News

In State v. Nelson, Division III of the Court of Appeals took up the challenge left over after our Supreme Court decided State v. Baird.  In Baird, the State Supreme Court agreed breath testing is constitutional, but provided little analysis or discussion on the topic from a State law perspective.  This led the defense in Nelson (and the dissenting judge in this decision) to argue the issue was an open question.   Benton County argued the issue was decided in Baird and the majority agreed-noting the plurality plainly stated that position and Justice Gonzalez agreed in his concurrence.  

The full opinion is here: State v. Nelson

Congratulations to Douglas County for vigorously pursuing this DUI case through three trials and multiple appeals.   Special thanks to Kurt Parrish, who worked tirelessly to get this done.  Cheers!  

In State v. Brown, Division III of the Court of Appeals considered the fairly mundane issue of the turn signal requirement.   In the case, the defendant properly signaled his movement from his travel lane to the left turn lane.  But the defendant didn't signal after getting into the travel lane (The court reasoned it was probably because straitening the wheel caused the turn signal to cycle off).   After the left turn, the officer stopped Brown for failing to signal the turn, and later arrested him for DUI.   In a 2 to 1 split, the Court held the stop was illegal.   The majority reasoned there wasn't enough time to comply with the law, there was no requirement to give the signal once the driver was in the left turn lane, and because there was no evidence the turn caused any public safety issue by affecting other traffic. 

Read the full case here:  State v. Brown (Jan 17, 2019)

The court's reasoning was largely based on its interpretation of legislative history.  Typically, a court would not engage in such an analysis unless the plain language of the statute is ambiguous. 

The Benton County prosecutor's Office is considering an appeal to the State Supreme Court.  The opinion adds requirements not explicitly in the turn-signal statute, making it more difficult to enforce. 

Effective December 30, 2018, the State of Utah drops its per se alcohol concentration from the national standard 0.08 down to 0.05 BAC.   Utah is the first state to join the .05 group--a standard embraced by most Western Industrial nations.  In 2013, the National Transportation Safety Board argued for adopting the .05 standard, noting that research proved that above the .05 concentration drivers are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured. The standard is expected to be a challenge for law enforcement officers, as they adapt existing field investigation techniques and move to the .05 per se standard.

See news story: Washington Post Article

In Early December, Michigan residents 21 and older will be allowed to use marijuana and marijuana edibles. They can "possess, use, transport, or process" up to 2.5 ounces (or 15 grams of marijuana concentrate). They can grow up to 12 marijuana plants and store up to 10 ounces in their private residences.  Like Washington, the State won't begin sales immediately.  Sales may begin in 2020.

North Dakota, Missouri, and Utah all voted to allow Medical Marijuana sales.  Each has their own unique arrangement for medical marijuana control.

As a Marijuana skeptic, Attorney General Jeff Sessions kept marijuana advocates at arms length--discouraging federal action on the drug.  His departure, and the leadership change in the House, suggest we may be looking at federal action soon.

Michigan Story: Here

Utah Story: Here

Wisconsin state agencies won a $4.5 million judgment against an east side Milwaukee business and its owner over the sale of synthetic marijuana between 2011 and 2016, Attorney General Brad Schimel announced. Atomic Glass, at 1813 E. Locust St., was one of two businesses sued last year by the state departments of justice and agriculture, trade, and consumer protection over the sale of synthetic THC with such names as "Spice" and "Kush" in violation of a state law prohibiting fraudulent drug advertising. Milwaukee Circuit Judge Timothy Witkowiak last month found Atomic Glass and owner David Kelly of Eugene, Oregon, liable for selling 60,006 packets of synthetic cannabinoid products. General Schimel said the case was pursued as a civil forfeiture, rather than a criminal charge, because "the formula for synthetic drugs changes quicker than lawmakers can outlaw it..

Division II of the Court of Appeals affirmed a Clark County Ordinance prohibiting recreational sales of marijuana in the unincorporated portions of their County.   Emerald Enterprises challenged the ordinance as unconstitutional, and as preempted by state law.  Both challenges failed.  The ruling is consistent with the prior Attorney General Opinion (2014 Opinion #2).  The ordinance remains in effect until revoked, or until the federal government removes marijuana as a controlled substance.

