Defender Services

The Canyon County Public Defenders have sued the State and Canyon County. Wiebe and Fouser, P.A. currently holds the public defender contract, but recently the county invoked a 90-day termination provision and then sought bids. The complaint alleges that the County Board of Commissioners stated that it "wanted to find the bottom" on costs for public defender services. The complaint also notes that the Canyon County Prosecutor's budget is more than double the public defender contract.

The complaint seeks a declaratory judgment that I.C. 19-860(1) is unconstitutionally vague. (That statute direct counties to pay public defenders "not less than" county prosecutors "[s]o far as possible.") There is a request for injunctive relief preventing the County from terminating the contract as the 90-day termination clause violates the Idaho law which requires the term of the public defender be at least two years.

Painting with a broader brush, the complaint alleges two Sixth Amendment right to counsel claims. One against the County for failing to provide needed resources and because the County's Request for Bids does not require that the bidders meet minimum constitutional standards. The second alleges that the State has wrongfully delegated its duty to provide effective counsel to the counties. Last, there is an equal protection claim because the lack of adequate public defender services will have a disparate impact on minority persons as 20% of Idaho's racial minorities live in Canyon County.

Good luck to them. As previously mentioned, it's my hope that no one else even bids on this contract and Scott and Klaus will be able to squeeze more money out of the Commissioners. That'll teach'em for playing lowball. It's ridiculous for the prosecutors to have more than twice as much money as the PD's. The PD contract includes misdemeanor cases brought by three cities within Canyon County prosecuted by city attorneys and child protection cases brought by the AGs. So it's 13 PDs against 28 prosecutors.

Further, anyone who thinks they have the legal horsepower or the infrastructure to take over this contract is kidding themselves. Klaus, Scott and their office have more legal talent and experience than the rest of the Canyon County criminal defense bar combined. And more than the prosecutor's office too. One of the more horrifying aspects of this situation is the persistent rumor that a recent Canyon County prosecutor now in private practice intends to bid the contract. (Those who have practiced in Canyon Co. know who I'm talkin' 'bout!)

Thanks to Scott and Klaus for standing tall.

Wednesday, April 29, 2009

Two New SCOTUS Cases Today

The Court held in Dean v. United States ( that the 10 year mandatory minimum sentence for discharging a firearm during the commission of a crime under 18 USC 924(c)(1)(A)(iii) applies even if the discharge is accidental.

The Court held in Kansas v. Ventris ( that a defendant's admissions to a jailhouse informant obtained in violation of the Sixth Amendment are admissible to impeach defendant's testimony at trial.

Tuesday, April 28, 2009

Trial Court Can Sua Sponte Raise Affirmative Defense

The Court of Appeals has held that a district court may sua sponte raise the affirmative defense of statute of limitations during post-conviction summary dismissal proceedings.

Oschieng v. State,

Why Don't Prosecutors Get Brady?

The United States Supreme Court per Justice Stevens has found that a Tennessee prosecutor withheld exculpatory evidence in a case where the defendant has now been on death row for 27 years.

Bell v. Cone,

The defense argued at sentencing that the death penalty was not appropriate because of the defendant's long history of drug abuse, which may have started during his otherwise honorable military service in Vietnam, diminished his capacity to appreciate the wrongfulness of his conduct. The prosecutor argued that the defendant was a drug seller, not a drug user, and that his claim of diminished capacity was "baloney."

The prosecutor, however, had suppressed evidence that witnesses, who had seen the defendant before and after the murders, had described the defendant as "wild eyed" and as acting "real weird" as if he were "drunk or high." There was also a police report describing the defendant's demeanor at the time of arrest as "frenzied" and "agitated." And, in direct contradiction to the prosecutor's argument to the jury, there were multiple police bulletins describing the defendant as a drug user.

The opinion is mainly about whether the defendant was barred on procedural grounds from even raising the claim in federal court. The Court finds he is not barred and remands to the lower courts. That part is of interest to federal habeas nerds. What I found most compelling is that the prosecutor told the jury that the defendant was lying about his drug addiction when the prosecutor knew different. This happens, I am sure, much, much more than we know. Why don't prosecutors see that's wrong? Why don't they see that's against the law? I mean, Brady was decided in 1963! They've had time to read it carefully by now. What am I missing here?

Monday, April 27, 2009

Governor Steamrollers SAPD to Get Road Repair Funds?

