TAKING CARE OF BUSINESS

1. TAKING CARE OF BUSINESS TACDL’S ANNUAL DUI SEMINAR OCTOBER 21-22, 2010

3. CASE LAW UPDATE OF DUI AND RELATED MOTOR VEHICLE OFFENSE

4. TENNESSEE SUPREME COURT DECISIONS OCTOBER 1, 2009 - PRESENT THE GOOD, BAD AND UGLY RESULTS

5. State v. Nash 294 S.W.3d 541 (Tenn.2009)

6. THE UGLY • It is not improper for judicial commissioners to be a fact witness at trial on a case where he/she determined probable cause for issuance of the arrest warrant • Unsolicited references in trial testimony to Defendant’s prior crimes not grounds for mistrial • A discharged jury cannot be reconvened to serve on any further proceedings where a jury is required

7. THE BAD • The improper discharge of a jury does not raise double jeopardy concerns for enhancement issues

8. THE GOOD • The appellate record was insufficient to reasonably expect a different result

9. TAKING CARE OF BUSINESS: • Where judicial commissioner’s testimony relates to evidence resulting from his/her independent investigation continue to object • In the absence of a mistrial, generally demand a curative instruction and always demand a jury-out hearing to determine how witness knew of prior crime, any discussion with D.A., and what prompted the witness to bring it up

10. State v. Brotherton ___ S.W.3d ___, 2010 WL 3733914 (09/27/2010)

11. THE UGLY • Police have reasonable suspicion to stop a vehicle with a broken taillight that emits a white light

12. THE BAD • The Court’s holding does not appear to differentiate between the tail lamp requirements under the statute and the stop light requirements

13. THE WORST • The Court’s holding appears to open the door for the adoption of the “good faith” exception to an otherwise unlawful stop

14. THE GOOD • The statutory requirements for tail lamps and stop light are different so Brotherton may be distinguished • Taillights are not required to be maintained in factory conditions • Red repair tape is not per se grounds for reasonable suspicion

15. TAKING CARE OF BUSINESS • Be sure you know how your clients taillight is constructed and take pictures • Memorize and carry with you at all times State v. Taylor, 1987 WL 25417(Tenn.Crim.App)

16. THE COURT OF CRIMINAL APPEALS Are There Any Treats in That Damn Candy Bowl?

17. State v. Elizabeth Gay Tindell 2010 WL 2516875 (06/22/2010)

18. THE UGLY • No confrontation issue under Crawford and Melendez-Diaz for admissibility of BAC • Source code of breathalyzer not discoverable under Rule 16 • Not in possession, custody, control of State • Failure to establish material to defense case

19. THE BAD • Supreme Court unlikely to reverse if appeal accepted

20. THE GOOD • Door not shut on production of source code: • “Satisfaction of Rule 16 is still a question for trial courts to decide…” • Case –by-Case analysis required • Rule 17 subpoena a possible option

21. TAKING CARE OF BUSINESS • Develop methods for showing materiality • Read State of New Jersey v. Jane Chun, 943 A.2d 114 • Read State of Minnesota v. Dale Underdahl, 767 N.W.2d 677 • Obtain RFP issued by State and contract entered with manufacturer of EC-IR II • Obtain all other TBI documents, manuals, etc. relating to EC-IR II, including daily calibration logs

22. NOT TAKING CARE OF BUSINESS

23. OFFER OF PROOF • State v. Tindell • Record devoid of any evidence or offer of proof to support Defendant’s claim that production of source code material

24. State v. Soller, 2010 WL 2301743 (06/09/2010) Perm to Appeal filed 08/23/2010 • Defendant convicted of several felony motor vehicle related offenses arising from personal injury accident • Notice of defense expert week before trial • Trial Court gave option of exclusion or continuance • Defendant in jail, proceeded to trial

25. ISSUE: • Error to exclude expert because had to choose between right to speedy trial and right to mount defense • HELD: • Narrative summary of offer of proof insufficient to allow meaningful review of what expert’s opinion was • Better practice is question and answer format, particularly where evidence technical

26. CERTIFIED QUESTION OF LAW • State v. Wilson, 2010 WL 457499 (02/10/2010) perm to app 07/09/2010 • Blood sample taken more than two (2) hours after arrest admitted by trial court • Judgment does not contain or reference certified question of law although an Agreed Order was entered simultaneously that met requirements • Appeal Dismissed

27. State v. Shelton, 2010 WL 9974 (01/04/2010) • Appeal dismissed for failure to comply with Rule 37 • Issue lost was the constitutionality of the stop but facts not included in opinion

28. FIELD SOBRIETY TESTS • State v. Stratton, 2009 WL 5125099 (12/22/2009) • No motion in limine to the administration of the finger-to-nose test • State v. Byington, 2010 WL 2812664 (07/19/2010) • No motion in limine to ABC’s, finger count

29. State v. Wright, 2009 WL 4282029 • No motion in limine to finger-to-nose, ABC’s, finger count • State v. Rogers, 2010 WL 454999 (02/10/2010) • No motion in limine to ABC’s, finger count, finger-to-nose (no other test administered)

30. MISCELLANEOUS • State v. West, 2010 WL 2787827 (07/13/2010) • FBI agent qualified as toxicology expert without objection to scope of expertise, allowed to testify to effects of various drugs on central nervous system based on what she had read in unspecified reference materials

31. THERE ARE TREATS IN THE CANDY BOWL • State v. Meador, 2009 WL 4738755 (11/11/2009) • After successfully having a .17 BAC suppressed pretrial, the State introduced at trial, without objection, an “Alcohol Influence Report” the officers prepare in DUI cases which contained the BAC • Counsel realized it in deliberations and requested a mistrial • On appeal, admissibility of documents upheld, but case reversed under plain error rule and court’s failure to declare a mistrial

32. State v. Geselbracht, 310 S.W.3d 402 (Tenn.Crim.App. 2009) • Affirmed the trial court’s dismissal of indictment because law enforcement “frustrated” defendant’s reasonable efforts to obtain an independent blood test by ignoring his request for one