The full case can be seen Emerald v Clark County 2018 Ban on MJ legal.pdf

The Governor's Highway Safety Association Report on Pedestrian Safety reports one consequence of marijuana use and fatalities: pedestrian deaths are up sharply in states with recreational marijuana while dropping in other states.   More data mining is needed to establish the connections between marijuana use and pedestrian deaths, but two are obvious:  Marijuana impaired drivers are most vulnerable to the effects of marijuana in low-stress low-speed environments--leading to slow speed crashes that most endanger pedestrians (expect also to see more hit-and-runs, more fender-benders, and more on-the-job injuries), and pedestrians under the influence of marijuana are more likely to put themselves in harm's way. 

The full report is here:  GHA Report

In State v Brooks the defendant was stopped after driving over the wide solid white lines around the physical gore point for an onramp.   The trial court agreed the stop was lawful, but the Superior Court reversed the conviction for Driving with license Suspended based on its conclusion the law was ambiguous and the Rule of Lenity favored the defendant when a law is ambiguous.  The Court of Appeals reversed the Superior Court and reinstated the conviction reasoning that we never reach the rule of lenity because the zone within the wide white lines is not a "roadway" and a driver may not drive in it.   The concurrence would have held it is the "wide white line" that demarks the violation and not the use of the driving surface.  While that analysis is simpler, and supports the result here, it would not support many gore point intrusions because most are plain white lines.  The Brooks case is broad practical ruling that recognizes the neutral zone around gore points is not a travel lane and incursions indicate poor driving.  

The full case is here:     State v. Brooks

Following a series of statements critical of medical and recreational marijuana in states, US Attorney General Jeff Sessions formally rescinded guidance documents issued during the Obama administration.  AG Sessions explained the former policy guidance was unnecessary.  

Formally rescinding the Cole memo and other guidance documents issued during the Obama administration signals an about-face on the marijuana experiment.   Federal courts will undoubtedly affirm the federal government's authority to enforce federal law.    To the extent state laws conflict, they will be struck down.   Absent a change in federal law, AG Sessions and the US Attorneys have the authority to quickly shut down medical and recreational marijuana sales.  

The full memo is here:   Sessions Recind's Cole Memo Jan 5 2018.pdf

On October 16, 2017, the Georgia Supreme Court held in Olevik v. State that the privilege against self-incrimination found in Georgia's Constitution is more protective than the Federal Fifth Amendment privilege against the same.  The Georgia Constitution includes prohibitions against giving physical evidence and consequently that compelled breathalyzer tests violate the Georgia privilege against self-incrimination. The court interpreted Paragraph XVI of the Georgia Constitution ("No person shall be compelled to give testimony tending in any manner to be self-incriminating.") through a historical lens, saying that the paragraph in question is not coterminous with the scope of the Fifth Amendment, but must be interpreted in light of prior Georgia case law regarding similar language in earlier versions of the Georgia state constitution. The court cited a long line of judicial precedent back to 1879 interpreting the Georgia privilege against self-incrimination as applying to acts, not just verbal testimony. Under this interpretation, the court held that the act of asking the defendant to "breath[e] deep lung air into a breathalyzer," is providing evidence against himself, and violates Georgia's privilege against self-incrimination, overturning the Georgia Supreme Court's 2000 ruling in Klink v. State.   

However, the court rejected the defendant's facial and as-applied challenges to the state's implied consent statute.  The court rejected the facial challenge to the statute because it found that Georgia's implied consent statute is not per se coercive.  The court also rejected the as-applied challenge because it found no basis for a finding of coercion beyond the language of the police notice mandated by the statute. 

In light of these additional findings, Georgia breath test results are admissible--while refusals of a breath test may not be.  That issue was not before the court and will need to be litigated in a future case.   The consequence in Georgia is that more refusals are likely to arise, until the issue is decided.