Tuesday, April 2, 2013

Drawing Things Out



State v. Gentes, 2013 VT 14 (mem.)

It is no secret that a large number of criminal defense attorneys make their money representing people in DUI cases.  Murders and serious crimes are (thankfully) rare, and to make a regular salary, the defense bar must represent those unlucky and numerous individuals who have decided to take the car for a spin after an evening of tippling. 

The result is that this relatively minor area of the law receives an unusually high level of scrutiny because there is a substantial class of attorneys who have a strong self-interest in creating such challenges.

To be clear, DUIs are not minor.  The statistics largely speak for themselves, and they show that drunk drivers pose a serious risk to the public and that a generation of tough enforcement has led to safer streets and fewer fatalities. 

But the process of stopping, collecting evidence, and processing a DUI for trial is not rocket science or highly creative police work.  Unlike many homicides, for example, the police always have a suspect, and they almost always catch this suspect in the middle of the crime.  Often the car is littered with a treasure trove of circumstantial evidence.  Given such advantages, it would seem ridiculous that there would be the massive number of challenges or a substantial body of aggressive litigation on these issues.


Yet, it does, and the cases continue.  And to their credit, a number of them raise substantive issues that are successful in overturning the charges or that, at the very least, create difficult procedural hurdles that put the state through the wringer to prove the case.  Yet, the point remains that the nature of DUI litigation does not in and of itself explain why so many challenges exist in the first place. 

The real reason DUI cases are so lucrative to attorneys and so prodigious is more complicated.  Let’s be honest, DUIs are important because they are one of the biggest crimes committed by civilians—that is a wide-range of citizens who may have no other criminal record or proclivities toward breaking the law.  A DUI can be and often is a person’s only crime or contact with the criminal justice system.  It can come at any age and to any level of society.  It usually stems from a mixture of the ubiquitous alcohol and poor judgment.  In other words, DUIs often represent a momentary lapse of reason by the offender rather than any nefarious or sustained criminal intent—certain exceptions notwithstanding. 

For these defendants, the difference between a conviction and a lesser charge is huge.  The chance for a dismissal is immense and worth the price.  It is the difference between a criminal record and no criminal record. 

On top of that it has been shown that with some diligence and the right circumstances, a good defense attorney can make a real difference and obtain a significant reduction.

While none of this necessarily explains today’s case, it does explain the large number of DUI challenges that the SCOV sees and the aggressive litigation that is behind it.  For a defense attorney finding a good route to beat a DUI charge is worth its weight in billable hours.

This brings us to today’s case.  Defendant was stopped by a state trooper for going 30 miles above the speed limit.  Trooper detected alcohol emanating from the driver and pulled him out for some roadside exercises.  When Defendant failed those and refused to take a roadside breathalyzer, Trooper arrested him and took him into custody.  Two DataMaster tests later, and it is confirmed.  Defendant was intoxicated.

Here is where things get a little off-track.  After Trooper issued Defendant a citation for DWI, Defendant went to a hospital, as the DUI statute allows, to give a blood sample for independent verification of his blood-alcohol levels.  This sample went the Vermont Department of Health where it was promptly mislabeled and lost.  

When Defendant’s attorney requested that the sample be sent to a New Hampshire lab for testing, the Department could not locate Defendant’s sample, and 45 days later, the unclaimed, mislabeled sample was destroyed according to Department protocol.

Defendant’s attorney thought he had a clear winner.  The State lost my client’s independent evidence, which violates his statutory right to an independent test.  In fact, Defendant cites to prior SCOV cases where the right to such an independent test was held to be integral to statutory DUI scheme. 

Unfortunately, time has eroded this standard, and the statute has been amended to minimize the importance of the independent blood test to the point where the statute now says the absence of such test shall not affect a DUI prosecution unless the arresting officer prevents or denies it. 

Under this new watered-down language, the absence of a blood test is no big deal.  The SCOV goes on to note that the statute looks only to the enforcing officer, the state trooper in this case, for wrongdoing.  Since he had nothing to do with misplacing the sample, there is no negative inference, and the SCOV affirms the trial court’s denial. 

But Defendant is not done.  He makes a constitutional claim that the State’s mishandling of the evidence deprived him of his due process and fair trial. 

As with most constitutional claims, the answer lies in a multi-factor test.  In this case, it is the Bailey Test, which looks to three factors: 1) the degree of negligence/bad faith on the part of the state in losing the evidence; 2) the importance of the lost evidence; and 3) other evidence of guilt shown at trial. 

The SCOV spends very little time shredding Defendant’s claim in light of these factors.  The fact that there was overwhelming evidence of intoxication from the Trooper’s observations of alcohol and behavior to the DataMaster tests augers for very little hope that the lost blood test contained anything other than a vampire martini.  Put the second factor into the category of magical thinking and move on.

As to the first, the SCOV finds only minor negligence and no sign of bad faith in the lost sample.  The medical technician mislabeled Defendant’s sample with a C rather than a G.  There but for the serif go I. 

For the final factor, the SCOV recites the facts and simply waives its hands.  Literally, Res Ipsa Loquitur.  The thing speaks for itself. 

So Defendant’s challenge fails, and another potential tool falls away from the defense bar.  Not to worry.  There will always be another Saturday night, and someone else will soon be calling looking to avoid criminal consequences at any cost.  

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