Last Wednesday, the Governor vetoed the appropriations bill for the State Appellate Public Defender. Then on Thursday he signed the appropriations bill for the Attorney General. Not surprisingly, he also signed the appropriations bills for his office.

What's going on, Mr. Governor? The SAPD budget is nothing next to the AGs. (The AGs get nine times more, actually.) If you want to put some pressure on those "read-my-lips-no-new-taxes-let-the-roads-go-to-hell" Republicans (weren't you one of those a long time ago?), you gotta hit'em where it hurts.

UPDATE: KTVB television is reporting that the Governor is backing off his request for a gas tax increase. Behold the power of SCOIDBlog!

Friday, April 24, 2009

Safe Driving Now Part of Reasonable Suspicion for Stop?

In State v. Nevarez and Jimenez, a police officer hears that a convenience store has been robbed by two Hispanic individuals. On the way to the store, he sees a car going 42 in a 55 mph zone. He thinks the car is about as far away from the store as would be expected given the time of the robbery. He also notes there are four males who appeared to be Hispanic in the car. The occupants of the car all look at him with "varying expressions" on their faces.

The officer then turns around to follow the vehicle. He sees movement inside the car. "As the vehicle approaches a place where the highway separates from two lanes into four lanes, the driver signals to move over into the right lane. This signalling began about 200 feet before the highway split." The officer says that both the early signalling and the signaling itself, although perfectly legal, are not usually done by drivers. The Court goes on to note that when the officer catches up with car the occupants were "jumping around or moving around [in] the car really fast." The officer actives his overhead lights and stops the vehicle.

The COA says this is sufficient to establish reasonable suspicion for the stop and affirms the denial of the motion to suppress. The opinion is here:

I like the part about how the occupants had "varying expressions." What if they all had the same expression? Is that more or less suspicious? What if two had one expression and the other two had a different one? It boggles the mind to consider all the possibilities.

Also, don't you think it's unfair that safe driving is now part of the reasonable suspicion calculus? So if you speed the cops can pull you over, but if you don't speed it's suspicious. If you don't signal when changing lanes the cops can pull you over. But if you do signal, it's suspicious. The cops call obeying all the traffic rules "driving all polite." I call it a "Route 22." Or to drag out another 60's reference: "Laugh about it, shout about it, when you've got to choose. Every way you look at it you lose."

Coo, coo, ca-choo Mrs. Robinson and have a nice weekend.

Wednesday, April 22, 2009

Argument Preview: Expungement Case

On May 13, 2009, the Idaho Supreme Court will hear a case presenting the question of whether there is an expungement procedure for criminal records after an acquittal.

In State v. Gary Turpin, No. 34994, Mr. Turpen was charged with sexual exploitation by a medical care provider, but was found not guilty by a jury. After the verdict, Mr. Turpen filed a motion requesting expungement of his case from the criminal records. The magistrate court denied Turpen’s motion concluding there is no statutory basis for expungement. The District Court on intermediate appeal affirmed the magistrate.

Former Attorney General and Lincoln scholar Dave Leroy (pictured above) is the attorney for the appellant. Presumably, this case will address the applicability and scope of I.C. 67-3004(10).

Tuesday, April 21, 2009

Judge McDermott Tapes Mentally Ill Defendant's Month Shut?

The Associated Press is reporting that Judge Peter McDermott ordered court officials to cover an "unruly defendant's" mouth with duct tape during a probation violation hearing.

"During the hearing, [the defendant] made repeated outbursts and ignored the judge's orders to refrain from interrupting the court. The judge then ordered bailiffs to silence [the defendant]. The Idaho State Journal reports that bailiffs found a roll of duct tape, tore off a piece and put it over his mouth."

The judge then ordered the defendant be placed in the custody of the Department of Correction mental health facility.

If the guy's mentally ill, is it still a good idea to duct tape his mouth shut? (Rumor has it that the defendant had been previously committed to State Hospital South and his PD was trying to get the judge to order an evaluation when the "outburst" occurred.) Does this have anything to do with the Judge's recently announced retirement? Maybe he's been wanting to do this for 20 years and saw this as his last chance. Now, I've occasionally wanted to tape my client's mouth shut too, but for different reasons and I've never actually done it! Does the Idaho Judicial Council read the Idaho State Journal?

John Paul Stevens Throws Curveball Past Snooping Police

The Supreme Court has cut back the Belton car search incident to arrest doctrine. Arizona v. Gant.

