Sleeping It Off in Your Car Can Be DUI (and a Statutory Presumption that Defendants with Prior DUIs who Refuse Breathalyzer Tests Were “Under the Influence” Is Not PLAINLY Unconstitutional)

Anthony Bell v. District of Columbia (decided February 25, 2016)

Players: Chief Judge Washington, Associate Judge Thompson, and Senior Judge Newman. Opinion by Judge Thompson. Joseph A. Scrofano for Mr. Bell. Trial Judge: A. Franklin Burgess, Jr.

Facts: Police found Bell asleep in the driver’s seat of a car that was parked outside a nightclub shortly after closing time, with the car keys in his pocket. They had difficulty rousing him, and upon removing him from the vehicle, noted a strong smell of alcohol and slurred speech by Bell. Bell failed the standardized field sobriety tests, was arrested and advised of his rights under D.C.’s Implied Consent Act, D.C. Code § 50-1905. He refused to consent to a breathalyzer test. Bell’s defense was that he was tired from working long hours and in a very deep sleep from which it was difficult to awake. He said he refused the breath test because he had consumed “a couple of beers” and “figured that it would register[.]” Finding “overwhelming” evidence that Bell—who had a prior DUI conviction— was under the influence, the trial judge found him guilty of DUI.

Issue 1: Was Mr. Bell “in actual physical control of the vehicle” as required by the DUI statute, D.C. Code § 50-2206.11?

Holding 1: Yes. Following the factually indistinguishable case of Berger v. District of Columbia, 597 A.2d 407 (D.C. 1991), the Court of Appeals concluded that Bell was in “actual physical control” of his car because he was alone, behind the steering wheel, and had the car keys in his pocket. Thus, he “was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive.”

Issue 2: Does the Implied Consent Act’s statutory presumption that individuals with a prior DUI conviction who refuse a breathalyzer test are “under the influence” unconstitutionally shift the burden to such defendants to prove their innocence?

Holding 2: Not in this case. Reviewing for plain error, the Court of Appeals held that the statutory presumption is not plainly unconstitutional because it is not plainly a mandatory presumption. Without deciding this unpreserved issue “definitively,” the Court noted that despite the mandatory-sounding statutory language, the presumption appears to be treated in practice as a constitutionally acceptable permissive presumption. The Red Book, for example, instructs that when a defendant with a qualifying conviction refuses to submit to chemical testing, jurors “may, but are not required to, conclude that s/he was under the influence.” In this bench trial, moreover, the judge’s ruling made clear that he did not treat the presumption as mandatory in finding Bell was under the influence.

Of Note:

• The Court does not “definitively” hold that the Implied Consent Act’s presumption is always constitutional. If, in a case where the presumption applies, the jury is not instructed with the Red Book’s permissive language, or in a bench trial the judge makes findings that suggest she felt bound by the presumption to find the defendant “under the influence,” defense counsel should object on constitutional grounds.

• The Court of Appeals noted that Bell was found “in the upright position of one intending to drive, rather than a reclined position” that might indicate “he lowered his seat back in order to sleep for a while.” One could use this footnote to attempt to distinguish other cases of intoxicated persons sleeping in a parked car’s reclined driver’s seat or where there are other indications that the person had no intention of driving the car. FT

Read full opinion here.

Sticks and stones may break my bones . . . but words will be punished more severely . . . when used in lieu of sticks or stones . . . to complete a robbery in D.C.

In re Z.B. (decided February 4, 2016).

The Players: Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Pryor.  Opinion by Senior Judge Pryor.  PDS for Z.B.  Trial Judge: Florence Y. Pan.

Facts:  The complaining witness flagged down a police officer to report the robbery of his cell phone moments earlier.  Ensuing radio broadcasts described “three young black male” suspects, including one six-foot-two-inches-tall seventeen-year-old, wearing a black jacket and blue gloves.  Following these broadcasts (which failed to mention the cell phone), two officers stopped Z.B., who was shorter than 6’2”, wearing one aqua and blue glove and a black ski mask that exposed his face, and carrying a cell phone that he put in his pocket upon seeing the police.  

The police brought the complaining witness to Z.B.’s location for show-up identification.  Upon positive identification, police placed Z.B. under arrest, at which point he asked: “How you going to say I robbed somebody?”  Subsequent search of Z.B.’s person revealed a cell phone that the complaining witness identified as his own. 

The trial court denied Z.B.’s motion to suppress the identification, his rhetorical question, and the cell phone recovered from him, as the fruits of an illegal stop under the Fourth Amendment.  It further adjudicated Z.B. involved with robbery, receiving stolen property, and two counts of misdemeanor threats to do bodily harm. 

Issue 1: Whether the trial court erred in denying Z.B.’s motion to suppress.

Holding 1: No.  “Applying the familiar Terry measure of total circumstances, we conclude that the evidence supports the trial judge’s finding of reasonable articulable suspicion of criminal activity afoot to justify a temporary stop.”

Issue 2: Whether Z.B.’s adjudications for robbery and misdemeanor threats to do bodily harm merge.

