Thumbs Up to Sleeping at the Wheel

FROM NEW MEXICO SUPREME COURT:

An intoxicated motorist passed out in a vehicle can’t be convicted of drunken driving without evidence the person intended to drive, the state Supreme Court ruled Tuesday.

The court, in an unanimous decision, overturned the drunken driving conviction of Mark Sims, who was found asleep behind the steering wheel of his vehicle in 2004 in an Albuquerque parking lot. His keys were on the passenger seat.

The justices used the case to outline a new standard of evidence that police and prosecutors need to show that a motorist was “actually, not just potentially, exercising control” of the vehicle and had the “general intent to drive so as to pose a real danger to himself, herself or the public.”

New Mexico has long had among the nation’s worst drunken driving problems, ranking 11th in 2008 for the number of DWI fatalities per 100,000 population.

Police awoke Sims, who acknowledged that he had been drinking and he failed field sobriety tests. He had a blood-alcohol level of more than twice the state’s limit for legally establishing intoxication.

Sims entered a conditional plea of guilty to a DWI charge in Bernalillo County Metropolitan Court but appealed on the question of whether he had physical control of the vehicle.

The justices reversed a 2007 ruling by the state Court of Appeals, which had upheld Sims’ conviction and concluded there was nothing to prevent him from awakening and driving from the parking lot.

The Supreme Court disagreed.

“We do not believe that the Legislature intended to forbid intoxicated individuals from merely entering their vehicles as passive occupants or using their vehicles as temporary shelters,” the court said in an opinion written by Justice Edward Chavez.

In Sims’ case, the court said, “it was pure speculation whether defendant would rouse himself and drive the vehicle. Defendant could not be convicted for what he might have done.

From this link.

For Arkansas Attorneys: New Appeal Rules

The Arkansas Supreme Court released new rules for Appellate Briefs.  Make sure you comply.  Among the changes, the rules allow for an increase in pages allowed (30) and font size is now 14.

Read the new rules in their entirety by clicking here.

REVERSED AND DISMISSED! I won an appeal for my client today.

The appeal was based on the trial court’s failure to exclude an alleged accomplice’s testimony from consideration when making its ruling.  Ark. Code. Ann. 16-89-111(e)(1)(a) states that before a conviction can be had on the testimony of an accomplice, there must be corroborating evidence tending to connect the defendant with the commission of the crime.

The Arkansas Appeal court agreed that there was scant or no evidence connecting my client to the commission of the crime.

You can read the opinion here.

The case was tried at the level by Bill Lewellen and myself.

The local paper, The Evening Times, reported on the story here.

Supreme Court weighs Arkansas lethal injection rules

By: Associated Press – Texarkana Gazette -

Published: 10/09/2009

LITTLE ROCK—The Arkansas Supreme Court listened Thursday as lawyers argued whether a new law fulfills its aim by clarifying the state’s lethal injection procedures or puts death-row inmates at greater risk of suffering unconstitutional harm.

A federal public defender for death-row inmate Frank Williams Jr. claimed the new law puts additional mental stress on all condemned inmates, and public defender Josh Lee claimed it strips away regulations that required the state prison system to use a three-drug cocktail approved by the U.S. Supreme Court.

“Under the new statute, we have no way of knowing what procedure will be used,” Lee said. Without that oversight, he said the risk of botched executions grows. He mentioned a recent Ohio case where an inmate undergoing a failed lethal injection wept as executioners stuck him with needles as many as 18 times.

Nevertheless, the justices’ questioning appeared to give the state an edge.

Justin Allen, the state’s chief deputy attorney general, said there would be no repeat of the Ohio case in Arkansas. Allen said the new law passed by the Legislature this year made public the amount and kind of drugs used by executioners and that the state’s prison director couldn’t use “rat poison” or anything else to execute prisoners, as he would be subject immediately to a federal lawsuit.

“As a practical matter, Larry Norris or any other prison director would be out of his mind not to follow” the law, Allen said.

Justice Robert L. Brown said he agreed with Allen’s point, one of the few moments that indicated what the justices thought.

The justices gave no indication of when they might rule.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution. They argued the state prison system had altered its execution protocols without following a requirement that state agencies offer notifications and hold public hearings when they change administrative rules.

