We had an important case published by the Court of Appeals recently. There isn't really any new groundbreaking law established here, but there is some follow up language that is instructive to a prior decision in Harvey. It does a couple other things that are important, one less so after the passing of HB139 this year in the legislature, however. It states unequivocally that DUI is a strict liability offense, and no mens rea is required. It also states that reckless driving is not a lesser included offense of DUI. The summary is below.
Facts:
Defendant was slumped over asleep in his car, which was parked at an intersection, in the left turn lane, with his car slightly protruding out into the intersection and his engine running. Another vehicle passed by, noticing this, and tried to yell and honk his horn to awake the defendant, to no avail. This other driver called the police and multiple officers came to the scene.
Officer 1 arrived and noticed keys in the ignition, the engine running, and the manual transmission put in neutral, with no emergency brake engaged. Officer 1 had to physically jostle defendant's arm to get him to wake up. Officer 1 noted that defendant was drowsy and "just spaced out." Defendant admitted to using Xanex, but no other substances. Officer 2 performed field sobriety tests where the defendant showed many clues, showing many signs of impairment. Officer 2 testified about the correlation these clues and tests have to driving, including the need to preform divided attention tasks. (This was important testimony, as will be seen later.)
At trial the defendant's doctor testified that he had prescribed the substance to defendant for the last several years. The state toxicologist testified that the amount present would be in therapeutic ranges, but that the therapeutic ranges could still cause symptoms being seen by the officers. The defendant also testified about prior injuries to his ankles that have never healed that would account for the balance issues he exhibited during the field sobriety tests. The defendant asked for a lesser included offense instruction for reckless driving, which the court did not allow. Defendant was convicted of the DUI, among other charges.
Issues:
Defendant claimed he received ineffective assistance of counsel , that the court erred in not instructing the jury on the lesser included offense of reckless driving, and also made a procedural motion on Rule 23B to allow remand to supplement the record to show ineffective assistance of counsel. The Court of appeals affirmed.
Discussion:
First, defendant claimed that his trial counsel was ineffective for not filing a motion to arrest judgement on the conviction for DUI on the grounds that there was insufficient evidence to support the conviction. He cited the holding in Harvey to support this notion. In Harvey, the Court of Appeals had ruled that the clues exhibited by the defendant in that case were not sufficient on their own to show that defendant was incapable of safely operating a vehicle. There was some concerning language in the opinion for field sobriety tests, but when read in context, the issue was simply that the record was void of any information about why the standardized field sobriety tests are important in correlating the results to driving performance. In Harvey, the officer testified only to what was observed, not why it was important. The Court of Appeals was simply going off the record. The Court of Appeals noted the difference between the current case and Harvey by stating that Officer 2 had made the connection between the SFSTs and driving performance. Also, that the SFSTs did not stand alone in the present case due to all the other information. The biggest takeaway from this differentiation is how important it is for the officer to not only testify WHAT they saw, but WHY it is important. We must protect our records so if cases go up on appeal, the Court of Appeals has the ammunition needed to rule in our favor.
The Court of Appeals also disagreed with defendant's claim that the trial court erred for not giving the lesser included offense instruction. It noted that the elements for the offense are not the same, and therefore reckless driving is not a lesser included offense of DUI. One big differentiation made was that reckless driving requires someone to do it willfully or wantonly, whereas the Court of Appeals noted that DUI is a strict liability offense, and no mens rea is necessary. This is important language for those trial courts that have started to read an "inherent mens rea" into the law, but will also be assisted by the passing of HB139 this legislative session. The overall analysis here is helpful for any argument where a defendant is arguing a lesser included for a DUI offense.
Finally the Court rejected defendant's argument for the remand to supplement the record.
You can read the entire opinion here: State v. Higley
Please let me know if you have any questions or concerns.
Tyson
