IN THIS ISSUE

February, 2013

  • Postal Service Claims Immunity from Traffic Laws

  • Anonymous Tips and Driving Intoxicated

  • What’s Happening in the States

  • Problem Solving Courts Census

  • Funding Options for DUI Courts

  • Dangerous Driving

Editor: Greg Hurley

Postal Service Claims Immunity from Traffic Infractions
The Lookout reported on February 1, 2013 that a US Postal Service attorney claimed immunity on behalf of US Postal Service delivery personnel from $700 of traffic infractions in East Cleveland, Ohio.  In a letter addressed to both the city and American Traffic Solutions (ATS), Postal Service attorney Jennifer S. Breslin said, “In providing mail service across the country, the Postal Service attempts to work within local and state laws and regulations, when feasible…However, as you are probably aware, the Postal Service enjoys federal immunity from state and local regulation.”  ATS is an Arizona-based company that enforces East Cleveland’s camera citations.  In a response, George Hittner, an attorney for ATS, stated that both caselaw and the US Postal Service manual both suggest that the USPS is not immune from local traffic enforcement.  The really interesting aspect of this story is that both of the letters are attached as PDF to the article and can be accessed thru the link above.

Anonymous Tips and Driving Intoxicated
Andrew B. Kartchner wrote a Note for the most recent edition of the Regent University Law Review titled, Virginia in the Driver’s Seat:  How the Supreme Court of Virginia Can Help the Supreme Court of the United States Finally Establish the Drunk-Driving Exception to the Anonymous Tip Law.  The article addresses situations when the police receive an anonymous tip that the driver of a particular car is intoxicated.  A majority of states have ruled that the police may make an investigatory stop without witnessing any facts that would amount to reasonable suspicion and without violating the Fourth Amendment to the U.S. Constitution for anonymous tips of driver intoxication.  However, in Virginia and a minority of states, the police must wait until they observe facts which amount to reasonable suspicion of driving under the influence.  The note mentions that the approach adopted by the majority of states has been coined the “drunk-driving exception.”  The United States Supreme Court was presented this issue in Harris v. Commonwealth, 668 S.E.2d 141, 146 (Va. 2008) and the Court denied certiorari. However, Chief Justice Roberts dissented in the denial and stated that the Court should resolve this issue as it has "deeply divided" the lower courts.  This is an interesting and well written article.  A limited number of electronic copies are available from the NCSC Library by request from Greg Hurley at ghurley@ncsc.org .

What’s Happening in the States

Arizona
The Arizona Court of Appeals ruled that a DUI conviction can be based upon evidence that any chemical compound from marijuana use is found in the blood without evidence of impairment.  On February 12, 2013 the memorandum decision was designated as an opinion for publication. For more information see the :

Superior Court ruling; Court of Appeals ; and Case activity.

Georgia
In Georgia new DUI laws take effect:

New DUI laws going into effect in the State of Georgia today will include expanded permits for first-time offenders and so-called "two in five" offenders, with the aim of improving treatment of people who drive drunk.

A $37,700 grant has been awarded to the Troup County DUI/Drug Court by the Governor’s Office of Highway Safety.

Illinois

The city of Chicago will be switching red-light camera contracts away from the Redflex firm after an investigation into possible improper gifts to city employees was opened.

Minnesota
The Minnesota Court of Appeals has ruled that a Segway is not a motor vehicle and the drunk driving charge has been dismissed despite that fact that the operator had a blood alcohol level of 0.19.

New Hampshire
The New Hampshire Supreme Court  will hear a DUI case that examines the “mutual aid agreement” between two towns where the officer without jurisdiction blocked the impaired driver in a parking lot until an officer with jurisdiction arrived.

New York
New York governor has a plan for speeding tickets:

In his budget proposal, the governor calls for changing the rules that allow local courts to let a defendant plead to a lesser, non-moving offense — and then pocketing the money from fines the state would otherwise get.

