Officer's Conversation with Driver was Consensual - Wyoming Supreme Court

Here is a good case law result out of Wyoming regarding extension of the scope of the stop and consensual encounters. Summary provided by IMLA. Here is a link to the case: http://www.courts.state.wy.us/Documents/Opinions/2017WY9.pdf

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Search and Seizure:  Detention Ended after Officer Delivered Speeding Ticket and Said "Have a Safe Day;" Driver's Conversation Thereafter was Consensual 

Tibbetts v. State of Wyoming, 2017 WY 9 (Wyo. Feb. 1, 2017).

The detention created when a police officer pulls over a driver concludes after the officer issues a citation (or not) and indicates that the driver is free to go.  If the driver then agrees to continued conversation with the officer, that interaction is deemed to be voluntary and outside the scope of the original stop.

On May 3, 2013 a state trooper stopped Michael Scott Tibbetts (Tibbetts) for speeding outside Gillette, Wyoming. The trooper obtained Tibbetts' driver's license and proof of insurance, wrote the speeding citation, handed it to Tibbetts and told him to "drive safe and have a safe day." As the trooper was walking away from Tibbetts' truck, and while the lights on the police cruiser were still flashing, he turned around and asked Tibbetts if he would mind answering a few questions. Tibbetts said he had no issues with answering further questions.

The trooper made a variety of inquiries, including Tibbetts' travel plans and whether he had anything he should not have in the car. Tibbetts handed over prescription pills for which he did not have a prescription and, ultimately, methamphetamine. Tibbetts filed a motion to suppress arguing his statements and the methamphetamine were the product of an unlawful detention that exceeded the scope of the trooper's original justification for the traffic stop. The district court concluded a reasonable person in Tibbett's situation would have felt free to leave after the trooper bade him farewell and turned to go, meaning Tibbetts consented to answering further questions voluntarily. Tibbetts appealed.

The Wyoming Supreme Court noted Tibbetts did not contest the trooper's initial reasonable suspicion for speeding, but rather that the trooper unlawfully extended the detention without reasonable suspicion of criminal activity after the speeding investigation was complete. The Court disagreed with this contention, finding instead that the investigative detention ended when the trooper wished Tibbetts a good day and told him to drive safely. At that point a new, consensual interaction began because Tibbetts was free to leave, but agreed to speak further with the trooper at his request; he was under no obligation to do so according to the Court. Tibbetts focused on the fact that the trooper's overhead lights were still on and that the officer did not let him begin to leave, e.g. begin to drive away. These arguments fell on deaf ears as the Court noted no authority was cited for these arguments and pointed out that the trooper clearly indicated he could leave: he bid him a good day, turned away and began walking toward his cruiser. The overhead lights are but one factor in the totality of the circumstances analysis and in this case they were not "coercive." The Court affirmed the lower court.

Helpful Drugged Driving Opinion

The Ohio Supreme Court recently issued a ruling that I believe is a great example prosecutors can look to in difficult DUI cases. Check out the summary below that was completed by Holly Reese, TSRP in Ohio, and Beth Barnes, TSRP in Arizona. Notice especially that the conviction was secured without a toxicology result. This is a fantastic example of a prosecutor utilizing all the resources available to get a conviction in a difficult DUI case. The training and experience of so many of our officers are powerful tools in our cases. Are we utilizing these tools effectively? Or are we simply hitching our wagons to a chemical test result? The reasoning in this opinion is helpful on many fronts to us here in Utah. Let me know if you have any questions or want to talk about these issues in more detail.

-Tyson

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State v. Richardson, No. 2016-Ohio-8448, 2016 WL 7645344, a case of interest recently issued by the Ohio Supreme Court.

In a 4-3 decision, the court held expert testimony is not required for a conviction of driving under the influence of a drug.  Evidence establishing the defendant’s impairment, together with his admission to taking hydrocodone, was sufficient to sustain the conviction. 

