Celebrating 10 years! 2007-2017

Probable cause for DUI Arrest

I have a case where a defendant may have been driving errati ithacadude2307/05/17
Possibly PC based on the call if the informant wasn't some a saulgoodmanwannabe07/05/17
probably got him in the standard "if it's not your car it's sjlawyer07/05/17
Right, I wasn't sure if he meant the DUI cop smelled it or t saulgoodmanwannabe07/05/17
The car is legally parked, no accident, no threat of towing. ithacadude2307/05/17
Keep in mind that in most states nowadays, the crime is not onehell07/05/17
In my state, this is defined as an "action" to get in contro sjlawyer07/05/17
The guy is parked but there is definitely no physical contro ithacadude2307/05/17
You really do that? Seems like a nice way to piss off the c sjlawyer07/05/17
Well the client is a relatively high up in the federal gover ithacadude2307/05/17
Didn't "your client" also enter a conditional plea? That pes thirdtierlaw07/05/17
No reasonable suspicion? I don't know about that. Caller rep onehell07/05/17
Well, my state is the only one of 4 states where the police ithacadude2307/05/17
I'd be concerned that the guy got off based on a fairly uniq tacocheese07/06/17
Your guy was witnessed to be driving erratically. Cop will jeffm07/05/17
No evidentiary exception, just the state says on point that ithacadude2307/05/17
You are confusing me. Based on my article, I opined that un jeffm07/05/17
Sure if he was still driving they'd need a reason to pull hi onehell07/06/17
This is a fact sensitive issue. Was the car parked on the s orange907/05/17
It was legally parked in a parking space on the parking lot ithacadude2307/05/17
What do you mean it needs to match Navarette perfectly. From thirdtierlaw07/06/17
Like I said, this is one of the 4 states where 911 call by i ithacadude2307/06/17
Why wouldn't you raise identity and drinking after the fact? thirdtierlaw07/06/17
We did not raise those issues because proper raising would h ithacadude2307/06/17
I'm still confused. How would it have derailed your motion s thirdtierlaw07/06/17
ok, I think you are confused because the 911 caller was late ithacadude2307/06/17
I'm not sure what that has to do with the price of eggs in N thirdtierlaw07/06/17
If the motion to suppress based on no reasonable suspicion i ithacadude2307/06/17
And if your motion to dismiss was denied, which it was, you thirdtierlaw07/06/17
It was a 50/50 chance winning or losing a prima facie case b ithacadude2307/07/17
How would MADD even become aware of the case? And even if th thirdtierlaw07/07/17
Cants find the quote right now - the link is no longer worki ithacadude2307/07/17
Well best of luck. Google is not showing me a lot of 100k-20 thirdtierlaw07/07/17
We will see. Perhaps, there was also communication between ithacadude2307/09/17
Why would it be inadmissible? It'd be inadmissible at a crim thirdtierlaw07/09/17
https://casetext.com/case/lexington -fayette-urb-cty-gov-v-sm ithacadude2307/10/17
I would think you would have to be driving fairly erraticall persius07/06/17
Yes it's peculiar, and that peculiarity led them to make con onehell07/06/17
I'm also wondering about the stop issue. Depending what was thirdtierlaw07/06/17
del. 2ski07/06/17
I didn't read this entire thread cause it dissipated into la shikes07/06/17
I am guessing your state is out of the 46 where 911 calls es ithacadude2307/06/17
"lack of consensual encounter is on-record." So the cops onehell07/07/17
So D was convicted of DUI and it is now in appeal? 2ski07/06/17
Well yeah, pre trial motion was the strongest argument and h ithacadude2307/07/17

ithacadude23 (Jul 5, 2017 - 1:55 pm)

I have a case where a defendant may have been driving erratically, then stopped and sat outside abot 150 feet from the car. A cop came based on a 911 call (which observed the driving), asked the D to come to the cruiser and surrender the license (not a consensual encounter). They stood for 7 minutes waiting for DUI expert to come, where the cop smells some alcohol. DUI expert comes, gives field sobriety, breathalyzer (>.08) and asks the defendant if the car over there is his. The defendant says yes, my car. The DUI expert arrests the D for DUI based on the 911 call, field exercises and breathalyzer and the self identification of the car. The D objected because there was no observation of driving, but the second cop said "how did you get here then?" Is there a probable cause for DUI arrest here?

