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, http://www.isc.idaho.gov/opinions/Schroeder%20v%20Dept%20of%20Transp.pdf

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.

Two New SCOTUS Cases Today

The Court held in Dean v. United States (http://www.supremecourtus.gov/opinions/08pdf/08-5274.pdf) 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 (http://www.supremecourtus.gov/opinions/08pdf/07-1356.pdf) 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.

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, http://www.isc.idaho.gov/opinions/ochieng%20opinion.pdf

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, http://www.supremecourtus.gov/opinions/08pdf/07-1114.pdf

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?

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!

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:
http://www.isc.idaho.gov/opinions/NEVAREZ%20JIMENEZ.pdf

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.