A lower court judge issued an injunction halting Williams’ execution and the case quickly made its way to the state’s highest court. While there, lawmakers passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution

Arkansas Supreme Court reinstates felony conviction of former prosecutor

By John Lyon
Arkansas News Bureau

LITTLE ROCK — The state Supreme Court today reinstated the felony manslaughter convictions of a former prosecutor who killed an elderly couple in a head-on car crash in Perry County.

The state’s highest court overturned an Arkansas Court of Appeals ruling that threw out Vance Benton Rollins Jr.’s two felony manslaughter convictions in connection with a March 22, 2006, accident that killed Lawrence Humphries, 76, and his 69-year-old wife, Nina.

Rollins, a former Ouachita County deputy prosecutor and Camden city attorney, was sentenced to eight years in prison for the crash, but in February the Court of Appeals modified his conviction from two felony counts of manslaughter to two misdemeanor counts of negligent homicide and reduced his sentence to one year in jail.

The appeals court said prosecutors never proved their assertion that Rollins was impaired by drugs at the time of the crash, only that he was driving badly.

The state appealed, and in a 6-1 decision Thursday the Supreme Court reversed the appeals court and reinstated Rollins’ felony convictions and eight-year prison term.

In the majority opinion written by Justice Elana Cunningham Wills, the court said according to evidence presented at Rollins’ trial, hydrocodone and acetaminophen pills and pipes that tested positive for cocaine residue were found in Rollins’ vehicle after the crash. Also, blood tests detected small amounts of Zoloft and cocaine in Rollins’ system.

A forensic toxicologist testified at the trial that she could not be certain Rollins was impaired. Asked how long the drugs would have to be in a person’s system before blood tests could no longer detect them, the toxicologist said it would take over eight hours.

The jury could infer from the testimony that Rollins had taken drugs within eight hours of getting behind the wheel, the Supreme Court said. That inference, combined with witnesses’ statements that Rollins was driving erratically before the crash, could support a finding that Rollins recklessly caused the Humphries’ deaths, the court said.

“While no evidence was presented of Rollins’ level of impairment or intoxication from ingesting cocaine, we note that such evidence is not necessary to sustain a conviction for reckless manslaughter,” Wills wrote in the majority opinion. “Rather, the state needed only to prove that Rollins recklessly caused the death of another person.”

Chief Justice Jim Hannah wrote in a dissenting opinion that he believed the Court of Appeals’ ruling should be upheld.

Because the state did not establish that Rollins was intoxicated, the issue of driving under the influence was “a closed question,” and all that remained of the state’s case was evidence of bad driving, which falls under the legal definition of negligence, Hannah said in his dissent.

“The majority rewrites the statute and judicially creates criminal liability for manslaughter contrary to the elements of the crime set out in the statutes enacted by the General Assembly,” Hannah wrote.

October 2007 Appellate Update now online

Get it here.

Arkansas Appellate Update — September

The Arkansas Appellate Update for September is available here.

OF NOTE:

Seely v. State [Confrontation Clause; hearsay testimony] The trial court erred when it permitted a social worker to testify about out-of-court “testimonial” statements made by a child victim to the social worker during a sexual-abuse evaluation because such hearsay testimony violated the Confrontation Clauses of the United States and Arkansas Constitutions. The appeals court explained that “when the context of the questioning is for the purpose of establishing past events potentially relevant to later criminal prosecution, then the questioning is inherently testimonial.” (Langston, J.; CACR 06-1318; 9-26-07; Robbins).

Bob Cole Bonds, Inc., v. State [bonds] Pursuant to Rule 9.2 of the Arkansas Rules of Criminal Procedure, an appearance bond guarantees all subsequent appearances of the defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand. Thus, the trial court erred when if found that a written confirmation was needed from the bonding company for a defendant’s bond to continue while he was pursuing an appeal following the entry of a conditional guilty plea. (Sutterfield, D.; CACR 06-1371; 08-29-07; Bird).

Tommy L. Gullahorn v. Gail A. Gullahorn: [UCCJEA] The trial court determined that Arkansas had continuing jurisdiction over this child-custody case because the appellee mother remained in Arkansas even though the appellant father and child had moved to Texas. In the majority opinion, the Court of Appeals said the trial court should have made a factual determination of the propriety of the Arkansas court’s continued jurisdiction. The trial court has the discretion to exercise, or to decline to exercise, jurisdiction over the case, and it was remanded for findings regarding the extent or significance of the appellant’s and the child’s connections with Arkansas.(Pierce, M.; No. CA06-1258; 8-29-07; Baker)