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saulgoodmanwannabe (Jul 5, 2017 - 2:04 pm)

Possibly PC based on the call if the informant wasn't some anonymous tipster. The delay of 7 minutes though might be an issue though if there's nothing the cop is actively investigating in those 7 minutes.

As far as the statements, asking him if it's his car could be a Miranda issue.

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sjlawyer (Jul 5, 2017 - 2:31 pm)

probably got him in the standard "if it's not your car it's abandoned and we'll tow it" response. re: 7 minutes, I think that's sufficient to detain based on alcohol smell, am i missing something?

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saulgoodmanwannabe (Jul 5, 2017 - 3:16 pm)

Right, I wasn't sure if he meant the DUI cop smelled it or the original officer did first.

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ithacadude23 (Jul 5, 2017 - 3:41 pm)

The car is legally parked, no accident, no threat of towing. No admission to driving, only to ownership. The initial stopping cop does not remember if he smelled the alcohol before or after he collected the license. The state requires officers responding to 911 call regarding poor driving to corroborate poor driving personally. Tipster is available to testify but no evidence of veracity at that time. Tipster has 6 traffic related misdemeanors. However the state does not require a misdemeanor to be commuted in the presence of the officer as long as the officer developed probable cause.

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onehell (Jul 5, 2017 - 3:56 pm)

Keep in mind that in most states nowadays, the crime is not "driving" under the influence, it's being in "actual physical control" of a car while under the influence. These laws were specifically designed to deal with the situation where you don't catch someone in the act but soon thereafter. So for example, the guy who passes out at the highway rest stop: It is no longer necessary to prove he drove there, because all they need to prove is that he had "control" of the car, not that he actually operated it.

I've seen cases where merely having the keys in your pocket and being within sight of the car has been enough to establish "actual physical control," which is a question for the trier of fact.

So here, cops get a call for erratic driving but by the time they find the guy, he's parked. Cop testifies that he made the initial contact based on the call, but the PC was generated by his own observations of the defendant from that initial contact. The guy wasn't yet under arrest so he didn't need to be mirandized, and the evidence that the car was his came from his own mouth. So they had PC to believe he was intoxicated and they can presumably say the defendant admitted that he had "control" of the car. Whether he actually drove it is irrelevant. So too is the pressure generated by their questioning. He could have taken the 5th, but he didn't, and he didn't yet have to be mirandized. The "reasonable suspicion" to make contact with him may have come from the call, but the PC came from the cop's direct observations and from the defendant's own mouth.

Doesn't look good IMHO.

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sjlawyer (Jul 5, 2017 - 4:05 pm)

In my state, this is defined as an "action" to get in control of the vehicle - suspect must do is an action to show his intent to put the car in motion (classically, the keys in the ignition). I've never seen a case like you described and I'd gladly try it because I don't see any good judge giving me a bad shake on it (although, in fairness, many bad ones might haha). That seems like a bridge to far.

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ithacadude23 (Jul 5, 2017 - 4:13 pm)

The guy is parked but there is definitely no physical control, he is fairly far away from the vehicle. Car keys in his pocket are also house keys. The cop did not check if the vehicle was recently driven. There is definitely no reasonable suspicion (D sitting on a bench 200 feet from the car, not doing anything criminal, no way to connect D to the car before the initial stop). We are probably good with dismissal based on the fruit of the poisonous tree, but was wondering about probable cause for a false arrest lawsuit.

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sjlawyer (Jul 5, 2017 - 4:40 pm)

You really do that? Seems like a nice way to piss off the cops the next time you get a client in town. Plus, with damages, it doesn't strike me as a ton of cash.

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ithacadude23 (Jul 5, 2017 - 4:54 pm)

Well the client is a relatively high up in the federal government, so background investigation concerns (for clearance, even expunged arrests have to be disclosed). Plus arrest and charges information on the internet has to be wiped out professionally. The case ended up going to the court of appeals. He spent 2 years in the justice system, spent a lot of money on attorneys, time off work to attend hearings, had to wear scram bracelet for 30 days to get appellate bond. He had to spend a night in jail on the night of the arrest, restricted travel out of state for the 2 years, insomnia, anxiety, pain and suffering in the meantime. I have seen 500k awards for a night in jail after DUI when there was false arrest and charges were promptly dropped thereafter. No concerns about pissing off the cops, no more drinking, I imagine if they target him it could be interpreted as retaliation.