In Manhattan a DWI attorney makes a FOIA request for maintenance records for breathalyzers and claims that at least one malfunctioning machine was put back without a repair.

Oregon
The Oregon Court of Appeals ruled in favor of a 2009 law on lengthening the eligibility period for diversion from DUI charges. Oregon Court of Appeals upholds DUI law.

Pennsylvania
A federal investigation of alleged ticket-fixing in Philadelphia Traffic Court affects several judges.

Vermont
Vermont will expand DUI Courts with a $300,000 federal grant.

Virginia
The Virginia Court of Appeals ruled that the blood certificate could not be introduced in evidence in a case involving the death of two university students. The defendant had not been place under arrest within the three hours required under Virginia’s implied consent law for the blood draw.

In a Virginia Supreme Court case a prosecutor was granted a writ of mandamus compelling the limited jurisdiction trial judge to sentence the defendant for DUI.  The district court judge had continued the case with several good behavior requirements and then on completion reduced the charge to reckless driving rather than DUI.  Since the original case was in district court which is a court not of record s there was no record of the original hearing.  Kelley v. Stamos, __ Va. _ (Jan. 10, 2013).

Washington
In Washington state legislators are discussing the possibility of campus DUI courts. Persons between theages of 18 and 25 have a high rate of binge drinking and so college campuses may be an appropriate place for DUI Courts. Colleges would work with the judges to impose academic sanctions that the judges would not otherwise be authorized to use.

Problem Solving Courts Census
The National Center for State Courts began conducting a Census of Problem-Solving Courts on January 30, 2013. The Census will compile data on all of the nation’s problem-solving courts (including drug courts and DUI courts) and identify key components of program design and data reporting capability.

Funding Options for DUI Courts
The main funding for DUI Courts is through the following grants:

The BJA Adult Drug Court Discretionary Grant Program FY 2013 Competitive Grant which is already closed for this year.  Upcoming grants are expected from the following:

The Joint Adult Drug Court Solicitation to Enhance Services, Coordination, and Treatment.  Here is the FY 2012 Grant Announcement.  

SAMHSA Treatment Drug Courts. Here is the 2012 Announcement.

Dangerous Driving
The February 2013 issue of Trial magazine (subscription required) published by the American Association for Justice includes several articles on dangerous driving including “Discovery Issues in Distracted Driving Cases.” The article discusses discovery of cell phone and texting records in these types of cases. The issue also discusses the EndDD.org (End Distracted Driving) website created by a trial lawyer whose daughter was killed by a distracted driver.  The site includes resources and a PowerPoint for presenters as well as information about the 2012 Distracted Driving Awareness Month (April). Other articles of interest include “Small Trucks Big Regulations,”  “Put the Brakes on ‘Curbside’ Bus Abuse,” and “Handling a Driver Fatigue Case.”

Texas DRE Case
The Court of Criminal Appeals of Texas issued an opinion in Everitt v. State of Texas on February 6, 2013.  Although the opinion is short, the procedural history is complex.  Mr. Everitt was stopped in 2010 and arrested for driving impaired.  During the investigation, he admitted to taking hydrocodone.  Over the objection of counsel for the defense, the state was able to admit the hydrocodone admission and use DRE testimony to link it to observations made during the course of the investigation to hydrocodone impairment.  The defendant was convicted.  The defendant appealed to the Court of Appeals, an intermediary appellate court. 

The Court of Appeals ruled that the defendant had failed to preserve the issue of whether the trial court abused its discretion admitting the expert DRE testimony.  The Court of Criminal Appeals of Texas overturned the appellate court below and held that the defendant had fully preserved the issue regarding DRE testimony.  The case was remanded back to the Court of Appeals to determine whether the trial court abused its discretion admitting the expert DRE testimony.  The interesting thing about this case is that defendant is arguing  that the State had failed to show the relevance of that statement based upon a reliable expert opinion showing the connection between his hydrocodone use and his intoxication at the time he was driving.

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