Rodney Gant was arrested for driving on a suspended license. After he was handcuffed and placed in the back of a patrol car, the police searched the passenger compartment of the car. Cocaine was found in a coat pocket insdie the car.

Justice Stevens, joined by Scalia, Souter, Thomas and Ginsburg, held that a search of a car was not permissible under Belton because the driver was not able to get into the car.

"[W]e hold that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. . . . we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

Here's the opinion:

This is a big victory for the Constitution. Let's enjoy it while we can. Time will tell how the police react to the new rule. Will they keep the driver inside the car and try to justify searching that way? Will they begin to impound vehicles and do inventory searches? Will they threaten impoundment as a way to obtain "consent" to search? Will they even follow the law? Stay tuned.

Remember: This case applies to all cases not yet final. So any car searches which were good under the broad reading of Belton which held sway until this morning are now illegal searches.

Important SCOTUS Released Today

This morning, the U.S. Supreme Court released its opinion in Arizona v. Gant. Briefly, the Court (5-4) held "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

You can access the full opinion here:

Happy reading!!!

Monday, April 20, 2009

Two New SCOID Opinions today

In the first, State v. Christopher Sanchez, the Court affirms an order revoking probation and reinstating the original sentence. The Court of Appeals had reversed the district court. The Court applies a deferential standard of review and finds there was sufficient evidence of a willful violation of probation and no abuse of discretion in imposing the underlying sentence.

The second opinion, State v. David Purdum, can be found here:

In Purdum, the defendant's conditions of probation included that he agreed "to the search of his person, automobile, real property, and any other property at any time and at any place by any law enforcement officer . . . and . . . [to] waive his constitutional right to be free from such searches."

One afternoon, a police officer saw Purdum out driving and decided to stop him for a drug test. The officer did not have even reasonable suspicion that Purdum was violating his probation or the law. Purdum parked in his father's driveway, saw the cruiser pulling in behind him, and ran to a shed. The officer followed him. After catching up, the officer patted Purdum down for weapons and Purdum "bolted" for the house. The officer then arrests Purdum and finds three lighters in his pocket. The search of the car interior uncovered some suspicious druggie stuff and the search of the car's air filter compartment reveals drugs and paraphernalia. (Ed. Note: The air filter compartment is that big shiny thing above. No one would think to look there!)

Purdum argued that he was unlawfully stopped without reasonable suspicion and the evidence found during the car search was tainted by the illegal seizure. The Court says that "[w]hile the United States Supreme Court has not yet addressed whether a probationer may waive his Fourth Amendment rights through acceptance of probationary search conditions, this Court has determined that a probationer's consent to searches constitutes a waiver of Fourth Amendment rights."

What's more, there is implied consent "to a limited seizure of his person necessary to effectuate such searches."
So, no reasonable suspicion needed to search and there is an implied consent to be seized while you and your car is being searched. Cert worthy issue? More on these cases later.

Drug Court May Grant Restricted Driving Privileges

The Governor has signed a bill amending I.C. Section 18-8002 to permit drug court participants to obtain restricted driving privileges.

Senate Bill 1153 provides that when a person is enrolled in and is a participant in good standing in drug court "he shall be eligible for restricted noncommercial driving privileges for the purpose of getting to and from work, school or an alcohol treatment program, which may be granted by the presiding judge of the drug court." Three additional requirements must be met:
  1. The participant must serve a period of absolute suspension of driving privileges of at least forty five (45) days;
  2. An ignition interlock device must be installed on each of the motor vehicles owned or operated, or both, by the participant; and
  3. There must be proof of financial responsibility.

Read the full Bill at:

There is no emergency clause, so the bill will go into effect on July 1.

This is good news for our clients in drug court, especially those who live in rural areas. In fact, this may be the only good news coming out of the Legislature this year. Nevertheless, SCOIDBlog will do a review of the session over the next few weeks.

Thursday, April 16, 2009

April is Poetry Month: State's Attorney Fallas by Edgar Lee Masters

I, the scourge-wielder, balance-wrecker,
Smiter with whips and swords;
I, hater of the breakers of the law;
I, legalist, inexorable and bitter,
Driving the jury to hang the madman, Barry Holden,
Was made as one dead by light too bright for eyes,
And woke to face a Truth with bloody brow:
Steel forceps fumbled by a doctor's hand
Against my boy's head as he entered life
Made him an idiot.
I turned to books of science
To care for him.
That's how the world of those whose minds are sick
Became my work in life, and all my world.
Poor ruined boy! You were, at last, the potter
And I and all my deeds of charity
The vessels of your hand.