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thirdtierlaw (Jul 5, 2017 - 6:18 pm)

Didn't "your client" also enter a conditional plea? That pesky preponderance of the evidence standard in civil court is going to be quite problematic. They will put "your client" on the stand and ask if you were driving that night.

I do not do civil rights violation so take my above comment with a grain of salt. But juries aren't a big fan of people getting off on technicalities.

Also can you provide a cite for the 500k after a night in jail? Maybe I should start doing that work if that actually is true and the guy didn't end up in the hospital somehow.

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onehell (Jul 5, 2017 - 5:21 pm)

No reasonable suspicion? I don't know about that. Caller reports erratic driving and they find a car matching the description in the area described by the caller. If they'd talked to him and he'd showed no signs of intoxication that'd be one thing, but it sounds like they're saying that the call was just a reason to approach him and see how he reacts. From that initial, casual contact he was obviously impaired, according to what cops would presumably say (I assume they'll say the usual stuff about odor of booze, bloodshot eyes etc)

This all just sounds like a roundabout attempt to go back to old-school DUI law where they had to actually catch you in the act. That is simply no longer the case. Now indeed, you might be able to convince a judge or jury that as a FACTUAL matter, control is lacking and thus maybe get an acquittal at trial (as opposed to motions). But to say they had no reason to talk to him in the first place, exclude the rest as fruit, and then sue for false arrest, sounds like quite a stretch. Regardless of whether he is ultimately convicted or not, in my state at least they had plenty of reason to make contact and then developed plenty to make the arrest.

Here's how it would go in my state: "Motion to suppress denied, but you are free to argue to the jury that your client was not in actual physical control of the vehicle at the time he was found **or within 2 hours of when he was found**" [another tough statutory standard]. By some miracle, maybe the jury acquits. Even with an acquittal, you still lose your license because the administrative proceeding before the DMV ALJ has only a civil standard of proof, and you certainly don't get a finding that there was no reasonable suspicion to talk to him initially or PC to investigate further.

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ithacadude23 (Jul 5, 2017 - 5:43 pm)

Well, my state is the only one of 4 states where the police cannot use the 911 call for reasonable suspicion. They have to observe a driving violation in person. So if they have a 911 call and by the time they are there the person is out of the car, then they are out of luck for reasonable suspicion for DUI, only maybe drunk in public, which he was not charged with. The question is whether after 7 min detention they can bring a DUI cop and start building probable cause for a completed DUI. I don't know, may be some parallels to us v. Rodriguez, where a drug dog 7 min after the stop was considered unconstitutional ( reasonable suspicion had expired).

Alternatively, just a malicious prosecution lawsuit may be filed.

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tacocheese (Jul 6, 2017 - 9:45 am)

I'd be concerned that the guy got off based on a fairly unique procedural rule/law. A 1983 violation alleges a violation of the 4th Amendment, not just a "bad arrest." Getting over the qualified immunity motion seems like it will be tough.

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jeffm (Jul 5, 2017 - 5:51 pm)

Your guy was witnessed to be driving erratically. Cop will say so. I'm not a criminal lawyer, but is there a hearsay exception to allow cop to talk about what the informant said? Present sense impression or something like that? Is the informant "unavailable" per the rules of evidence?

Some criminal attorney here ought to know the law on allowing a cop to give hearsay testimony.

If not for the informant's testimony, your guy should walk if he didn't admit already. Here's a good article: http://duinewsblog.org/2014/05/11/can-sleep-car-im-drunk-drive-actual-physicacal-control-vehicle-arizona/

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ithacadude23 (Jul 5, 2017 - 5:56 pm)

No evidentiary exception, just the state says on point that a 911 call communicating erratic behavior has to be corroborated while the person is driving. If it is not, 911 call description of the driving is not enough for a stop. The cops never saw the person driving at all or driving erratically. Your article is off point because nobody was in the car.

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jeffm (Jul 5, 2017 - 6:28 pm)

You are confusing me. Based on my article, I opined that unless the cop can get in the hearsay, your guy should win.