This opinion may be useful for its persuasive value in any state that does not have a published opinion addressing the necessity of expert testimony in a DUI drug case.  Further, even though it was not the focus of the opinion, it is worth noting that there were no blood or urine toxicology results in this case.  Nonetheless, the evidence was sufficient for conviction.  This is a good example of the fact that we prove impairment in a DUI drug case through the officer and that thorough documentation of impairment and the use of the SFSTs leads to and sustains convictions.

Here is a summary of the opinion.

FACTS:  Richardson rear-ended a vehicle stopped at a red light.  When the driver of the other vehicle approached, she noted his speech was slurred and that Richardson dropped all his documents as he attempted to exchange information.  After the victim returned to her car, she felt it move as though nudged by Richardson’s truck.

When the investigating officer arrived, he noticed Richardson had slurred speech and that he singed his hair as he tried to light a cigarette.  The officer had to put Richardson’s truck in park because Richardson had failed to do so.  When asked to exit the truck, Richardson slid out.  He failed the SFSTs, admitted he had taken pain medication (30 milligrams of hydrocodone) and refused the offered blood test. 

During trial, Richardson testified he had a prescription for hydrocodone acetaminophen, but claimed he had taken the medication two days before the collision.  He asserted he was merely suffering from withdrawal at the time of the collision and that he had been taking the hydrocodone for so long that he no longer experienced its side effects.  A doctor who specialized in chemical dependence testified Richardson’s behavior on the date of violation was consistent with the effects of hydrocodone withdrawal but inconsistent with impairment.  The trial judge convicted Richardson who later appealed.

ANALYSIS AND HOLDING:  Finding the evidence sufficient to sustain the conviction, the Ohio Supreme Court reversed the 2^nd District Court who had vacated the conviction.  The Ohio Supreme Court found the evidence established Richardson ingested hydrocodone which impaired his driving. 

Richardson’s admissions proved he had ingested hydrocodone.  Additionally, the evidence of impairment was “significant and sufficient.” This included evidence that Richardson rear-ended another vehicle, had slurred speech, slid out of his truck, and singed his hair while attempting to light a cigarette.  He exhibited 7 of 8 cues on the walk and turn and showed signs of impairment on the one leg stand.  Based on his experience, the officer testified it was his belief Richardson was under the influence of narcotics.

The court specifically noted that “When the effects of a drug are sufficiently well known - as they are with hydrocodone - expert testimony linking ingestion of the drug with indicia of impairment is unnecessary. “In this case, the testimony of the experienced, well-trained officer was sufficient lay testimony connecting Richardson’s impairment to the hydrocodone.”

DUI Blood Draw and Urine Evidence Handling Training

     Currently there is an 18-23% rejection rate for biological samples submitted to the Utah Bureau of Forensic Toxicology (“Tox Lab”) for testing. The main reasons are incomplete labeling and improper packaging, though sometimes container breakage or leakage is the cause. While a law enforcement agency may re-submit a rejected sample, initial sample rejection obviously causes inefficiencies for the submitting law enforcement agency, the Tox Lab, and prosecutors who timely need the test result for their blood-draw or urine sample DUI prosecutions.

     To reduce the rejection rate, UPC teamed up with our partners at the Tox Lab, UHP, and Utah Highway Safety Office to create a training which will be taught to law enforcement at regional trainings throughout our state. The hour-long training consists of slides showing proper labeling and packaging, and examples of common mistakes. Also, we will show an eight-minute instructional video demonstrating correct labeling and packaging. Related case law will also be taught.

     Prosecutors will be informed when the training is scheduled to be taught to law enforcement agencies in their jurisdictions. If you would like to see the materials or if you have any questions or input, please send an email to eberkovich@utah.gov  These trainings will be funded by an NAPC/NHTSA Cooperative Mini-Grant that UPC applied for and received. The trainings will be taught by Gambrelli Layco, Tox Lab Director, Edward Berkovich, TSRP, and a law enforcement phlebotomist from the jurisdiction where the class is taught.