Wednesday, April 15, 2009

Justice Denied

The Constitution Project has released a report which details the endemic and systemic failures of the indigent defense system and recommends twenty-two specific reforms to address the problems.

"[D]espite the fact that funding for indigent defense has increased since the 1963 Gideon decision, there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in light of the current economic difficulties that confront the nation. . . . insufficient funding has resulted in unacceptable levels of training, salaries, supervision, and staffing of public defender programs. . . . In addition, private lawyers assigned to cases for fees receive compensation that is not even enough to cover their overhead and that discourages their participation. . . ."

For a copy of the report:

Coincidentally, I noticed a prime example of the extreme indifference our counties pay to adequate public defender services just yesterday. It seems that Canyon County gave notice of its intent to terminate its PD contract with Wiebe and Fouser and seek bids. The county, no doubt, wants someone to underbid Wiebe so it can save a few dollars by screwing poor people. Not that I am discouraging any interested individuals from applying (that would be a restraint of traitors or nauseous interference of lowballing or something like that), but wouldn't it be nice if no one does and then Wiebe makes the county come back with more money?

Monday, April 13, 2009

Post-Conviction Claims May Not be Dismissed Without Notice to Petitioner

The Court of Appeals, per Judge Perry, reversed in part the dismissal of a post-conviction petition due to lack of notice of the district court's intent to dismiss.

Before doing so, it applies the Supreme Court's DeRushe' rule that the adequacy of the state's motion to dismiss may not be challenged for the first time on appeal. (DeRushe' came out after oral argument in this case). The Court then reads DeRushe' to not bar a challenge to "claims which were dismissed without any notice and claims that were dismissed by the district court on a ground other than those relied on in the state's memorandum." The Court then reviews the claims and finds that several had been dismissed without any notice. It then remands to the trial court for further proceedings on those issues.
Judge Lansing concurred with the above but wrote separately "to make some suggestions to the trial court and to Kelly's counsel that could avoid the need for similar appeals in the future." First, Judge Lansing praised the district court for its detailed order dismissing the case but notes "most of the present appellate challenge . . . could have been prevented if the district court had presented this detailed opinion as a notice of intent to dismiss . . . before it entered its dismissal order."

The Judge then sends a message to us:
"I would also like to point out to Kelly's counsel -- and to all attorneys who represent post-conviction petitioners -- that when a post-conviction action has been dismissed without adequate notice, rather than taking an immediate appeal it would ordinarily be much more expedient for the petitioner to file a motion . . . for relief from the judgment under Idaho Rule 59(e). Bringing the error to the district court's attention in this manner would give the court an opportunity to take prompt corrective action and could eliminate the need for, and the delay attending, an appeal."

That's a good tip for post-conviction practitioners. Justice delayed is less justice. For example, Mr. Kelly is already at a work release center and may be on parole by the time the case gets resolved in the district court. It would have been better for the district court to have sorted out the notice mess right away. (I assume the reference to "Kelly's counsel" means the attorney who will be appointed on remand, as Mr. Kelly was pro se in the district court and appellate counsel was not appointed until after the 14 days one has to file a Rule 59(e) motion. That quibble aside,) Judge Lansing makes a good point.

Friday, April 10, 2009

COA Affirms Fixed Life Sentence for Mentally Ill, But Undiagnosed, 16 Year Old.

It has been a tough week for kids in the Idaho Courts. A day after the Supreme Court affirmed the waiver of a 12 year old with an IQ of 75 into adult court, State v. Doe (see blog below), the Court of Appeals affirms a fixed life sentence for a 16 year old in a second degree murder case.

State v. Windom,%20Ethan.pdf

Ethan Windom beat his mother to death during a psychotic episode. Both the state's expert and the defense expert agreed that Ethan had been misdiagnosed as suffering from anxiety and depression, "but rather was a paranoid schizophrenic who had suffered a psychotic break shortly before killing his mother. Both doctors agreed that if he had been properly diagnosed and treated, Windom would be a good candidate for rehabilitation and probation."

The Court of Appeal nevertheless upheld the sentence stating "that the nature of the offense, standing alone, may be so severe and egregious so as to support the imposition of a determinate life sentence. Accordingly, we are constrained to affirm the imposition of a determinate life sentence."