I think the article in on point because it stands for the proposition that even sometimes when people are in the car, they are not "in control" of the car. A guy sitting 150 feet from the car is certainly not "in control" of the car.

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onehell (Jul 6, 2017 - 1:49 am)

Sure if he was still driving they'd need a reason to pull him over, and apparently in your state that can't come from a 911 call alone, but this is not about "reason for a [traffic] stop." It's about him already being out and they just start talking to him, a consensual phase of the encounter.

I don't question your states peculiarities, just wondering if maybe the cases you're thinking about may be distinguishable I.e. involved pulling over a car they had been called about, as opposed to just talking to a guy on the street. You can't pull someone over just to chat, but you can talk to citizens who are already just milling about on foot.

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orange9 (Jul 5, 2017 - 6:41 pm)

This is a fact sensitive issue. Was the car parked on the side of a highway and your client was 150 feet away sitting on the guardrail? Or was the car parked in the parking lot of an apartment building and your client was 150 feet away sitting in his living room? It all comes down to these issues to establish whether there was PC that he was driving.
While many state DWI laws have essentially evolved into defining the elements as being intoxicated and in physical control of the car; to my knowledge, it is essentially a simplification of whether you had already driven while intoxicated, or are about to drive while intoxicated.
I would also check your state's case law about 911 calls. "Erratic driving" may not be enough for PC, but allegations of weaving, switching lanes without signalling, not being able to maintain a lane, may be enough to sustain PC.

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ithacadude23 (Jul 5, 2017 - 10:17 pm)

It was legally parked in a parking space on the parking lot in front of the building and he was sitting 150 ft from the car on the bench in front of the apartment building. The state dui case law does not have a whole lot about probable cause in situations like this, but a lot of reasonable suspicion cases. Overall, if the police did not see you break the law while driving, you are in good shape ( unless your case matches Navarette perfectly). It is a totality of circumstances test, but generally police not seeing personally a person commit a driving violation weighs in favor of the defendant, even if the driving was a little unusual, people walked away from the charges. E.g., in one case the police followed a car based on 911 call for a while, the car pulled over and stopped for no reason, which initiated the traffic stop, and that was not enough.

It is really an emerging area of the law because just recently people did not have phones to call from their cars on.

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thirdtierlaw (Jul 6, 2017 - 5:52 am)

What do you mean it needs to match Navarette perfectly. From what you describe, it sounds like it matches fairly closely with Navarette with one major exception, the caller wasn't anonymous.

It seems strange to me that your state will allow stops based on Navarette. But they offer greater protection for defendants when the informant is a known entity that would be available to testify at at any proceedings arising from the call. It is possible, (yay! common law system), just a strange idiosycracy.

The much stronger case is the identity issue or the defendant could have drank once getting out of the car.

That being said, the two states I practice in would find there was reasonable suspicion.

Whether it'd survive a motion to dismiss is another story.

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ithacadude23 (Jul 6, 2017 - 7:25 am)

Like I said, this is one of the 4 states where 911 call by itself is not enough to stop. In the other 46 it is A-ok - if a cop finds that reported car he can stop it without observing anything illegal. Thankfully, we are still holding out of this rule. We did not raise identity or drinking after issues during trial due to other reasons so now we are just working off the transcript in appeals.

Navarette only applies to ongoing and completed felonies and ongoing misdemeanors. Navarette does not cover completed misdemeanors, which this one is...

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thirdtierlaw (Jul 6, 2017 - 7:58 am)

Why wouldn't you raise identity and drinking after the fact? Unless your client told the police he had not been drinking and had driven the car, the state will fail to even prove the first element of the charge. That really is DUI defense 101.

You claim it was for other reasons, which have not been disclosed. That always raises red flags when I hear that. Those "undisclosed" facts are usually the ones I find that completely destroys my client's theory of the case.

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ithacadude23 (Jul 6, 2017 - 9:11 am)

We did not raise those issues because proper raising would have required talking with the police officers and prosecutors which would have revealed our motion hearing strategy and could have harmed the client. In other words, if we had to talk to them they would have known where we are going and could have changed the cop testimony, would have brought in additional case law, etc. Trust me, it was well thought through.

