Axelberg v. Commissioner of Public Safety

The Minnesota Supreme Court heard oral arguments in Axelberg v. Commissioner of Public Safety on December 12, 2013.  Factually, Jennifer Axelberg was a victim of domestic violence on the day in question in May of 2011 in Mora, Minnesota.  She was in a remote location and she fled to a vehicle to escape.  She locked the doors once she entered the vehicle.  Her husband began punching the windshield of the car and broke the windshield. At that point, Ms Axelberg put the key in the ignition and started the car.  She then drove to a camping resort and the police were called.   Mr. Axelberg was thereafter arrested for domestic battery and Ms. Axelberg was arrested for driving under the influence.  Her blood alcohol was .18 and her license to drive a motor vehicle was suspended and/or revoked.

The issue before the high court is, can the common law defense of necessity be used in a license revocation proceeding.   The oral arguments are online.  The court focused its questioning on whether the court has the right to utilize a common law criminal defense for a statutorily created civil penalty.  This is a very interesting case and the oral arguments are worth listening to.

Isanti County, MN Judge Recognized for Innovations in Handling DUI Cases

The Isanti County News reported on December 11, 2013 that Judge James Dehn was recognized by the Century Council with the Kevin E. Quinlan Award for Excellence in Traffic Safety.  Judge Dehn “pioneered the staggered sentencing approach for repeat drunken driving offenders, which is now utilized in more than 30 states and was studied by the National Highway Traffic Safety Administration.” He also created a ‘DUI Last Place of Drink’ tracking program and helped create a “Safe Cab” program.  Judge Dehn said, “I am very honored to receive this award, but I share it with all the incredibly committed people who make the Safe Cab program and Staggered Sentencing program work to make our roads in Minnesota safer.”

Revisions to North Dakota’s New Tougher DUI Law have been Suggested

The Grand Forks Herald reported on December 11, 2013 that the Legislature’s interim Judicial Committee was asked to consider some revisions to North Dakota’s new tougher DUI Law.  The new law requires all first time DUI offenders to participate in a 24/7 sobriety program.  However, State Court Administrator Sally Holewa asked the Committee to leave participation in the 24/7 sobriety program at the discretion of the court for juvenile offenders.  The reason for this modification is that participation in the program interferes with school attendance. 

The new law also increases the look-back time for prior DUI cases from five to seven years.  Fourth offenses which are a felony have unlimited look-backs.  However, current law allows court clerks to dispose of misdemeanor case files after seven years.  This means that prosecuting fourth offense DUIs may be “almost impossible” in some cases as the conviction orders for the priors may not be available.  The article also notes that there is a lack of clarity on how to appropriately handle license suspensions for a select class of cases.  North Dakota’s Attorney General Wayne Stenehjem urged the Committee to give the new law more time before deciding to tweak it.

Proactive Legislation to Ban Google Glass Usage While Driving

The Herald Review reported on December 8, 2013 that Illinois State Senator Ira Silverstein filed a bill to ban people from using Google Glass while operating motor vehicles in Illinois.  Goggle Glass has a small video display built into a pair of glasses.  Users can do many of the things they could do on a smart phone, for example surf the internet or watch videos.  Google glass is not available yet to the general public but is expected to be available in the near future.  Senator Silberstein hopes that if his bill passes it will be another tool to help prevent distracted driving.  There are similar bills in Delaware and West Virginia.  Although the company Google warns users that use of the product while driving may be illegal in some states and to be careful when using the product, they built an app which translates road signs into different languages.

People v. Terry Vangelder

The Supreme Court of California issued an opinion in People v. Terry Vangelder on November 21, 2013.  Mr. Vangelder was stopped by police for speeding and a driving under the influence investigation was subsequently initiated.  The defendant was given two breath tests on an intoximeter, which both indicated a .08 percent alcohol concentration.  He consented to a blood test and which was tested twice with a .087 and a .088 percent alcohol concentration.  He was charged with “driving under the influence of alcohol” and “driving with a blood alcohol concentration of .08 percent or more.”  The latter offense is commonly called a “per se charge.”

At trial, the defendant attempted to introduce the testimony of Dr. Hlastala, who was recognized as an expert on human physiology and the way alcohol moves thru the body, as well as how it is expelled by various organs.  The substance of Dr. Hlastala proposed testimony was that even if a intoximeter is properly calibrated and in good working order, the results are not reliable due to variances in the way people expel alcohol thru the breath.*** The trial court permitted Dr. Hlastala to testify on other matters but prohibited questioning that would lead to him to testify that a properly calibrated breath testing device may provide inaccurate results.  The jury convicted the defendant “driving with a blood alcohol concentration of .08 percent or more” and was unable to reach a verdict on the “driving under the influence of alcohol” charge.

The Court of Appeals found that it was prejudicial error for the trial judge not to allow the proposed testimony by Dr. Hlastala and reversed the conviction.  The Supreme Court of California disagreed and reinstated the conviction.  They stated,

In light of these conclusions and the corresponding regulations and statutes discussed earlier, the fundamental reliability of federally approved, properly calibrated and employed breath-testing machines used in the application and enforcement of the per se statute is a matter that has been determined as policy by the Legislature — and a defendant’s expert witness may not invite a jury to nullify that determination in the manner at issue here.  Accordingly, the judgment of the Court of Appeal is reversed.

The opinion is 55 pages but it is worth reading.

***Dr. Hlastala’s proposed testimony would have gone beyond partitio ration variability, which the Court had previously ruled was not a permissible line of defense.  Partition ratio variability in this context is an argument that the formula for converting the percentage of alcohol contained in ones breath does not work precisely to convert to a blood alcohol percentage for everyone.   The case discusses this issue in detail.

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