The COA's unfortunate conclusion is based upon dicta in State v. Cope, 142 Idaho 492, 129 P.3d 1241 (2006). That case, however, is not apposite because there was substantial evidence in Cope to show a lack of rehabilitative potential. Cope was 43, had a long criminal history and his own expert testified that Cope, even if he were to be fully compliance with his medication regimen, would still be a threat to others. Here even the state's expert (Dr. Estess! - need I say more?) agreed Ethan had rehabilitative potential.

Wednesday, April 8, 2009

Waiver of Juvenile Must be Considered in Light of Statutory Waiver Criteria

In State v. Doe, the Supreme Court affirms the waiver of an immature 12-year-old with an IQ of 75 into adult court in a case where both the defense expert and juvenile probation department recommend against waiver.

The Supreme Court noted that "Doe argues that the magistrate's waiver decision was an abuse of discretion under the [State v.] Gibbs[, 94 Idaho 908, 500 P.2d 209 (1972)] criteria." It goes on to say that since "Gibbs was decided before the Legislature amended the waiver statute to include the six factors courts must now consider in making waiver decisions." "[S]uch decisions are now governed by the section 20-508(8) factors."

Next the Court, while acknowledging the force of some of Doe's policy arguments against waiver, dismisses them as not relevant because they were outside the statutory criteria.

The Court then concluded that the magistrate court did not abuse its discretion because it considered all of the proper factors and based its findings on sufficient evidence.

Tuesday, April 7, 2009

Fundamental Error a No Go in Appeal from Dismissal of Post-Conviction

In Person v. State, filed today, the Court of Appeals declined the invitation to apply the doctrine of fundamental error to consider an issue which had not been raised below in an appeal from the summary dismissal of a petition for post-conviction relief.

Back in 2002, Person entered a conditional guilty plea to second degree murder. On appeal, the Court of Appeals found that portions of statements he made during police interrogation should have been suppressed. On remand, he entered a binding guilty plea wherein it was stipulated that the PSI would be waived and that the state would recommend a 15-50 year sentence. No new PSI was prepared and the recommended sentence was imposed.

Unfortunately, about a month later, the District Court denied Person's motion to either have copies of the original PSI returned from DOC or redacted to exclude the suppressed statements. And, the denial was affirmed on appeal.

Person then filed a pro se petition for post-conviction relief arguing that he had received ineffective assistance of counsel in the entry of the second guilty plea, resulting in an invalid plea. Counsel was appointed and the petition was dismissed as time-barred.

On appeal, we argued that fundamental error occurred when a discovery exception was not sua sponte applied to find that the petition was not time-barred. The Court of Appeals said, "No thank you" to that.

The Court of Appeals stated that while the fundamental error doctrine does apply in the direct appeal of a criminal proceeding, it was not going to apply it to a decision of a trial court in a post-conviction relief action.

The take-away lesson is that in post-conviction, all possible arguments need to be raised first in the District Court. Fundamental error is not going to be a fail safe.

Read the opinion at:,%20Mark%20A..pdf

Monday, April 6, 2009

Wait Time Before Forcible Entry Pursuant to Search Warrant Must Be Reasonable in Light of Exigency

"Sittin' and starin' out of the hotel window.
Got a tip they're gonna kick the door in again.
I'd like to get some sleep before I travel,
but if you got a warrant, I guess you're gonna come in."

In State v. Kofoed, the Fruitland police walk up to the door of a workshop with a search warrant to search it and outbuildings for drugs and for evidence of meth manufacturing. The police knock, wait two seconds and then announce "Sheriff's Office, search warrant!" "They then heard a sound like something was dropped or kicked and then footsteps moving quickly away from the door. . . . The time lapse between the officer announcing his authority and purpose and his opening of the door was about four seconds."

The Supreme Court holds that the sounds created an exigency, i.e., the possible destruction of evidence and that the four seconds was a a reasonable amount of time to wait before entering. "Because the exigency justifies an entry to prevent the destruction of evidence, a reasonable wait time would be less than the time the officers reasonably suspected it would take to do so." And that's not the time needed to destroy all the evidence, or even some of it, because "[t]he police do not have to wait at the door in order to give the suspect time to destroy some of the evidence."