Holding 2: No.  Threats and robbery do not merge under Blockburger because each includes an element that the other does not.  Z.B.’s argument that it is an “absurd result” to punish the robber who uses threats more severely than the robber who uses force “misses the mark” because it fails to appreciate that the former has “not only committed an assault but also committed threats.”  WC

Read full opinion here.

You can burglarize a coal yard or a lumber yard, but not a construction site.

George Sydnor v. United States (decided January 14, 2016)

Players: Associate Judges Fisher and Easterly, Senior Judge Pryor. Opinion by Judge Fisher. PDS for Mr. Sydnor. Trial Judge: John McCabe.

Facts: Mr. Sydnor entered a fenced-in construction site owned by Nicholson Construction Company and took six steel pipes. He was arrested shortly thereafter, and was charged with and convicted of burglary.

Issue 1: Did Mr. Sydnor's actions constitute burglary, where a person who breaks and enters a "yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade" with the intent to commit an offense is guilty of burglary? More specifically, was the construction site a place where goods or chattels were kept "for the purpose of trade?"

Holding 1: The construction site was not a place where goods or chattels were kept "for the purpose of trade," and so Mr. Sydnor could not be guilty of burglary for his actions there. The Court, in its de novo analysis of the meaning of that clause of the burglary statute, held that "for the purpose of trade" means goods that will eventually be bought or sold. It rejected the interpretation that the government urged: that any goods used in business -- i.e., a trade -- were covered. Applying the principle of "ejusdem generis," the Court held that by naming lumber and coal, Congress indicated that the "goods or chattels" in such a yard had to be commercial objects, like lumber or coal, that would be bought and sold. In this case, none of the items in the construction site were intended for commercial sale; they were stored there to be used in the construction project. Mr. Sydnor's conviction for burglary therefore must be vacated.

Issue 2: Was Mr. Sydnor nevertheless guilty of unlawful entry?

Holding 2: The court seemed to doubt that unlawful entry was a lesser-included offense under the Blockburger test, but because Mr. Sydnor had requested an unlawful entry instruction at trial the Court found that Mr. Sydnor was precluded from raising that argument on appeal. The Court then analyzed the sufficiency of the evidence that Mr. Sydnor committed unlawful entry and found it sufficient. It remanded the case for the court to enter a judgment of guilty on unlawful entry. SN

Read full opinion here.

No residue (or other additional evidence), no crime for possession of drug paraphernalia.

DeAndre Brooks v. United States (decided January 28, 2016).

Players: Associate Judges Blackburne-Rigsby and McLeese, Senior Judge Farrell. Opinion by Judge McLeese.  Trial Judge: Truman A. Morrison, III. Jamison Koehler for Mr. Brooks.

Facts: United States Park Police were searching for robbery suspects and encountered Mr. Brooks and three other men. When police asked them to stop, Mr. Brooks began to walk away, and after an officer touched Mr. Brooks’s shoulder, Mr. Brooks “swatted” away the officer’s hand and struck the officer’s forearm. Officers attempted to arrest Mr. Brooks, but he “flailed about, kicking and trying to break free.” Eventually, police placed him under arrest. During the search incident to arrest, an officer with twelve years experience investigating drug offenses found in Mr. Brooks’s pants pocket “a metal grinder with a picture of Bob Marley on the front that is commonly used for grinding up marijuana.” At trial, another officer who had been involved in over 500 drug operations, testified that he had recovered grinders numerous times, that grinders are commonly used to grind up marijuana by people who smoke marijuana, and that there typically is green plant material in the grinders police find on people. Police also seized a black ski mask and four cell phones from Mr. Brooks.

Following a bench trial, the trial court found Mr. Brooks guilty of both possession of drug paraphernalia and assault on a police officer. The trial court explained: “I find that although there is not a rich amount of detail about Bob Marley grinders, the last witness has told us that he has seized them on many occasions, that they are commonly used to grind marijuana and I think that is enough to infer an intent to use in the absence of any other explanation emerging from the evidence that would cast a doubt on that[.]”

Issue 1: Was the evidence sufficient to convict Mr. Brooks of possession of drug paraphernalia?

Holding: No. D.C. Code § 48-1103(a)(1) makes it “unlawful for any person to use, or to possess with intent to use, drug paraphernalia” to “process,” “prepare,” “contain,” “or otherwise introduce into the human body a controlled dangerous substance.” Despite viewing the evidence in the light most favorable to the government and that a trial court’s factual findings after a bench trial will not be reversed unless “plainly wrong or without evidence to support [them],” D.C. Code §17-305(a), the Court of Appeals determined that there was insufficient evidence to show that Mr. Brooks intended to use the grinder in a manner prohibited by D.C. Code §48-1103(a)(1). The Court concluded that “there was no evidence that anyone saw Mr. Brooks use the grinder in any way,” “that Mr. Brooks made any statements suggesting an intent to use the grinder for drug-related purposes,” or “that Mr. Brooks possessed or used drugs, either at the time of the offense or at any previous time.” 