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thirdtierlaw (Jul 6, 2017 - 9:54 am)

I'm still confused. How would it have derailed your motion strategy? I can't think of a single reason they wouldn't have appeared in the exact same motion. You move to suppress the stop for the exact same reasons as your motion to dismiss for a failure to make a prima facia case. They did not see you driving. I don't see how they are mutually exclusive.

I can't think of a single disclosure requirement that would require you to notify the State that you planned to question the officer on whether or not they knew if the client was drinking after getting out of the car.

How would their testimony have changed in any way? If they would change their story to say they saw you driving, they'd have done it during your motion to suppress. So instead of making the obvious and easy argument for the judge, assuming you have given all the facts in the case, you chose to forfeit that defense and instead put forth a more technical legal argument, which neither the State nor the Judge agreed was accurate?

I understand every jurisdiction is different. But I do a lot of DUI cases each year and I'm still scratching my head. I'm not trying to Monday morning quarterback here, I'm really trying to understand. It'll never hurt me to understand other attorney's train of thought when trying these cases.

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ithacadude23 (Jul 6, 2017 - 1:18 pm)

ok, I think you are confused because the 911 caller was later contacted based on his phone number and is available to testify. That's why there is no prima facie case. But in the end not going to trial actually may help out because since the court never determined guilt, the client is eligible for automatic 1st misdemeanor arrest expungement. So if there was trial and the conviction could have been overturned by appeals later, per law the client is not legally "innocent" and is not eligible for arrest expungement (even if there is no conviction). On the other hand, conditional guilty plea is voided by the grant of the motion to suppress, so there was no plea, no trial, no evidence, no determination of guilt, so in my state under this circumstances the client is "innocent." (Regardless of what actually happened).

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thirdtierlaw (Jul 6, 2017 - 5:15 pm)

I'm not sure what that has to do with the price of eggs in Norway. A motion for failure to make a prima facie case is a motion to dismiss. Maybe your jurisdiction has a different name for the motion. An officer never saw you operate the vehicle. There may or may not have been an improper stop. You said that the law is clear that the stop was invalid.

So I'm not understanding how it isn't a joint motion to suppress and motion to dismiss. If the 911 informant didn't see the client and only saw the car, then there is no case. They'll automatically fail to prove the first element of the offense.

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ithacadude23 (Jul 6, 2017 - 7:12 pm)

If the motion to suppress based on no reasonable suspicion is granted, either party submits a follow up motion to dismiss, which is automatically granted.

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thirdtierlaw (Jul 6, 2017 - 7:17 pm)

And if your motion to dismiss was denied, which it was, you still continue arguing your second motion for dismissal. It gives you two bites of the apple, allows the cop to give you great impeachment material for trial if you lose, and most importantly, you save your client money by not needing future hearings.

Wouldn't your client have liked to know whether or not the state had the ability to make a prima facie case prior to taking a contingent plea?

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ithacadude23 (Jul 7, 2017 - 9:10 am)

It was a 50/50 chance winning or losing a prima facie case but with the MADD campaigning so hard against judges who are favorable to DUI defendants (we had some judge reelections refused over being too mild on DUI) it was just not a good game. You can know everything about the law, but you have to understand that nowadays being charged with DUI is different then say being charged with embezzlement. Recognition of your constitutional rights is severely compromised because no judge will risk his career on you killing someone 2 days later with your car because maybe the constitution was on your side and he let you walk. These are just the political implications of having elected judges and having MADD very active in judge elections.

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thirdtierlaw (Jul 7, 2017 - 2:38 pm)

How would MADD even become aware of the case? And even if they were the exact same "influences of MADD" would exist on the motion hearing. If you have a 50/50 chance of winning a motion you file it. Especially as a criminal defense attorney. I'd say 75% of the motions I file or threaten to file only have a 10-20% chance of success. Only filing motions you are certain you will win is a great way to expose yourself to malpractice and/or post-conviction relief issues for ineffective assistance of counsel.

