Illinois DUI Lawyer Blawg

Four consolidated cases before the Colorado Supreme Court raised the issue of whether DUI is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI. In ruling on them in a single opinion, the state high court also addressed:  (1) whether a double jeopardy claim can be raised for the first time on direct appeal; and (2) which tests courts should apply in evaluating whether one offense is a lesser included offense in another offense.

Regarding (1), the supreme court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review these claims for plain error. In so holding, the court rejected the government’s argument that defendants waive their double jeopardy claims unless they raise them at trial through a Criminal Procedure Rule 12(b)(2) challenge to defective charging documents.

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The Times of Wayne County has a reputation in upstate New York for printing all arrests and publishing all mug shots in the county. Accordingly, a 43-year-old DUI defendant bought hundreds of copies in an unsuccessful attempt to prevent his community from reading about his arrest.

After being arrested, he ranted that he didn’t want his photo in that “rag of a newspaper.” As the police press release more politely phrased it, he declined to be photographed “because he did not wish to appear in the local paper.” Based on this refusal (he also refused to provide a breath sample or fingerprints), he was charged with second-degree obstructing governmental administration, in addition to DUI and traffic violations.

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A New Jersey appellate court recently reversed a woman’s 2013 conviction for vehicular homicide. The court concluded that the Somerset County Superior Court erred in not allowing into evidence a note from the defendant’s husband stating that he, not she, was the driver in the 2010 crash that killed a 22-year-old man. The court remanded the case for a new trial.

A 43-year-old woman was sentenced to seven years in prison in May 2014. The collision occurred on Route 78 in Warren Township. Her 2011 BMW struck the man’s 1998 Subaru as the two traveled eastbound. The impact of the crash sent the man’s car spinning across a mound of grass and into a tree, killing him. A chemical test indicated that the woman’s BAC was .087 — just above the legal limit.

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Last month, the Federal Trade Commission (FTC) filed charges against Breathometer, Inc.–a company that markets two smartphone accessories designed to measure consumers’ BAC–and its CEO in federal court, claiming they lacked scientific evidence to support their claims. The complaint, filed on January 23, 2017 in the U.S. District Court in the Northern District of California, seeks a permanent injunction, rescission of contract, monetary damages, and other equitable relief in connection with the marketing and sale of the applications Breathometer Original ($49) and Breathometer Breeze ($99). The company and its CEO recently settled with the FTC.

Both are devices operated in conjunction with the Breathometer smartphone app. While the Original attaches to a smartphone via the audio jack, the Breeze is operated by Bluetooth. The devices work by blowing into the device. Within seconds, a BAC level is displayed on the phone. The company even had a deal with Uber in which Uber would pick up riders whose BACs were too high to drive.

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The Idaho Supreme Court recently vacated a defendant’s DUI conviction because it was enhanced based on a prior conviction obtained in violation of the defendant’s Sixth Amendment right to counsel.

The State charged Farfan-Galvan with felony DUI on November 3, 2014. The DUI was charged as a felony because Farfan-Galvan had two prior DUI convictions, one from 2008 in Jerome County and one from 2010 in Twin Falls County. Farfan-Galvan moved to dismiss or remand the charge, based upon his claim that one of the 2010 convictions upon which the State relied to enhance the charge from a misdemeanor to a felony was obtained in violation of his Sixth Amendment rights. The district court denied the motion.

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