Judging Traffic (August 2018):
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Limit on Prosecutorial Discretion Regarding DL Suspension

The Commonwealth Court of Pennsylvania issued an opinion in Hudak v. Commonwealth on August 14, 2018.  The defendant was arrested for DUI and refused secondary chemical testing, which exposed him to a mandatory driver’s license suspension.  At a preliminary hearing, the arresting officer, the prosecuting attorney and the defendant reached an agreement that if the defendant agreed to participate in an accelerated rehabilitative disposition program, the arresting officer would withhold filing the refusal documentation with the Department of Transportation “DOT.”  However, due to some legitimate confusion on the officer’s part, the refusal documentation was filed.  The defendant’s driver’s license was suspended, and he appealed to the trial court.  The trial court enforced the original agreement and ordered the DOT to reinstate the defendant’s driver’s license.  The DOT appealed. 

The sole issue on appeal was whether the trial court erred in concluding that DOT improperly suspended defendant’s driver’s license due to the terms of the defendant’s plea agreement with the prosecution.  The Commonwealth Court of Pennsylvania determined that the prosecution in Pennsylvania can’t negotiate on behalf of the DOT, who has an independent mandatory requirement to suspend a person’s driver’s license for a refusal to submit to secondary chemical testing.  The appeals court over-ruled the trial court and allowed the DOT to reinstate the defendant’s suspension.

Editor’s note:  This case does not address whether a police officer can withhold the notification to the DOT that a defendant has refused secondary chemical testing. 

Significant Inferences Sufficient to Sustain DWI Conviction

The Court of Appeals of North Carolina issued an opinion in State v. Johnny Becker, Jr. on August 7, 2018.  On July 19, 2015 law enforcement was called for an incident involving a four-wheeler.  When Trooper Parker arrived at 10:16 p.m., there were EMS personnel still rendering assistance to a passenger.  The Trooper noticed that the defendant had a strong smell of alcohol, slurred speech and bloodshot eyes.  The defendant admitted to drinking two hours prior.  The defendant agreed to go with the Trooper and show him the scene of the accident which was in a grassy area near a park.  The defendant admitted he drove the four-wheeler home and the Trooper realized that he would have crossed a public road to do it.  He also admitted he had consumed alcohol two hours prior.  At 10:56 p.m. the defendant took an intoximeter test and his blood alcohol level was at .09.  The defendant was tried and convicted of DWI following a jury trial.  He made a timely motion to dismiss for insufficient evidence following the state’s case in chief.  He appealed the denial of that motion.

The Court of Appeals of North Carolina affirmed the conviction.  They found that although the state hadn’t established the time at which the accident occurred, a reasonable inference was that it had occurred after the defendant admitted that he had consumed alcohol.  They reached this conclusion because there were EMS personnel still working on the passenger.  N.C. law also requires that the state prove a defendant drove on a “vehicle upon any highway, any street, or any public vehicular area” as a required element of the offense of DWI.  The appeals court found that the officers testimony that the defendant had to have crossed a road to get to his house was sufficient to establish this element of the crime.  This case is interesting because the appeals court was willing to allow some reasonable but significant inferences. 

The Importance of State Level Leadership in Combating Impaired Driving

Heidi Coleman, J.D. and Krista Mizenko, MPH published a NHTSA report in May of 2018 titled Impaired-Driving Leadership Model - Findings Based on Three State Case Studies. This is a very well-done report that will provide significant guidance to other states. The abstract to the report states:

Following dramatic declines in impaired driving in the 1980’s and early 1990’s, further progress has been challenging to achieve. While there was a 26 percent decline in the number of alcohol-impaired-driving fatalities from 13,290 in 2001 to a low of 9865 in 2011, the number has crept up by 6.4 percent since then to 10,497 in 2016. These 10,497 alcohol-impaired-driving fatalities represented 28 percent of the total number of motor vehicle fatalities (37,461) in the United States in 2016. Since 2010, the fatality rate per 100 million vehicle miles traveled (VMT) for alcohol-impaired driving has remained between 0.33 VMT and 0.35 VMT. This report contains case studies of an Impaired-Driving Leadership Model, as it was implemented in three States – New Mexico, Washington State, and Oklahoma. Each case study highlights steps in the process that led to the Leadership Model’s implementation, elements of the Leadership Model’s structure, key components of its operation, and impacts that were observed following the Leadership Model’s implementation. Key elements include: starting the process with an impaired driving assessment; developing an impaired driving strategic plan (which serves as a framework for statewide implementation of future actions); assembling a leadership team (which is tasked with both developing the strategic plan and overseeing and ensuring its implementation); ensuring that team leaders and leadership team members have sufficient knowledge, authority and breadth to effectively oversee the plan’s implementation; and receiving demonstrated support from the State Governor. This report also identifies common and distinguishing elements of the Leadership Model as it has been implemented in these three States, lessons learned, and recommendations for other States that might consider implementing the Leadership Model in the future. While this report cannot attribute any causal relationships between the Impaired-Driving Leadership Models adopted in the three States featured, the report does indicate improvements (declines) in impaired-driving fatalities over time, following implementation of the Leadership Model in these three States.

Linkage Between Cell Phone Use and Other Bad Driving Behaviors

The Journal of Pediatrics published an article in July, 2018 written by Catherine C. McDonald, PhD, RN, FAAN et. al, titled Factors Associated with Cell Phone Use While Driving: A Survey of Parents and Caregivers of Children Ages 4-10 Years.  The authors surveyed 760 parent/caregivers and found that in the past 3 months 47% of parent/caregivers talked on a hand-held phone, 52.2% talked on a hands-free phone, 33.7% read texts, 26.7% sent texts, and 13.7% used social media while driving with their child in the vehicle.  They also found a correlation between participants that didn’t always use their child restraint system and the use of cell phone.  Additionally, drivers that acknowledged not wearing a seat belt on every trip or driving impaired also are more likely to use cell phones in a variety of ways while driving.

Admission of Refusals to Submit to Blood Testing

The Vermont Supreme Court rendered an opinion in the consolidated interlocutory appeals of State v. Rajde and State v. Lape, Jr. Both of these cases are factually similar, and both had pretrial hearings before the same trial judge. In each case, the defendant was stopped for impaired driving. In each case the officer had probable cause to believe the defendant was driving impaired and in each case the defendant refused to submit to a blood draw. In each of these cases the state sought to admit the refusals as evidence of guilt, the defendant argued against its admission and the trial court suppressed the evidence.

The state filed an interlocutory appeal. The central issue “is whether the U.S. Supreme Court’s decision in Birchfield prohibits, pursuant to the Fourth Amendment of the U.S. Constitution, admitting at a criminal DUI proceeding a defendant’s refusal to submit to a warrantless blood test.” (It is important to note that there is a secondary issue in this case that involves a statutory interpretation of Vermont’s implied consent law, which may interest Vermont readers.) The Vermont Supreme Court held that the Fourth Amendment as interpreted in Birchfield does not prohibit the introduction of a refusal of a blood test in an impaired driving trial. In doing so, the court joined a number of other appellate courts that reached the same conclusion.

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