You are writing that this is a 100% forgone conclusion that you will be successful on appeal. But if this is such an obvious open and shut issue, the prosecutor would have tossed the case prior to the arraignment, or the judge would have tossed it at arraignment for lack of P.C., or you would have been successful at the motion hearing. If your legal analysis is 100% spot on, it would not have mattered whether or not someone played the 9-1-1 call in open court. (assuming you're the same person with the nearly identical fact pattern and user name from a couple weeks ago.) From how you described the law, you could have stipulated to the admission of the 9-1-1 call because it is inconsequential to whether or not the stop was valid.

I truly wish you the best of luck on appeal and if your interpretation of the law is correct you deserve to win. But when you're tossing around claims of malicious prosecution and unlawful arrest... it makes me question your legal analysis.

I'm still waiting to see the cite of the $500k award for a person who spent one night in jail.

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ithacadude23 (Jul 7, 2017 - 3:17 pm)

Cants find the quote right now - the link is no longer working, but even if you google "dui false arrest settlements" you will get a lot of 100k-200k awards. This is a DUI arrest Nobody is trying to game the system here against the client, just the way things may flow out eventually.

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thirdtierlaw (Jul 7, 2017 - 3:37 pm)

Well best of luck. Google is not showing me a lot of 100k-200k awards. I saw someone made a CLAIM for $500k, but that is a far cry from the award. I did see a few 10k-20k awards. The only other large settlement that appeared was ~$200k plus legal fees, however, those cases were much more egregious than what you described above and an attempt to cut-off what was shaping up to me a massive class-action lawsuit.

Even if you prevail and the case was dismissed, they will have audio of your client pleading guilty to the charge of DUI. How you'll overcome that in a civil proceeding, I can't even fathom.

Also seems like a lot of work for a relatively low payoff. I'm not sure $3-6k is worth getting pulled over/followed by the police everytime I leave my driveway. I'll just stick to DUIs.

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ithacadude23 (Jul 9, 2017 - 9:45 am)

We will see. Perhaps, there was also communication between the judge and the prosecutor without notice to the defendant and his attorney. Perhaps, the AG of the state, who is generally responsible for defending criminal appeals) kicked the case back to the newbie county prosecutor (for one reason or another) who messed everything up real well in appeals and made it look like the DA did not know what he was doing.

Conditional guilty plea is voided upon reversal by an appellate panel. You can certainly play the voice recording of it being made, but it will be inadmissible and probably malpractice.

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thirdtierlaw (Jul 9, 2017 - 1:40 pm)

Why would it be inadmissible? It'd be inadmissible at a criminal trial on the same matter. What rule of evidence excludes it from civil court?

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ithacadude23 (Jul 10, 2017 - 8:58 am)

https://casetext.com/case/lexington-fayette-urb-cty-gov-v-smolcic

Conditional guilty plea is voided upon the grant of motion to suppress by the court of appeals. Legally, it is like it never happened. There is nowhere where it says so directly (you need to dig in cases) but then is it not that why the lawyers are paid so much? 🤣

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persius (Jul 6, 2017 - 3:33 pm)

I would think you would have to be driving fairly erratically for someone to call. Sitting outside,150 feet from your parked car is even more peculiar. If I am a cop I am assuming someone was texting until I see their drunk ass sitting by their parked car. This guy must have been trashed.

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onehell (Jul 6, 2017 - 4:20 pm)

Yes it's peculiar, and that peculiarity led them to make contact with him, and that conversation ultimately led to the formation of PC to make an arrest. But the question is, did they really "stop" him or otherwise detain him at that initial moment? There is a difference between what they needed to make an arrest vs. what they needed (if anything) to talk to him initially.

I think something OP **MIGHT** be missing here is that there was no "stop" that I can see. It's not like they responded to the call, followed the car and then pulled it over without observing any erratic driving for themselves. The guy was already stopped and out of his car when they found him, so they walked up and started talking to him. PC (or perhaps the lesser standard of reasonable suspicion) would have been necessary to pull him over, but walking up to someone on the street is initially a consensual matter if they hadn't detained him.

So because he wasn't being pulled over there wasn't the brief detention associated with any traffic stop. You need a reason to pull someone over, but you don't necessarily need a reason to just chat with someone. When that chat reveals evidence of a crime, the nature of the encounter changes and PC/RS at some point becomes necessary, I just don't know that there's any need for PC/RS at the moment of the initial encounter as there would have been with a traffic stop.