The government argued that his intent to use the grinder could be inferred from three pieces of evidence: “(1) the grinder bore the likeness of Bob Marley; (2) an experienced narcotics officer testified that people who smoke marijuana commonly use grinders to grind up marijuana, and (3) another experienced narcotics officer testified that he had recovered grinders numerous times.” The Court disagreed with all three arguments. First, the Court reasoned that even if it is commonly known that Bob Marley is “virtually synonymous” with marijuana, at trial the United States did not introduce any such evidence and did not ask the trial court to take judicial notice of such an association. Ultimately, the Court stated that the picture of Bob Marley on the grinder served “only as an unexplained identifying characteristic, similar to color or physical description, with no independent significance.” Second, the Court stated that the evidence did support a conclusion that there is an association between grinders and marijuana, but that alone is not sufficient, as drug use can be associated with a wide array of items and there needs to be additional evidence. And third, as to the officer testifying that he had recovered grinders numerous times, the Court noted that his testimony also was that those grinders contained green plant material in them, whereas there was no suggestion in the present case that the grinder recovered from Mr. Brooks had such material in it. Lastly, the Court said that it was unaware of “any case upholding a conviction for possession of drug paraphernalia based solely on evidence that a single item possessed by the defendant is commonly used for drug-related purposes.”

Issue 2: Did the trial court err in refusing Mr. Brooks’s request for a continuance?

Holding: No. The government charged Mr. Brooks in the present case on January 16, 2014. After a status hearing in March, 2014, Mr. Brooks rejected a plea offer in this case and trial was set for June 6, 2014. In the meantime, the government charged Mr. Brooks in a number of other cases. On June 4, 2014, Mr. Brooks filed a motion to continue trial because he had “not yet received a global plea offer to resolve all matters,” that he was represented by a different attorney in one of the cases, and that it was “likely that these matters can be resolved short of trial.” That same day, the government communicated via email a global plea offer, and the trial court denied the continuance. On the day of trial, Mr. Brooks’s trial attorney orally renewed the motion to continue, and explained that the most recent plea offer was not valid, as it required Mr. Brooks to plead guilty to being a felon in possession of a firearm, but that he had not actually been charged with that offense and did not have a prior felony conviction. The trial court informed counsel that it had scheduling concerns and asked how likely it was that an agreement could be reached. Defense counsel said she would have to discuss that with Mr. Brooks. The trial court agreed to briefly pass the case, but indicated it would not grant a continuance in the absence of an assurance that a plea agreement was likely. When the parties returned after the break, defense counsel made no further representations about a plea agreement and trial began.

The Court of Appeals held that the trial court did not abuse its discretion in denying the request for a continuance. The Court explained that denial of a request based on a desire to continue plea negotiations is “different in character from the kinds of prejudice reflected in cases in which this court has reversed,” such as a request to obtain a witness whose testimony could exonerate the defendant, or a request because new counsel needed the opportunity to be prepared to rebut the government’s evidence.

In the present case, the Court determined there was no abuse of discretion in the trial court’s decision for three reasons. First, despite acknowledging the importance of plea bargaining, the Court reasoned that defense counsel “was unable to provide any concrete assurance” about “the likelihood that a global plea agreement would be reached.” Second, the Court noted that the written motion for a continuance was not filed until two days before trial, which was the last day on which such a motion can typically be filed pursuant to Super. Ct. Crim. R. 111(c). The Court stated “that defense counsel could have been more diligent in trying to work out a plea agreement before the trial date, as well as on the trial date.” And third, despite the fact the government did not oppose the request and there was no suggestion that Mr. Brooks was acting in bad faith, the Court concluded that the trial court “reasonably pointed out that trial in this case would only take a few hours and that routinely continuing such minor matters in the hope of obtaining a global plea agreement involving more serious charges could cause delay and congestion on the court’s calendar.” Ultimately, the Court believed that the trial court “reasonably balanced the relevant considerations and acted within its discretion to deny the request for a continuance.”

Of Note:

• The Court, citing a number of cases from other jurisdictions, made it clear that to convict someone of possession of drug paraphernalia, a single item by itself likely will never be sufficient. It contrasted cases where evidence was found to be insufficient when police found a single pipe, or a syringe, but nothing else, with cases where the evidence was sufficient where police found a needle and syringe and the defendant had track marks on his arm, or a syringe and aluminum bags with traces of heroin, or a scale and glass pipe near a large quantity of crack cocaine. 

• When asking for a continuance based on a desire to continue plea negotiations, the Court “assume[d], without deciding, that a defendant in some circumstances might be able to establish that a continuance to permit further plea bargaining was ‘reasonably necessary for a just determination of the cause.’” (quoting Kyles v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). The Court also cited Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012), where the Supreme Court reiterated the “‘central role plea bargaining plays in securing convictions and determining sentences.’” If you are seeking a continuance based on a desire to continue plea negotiations, try to do so as soon as practicable, and be sure to make a clear record as to exactly what the prejudice will be to your client if the court denies the request and the chances of an agreement being reached. See Daley v. United States, 739 A.2d 814, 817 (D.C. 1999) (discussing relevant factors in determining if a trial court abused its discretion in denying a request for a continuance, including “the reasons for the request,” “the prejudice resulting from its denial, the party’s diligence in seeking relief, any lack of good faith, and prejudice to the opposing party”). BM

Read full opinion here.