The result is not surprising given the recitation of facts. An interesting sidelight is that Kofoed didn't specifically argue that the method of entry violated the Idaho Constitution. In footnote two of the opinion the Supreme Court notes: "Kofoed did not argue below that either Article I, § 17, of the Idaho Constitution or Idaho Code § 19-4409 provide greater protection than the Fourth Amendment." This might have made a big difference to Kofoed because the Fourth Amendment exclusionary rule does not require suppression of evidence, Hudson v. Michigan, 547 U.S. 586 (2006), while it is required for violations of the Idaho Constitution and the knock and announce statute. State v. Ramos, 142 Idaho 628, 130 P.2d 1166 (Ct. App. 2005). Thus, had a violation been found, there would not have been a suppression remedy because the Idaho Constitution's exclusionary rule was not raised and argued. Of course, the Supreme Court is not bound by Ramos, but the issue has to be raised to preserve it for appeal before either the Supreme Court or COA.

Read the opinion at:

Thursday, April 2, 2009

Congratulations Greg!

Good guy and friend of the Blog, Greg Moeller has been named District Judge by Governor Otter. Greg represented Raul Grube, a man wrongly convicted of murder, for over 15 years. Most of that time Greg worked without pay. I had the privilege of working with Greg when we co-counseled the case during the federal habeas corpus proceedings. I got paid. Greg worked pro bono. Judge Winmill granted the writ due to a Brady violation by the state and Raul was released from prison. (The state withdrew its appeal after oral argument in the Ninth Circuit.)

Criminal defense was just a small part of Greg's varied general practice which included personal injury, commercial, real estate, corporate, estate planning and probate, utility, and water rights. He'll bring a wide range of knowledge to the Madison County Courthouse.

If being a good person and a good lawyer makes someone a good judge, Greg'll be one of the best.

In Third District News, Canyon County Magistrate Bradly S. Ford was named as the new District Court Judge. Congratulations to Judge Ford too.

There are three other judicial positions still open: another Third District DJ, a Sixth District DJ and a Court of Appeals Judge. In my opinion, only qualified SCOIDBlog readers need apply.

Generalized Statements Re: Compliance with SOPs are Insufficient to Rebut Specific Evidence of an Officer's Failure to Follow Breath Test SOPs

Today in Bennett v. Dep't of Trans., the Court of Appeals held "when specific, credible evidence demonstrates a violation of proper procedures, the [officer's probable cause] affidavit alone is insufficient to support a finding that proper procedures were followed." Docket No. 35150.

In Bennett, the Plaintiff testified that the officer left the room twice during the observation period. At the hearing, the Court of Appeals noted "the State presented only the officer's probable cause affidavit," containing "generalized statements regarding employment of proper procedures." Without finding that the Plaintiff's testimony lacked credibility, the hearing officer concluded she failed to meet her burden to demonstrate proper procedures and standards were employed by the officer.

In sum, the Court affirmed the District Court's order vacating the administrative license suspension by concluding the "hearing officer's finding that the breath test was conducted in compliance with procedureal standards is not supported by substantial evidence in the record as a whole." It will be interesting to see how this affects future ALS proceedings: Will arresting officer's actually pay attention and include detail, thought, and substance into their affidavits?; Will the hearing officers actually weigh evidence objectively?; Will the State begin participating to rebut testimony and evidence?...Just a few thoughts. Until then, I think this case provides a much needed glimmer of hope for those of us who have grown pessimistic with ALS proceedings.

On a parting note, the Court of Appeals did state that "coughing during the monitoring period does not implicate an invalid test or improper procedures." Thus, it looks like this argument is a dead end...

Wednesday, April 1, 2009

Prosecutor a "pillar of integrity in the legal community"


The Justice Department has moved to drop all charges against former Senator Ted Stevens due to prosecutorial misconduct.

The New York Times reports:

"Attorney General Holder, who made the decision to move to drop the charges, said in a statement, “I have concluded that certain information should have been provided to the defense for use at trial.” He said it was “in the interests of justice” to dismiss the indictment and forgo a new trial.

Mr. Stevens’s lawyers, Brendan V. Sullivan, Jr. and Robert M. Cary, welcomed the decision in a statement and praised Mr. Holder as “a pillar of integrity in the legal community.” The statement called the case “a sad story and a warning to everyone” that “any citizen can be convicted if prosecutors are hell-bent on ignoring the Constitution.”

Amen to that Brother Brendan! All you prosecutors out there should be proud of Eric Holder. All we defense attorneys can return to our cynical selves -- tomorrow.