So the fact-intensive issue, I think, is whether they detained him without probable cause (or perhaps the lesser standard of reasonable suspicion), which necessarily hinges on when exactly the encounter escalated from a conversation to a detention, however brief. I don't know if that moment is at the moment of initial contact as it would be in a traffic or Terry stop because again, simply making contact with someone out in the community on foot is not the same as pulling over a car.

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thirdtierlaw (Jul 6, 2017 - 5:17 pm)

I'm also wondering about the stop issue. Depending what was said, it may not even qualify as a terry stop. They go to investigate, see the car, then get out to look around. "Hey guy on the bench did you see who was driving this car?" That isn't a Terry Stop.

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2ski (Jul 6, 2017 - 5:20 pm)

del.

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shikes (Jul 6, 2017 - 6:32 pm)

I didn't read this entire thread cause it dissipated into law and order spatter among some people who were gunners in criminal law/procedure but clearly never practiced criminal law.

I'm a former prosecutor who has handled hundreds of DUIs. I cannot speak to other jurisdictions, but in MY JURISDICTION I'd easily prosecute this and get around any of the "issues you have listed.

1)The cop doesn't need to see you drive the car, he needs to have some evidence that you did. I've had cases with independent witnesses (such as yours), I've had cases where the guy admitted the car was his and the engine was warm, I've had cases where we used the "How the hell else did he get here?" argument and won (guy parked in a field sitting next to the car).

2) There are no Miranda issues. There is no arrest. This is not a Terry stop. Cops are ENCOURAGED to ask as many questions as possible during a full on DUI investigation as Miranda does not attach at that point. When you get pulled over on suspicion of DUI, you're not under arrest, and my officers were always encouraged to make small talk / ask about zip code / ask what route they took to get here / etc etc etc. Basically anything to get the people talking, cause its all coming in until the cuffs are on. Its an investigative detention based on reasonable suspicious of DUI.

3) The 911 call probably sinks you regardless of what else happens her, but the cops have so many other avenues to work with. How else did the car get here? Was the car legally owned and registered by the same guy as on the license? Smell of alcohol + observable factors = enough for reasonable suspicious which = enough for detention for DRE = enough for arrest after DRE states the guy is drunk. If your state has a good faith exception (my state does not) thats even worse.

I'm not saying its not worth filing a suppression motion, I'm saying I've won suppressions on borderline identical facts. Actual physical control of the vehicle is not as difficult to prove as you may think. Listen to the 911 tape too, if the person identifies themselves and clearly identifies your guy's car, you're toast, settle for whatever you can unless you have some newbie ADA who has no clue what is happening.

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ithacadude23 (Jul 6, 2017 - 7:28 pm)

I am guessing your state is out of the 46 where 911 calls establish reasonable suspicion. Up to now, in this state cops have to observe a driving violation personally. The policy concerns are that if they don't, then you can follow your enemy or whatever, tell on him and then he is screwed. Lacjnof consensual encounter is on record. The initial encounter began with asking to come to cruiser, give license and then wait license less for 7 minutes until the dui specialist arrives. So not a lot of talking before, no smell of alcohol until getting the license.

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onehell (Jul 7, 2017 - 1:26 pm)

"lack of consensual encounter is on-record."

So the cops actually admitted that they detained him based solely on the 911 call, as opposed to "just talking"? You'd think they'd be smart enough to know to say that they noticed bloodshot eyes or smell of alcohol or something before things escalated.

In any case, you make much of this caselaw in your state about the cops needing to independently observe bad driving, but were those cases in the context of a traffic stop? If so, such cases sound distinguishable to me.

Besides, even if you won your appeal, which for the reasons shikes elegantly described seems unlikely, a subsequent 1983 case would fail the "well-established rights" test pretty much by definition, because it took you creating new caselaw to establish the right in question.

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2ski (Jul 6, 2017 - 10:50 pm)

So D was convicted of DUI and it is now in appeal?

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ithacadude23 (Jul 7, 2017 - 8:59 am)

Well yeah, pre trial motion was the strongest argument and having a trial could have been very damaging to client's reputation who has otherwise a clean slate and has a sensitive government job (plus no trial allows for expungement later) so we did a conditional guilty plea and went to appeals to contest the denial of the motion to suppress. So far so good....

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