Our client was facing a mandatory four days in jail for a first offense DUI with a tough judge. He had submitted to a breath test at the jail that was well in excess of the .15 limit for aggravated DUI. Our attorneys were able to find defects in the police procedures used including a violation of his Miranda rights. As a result, the government agreed to an amendment to drop the aggravating circumstance. He received a sentence that included no jail time. The government also agreed to allow him to drive legally using an interlock device during his forty-five day license suspension.
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As part of our pilot project to “open source” our pleadings, here is the motion that was filed in this case that led to the amendment:
Commonwealth of Kentucky
Fayette District Court
Case Number REDACTED
Commonwealth of Kentucky
Motion to Exclude the Results of the Breath Test Obtained in Violation of Due Process; Motion to Exclude Statements in Violation of Miranda; Motion in Limine to Exclude Non-Probative Field Sobriety Tests
Ritchie Puhtino, through counsel, requests that this honorable court enter an order excluding the results of the Intoxilyzer 5000 test performed in this case. The test performed violated Ritchie’s right to due process and freedom from search and seizure under the Fourth, Fifth and Fourteenth amendment to the United States Constitution, Section 12 of the Kentucky Constitution, KRS 189A.010(f), KRS 189A.105, Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Gray v. Commonwealth, 2013-SC-000374-MR (Ky. 2016), and Birchfield v. North Dakota, 579 U.S. ____ (2016). In support of this motion, counsel pleads the following:
- Ritchie Puhtino is a twenty-nine-year old member of the Lexington community. On Redacted, Puhtino was detained due to suspicion of driving under the influence.
- Officer Redacted served as the lead officer on this case. Upon making contact with Mr. Puhtino, Officer Redacted began questioning Mr. Puhtino. The contents of this interrogation are available on body camera footage that has been provided by the prosecution.
- Officer Redacted asked Ritchie to exit his vehicle and submit to a number of standard field sobriety tests. At this time, Ritchie visibly needed to urinate. He was shaking and bouncing in the unmistakable gait of someone with a very full bladder. He expressed to Officer Redacted and other officers that he would happily comply with his testing if the Officer would just let him urinate.
- The officers, armed with deadly weapons, tazers, and other implements for enforcing compliance, sternly informed Ritchie that he could not use the restroom and then complete the field sobriety tests. Multiple police cars with lights flashing had encompassed him at this time.
- Ritchie slowly began to walk toward a business, intending to use the restroom. Officers physically restrained him. At this point, having no other choice Ritchie urinated on himself.
- Officers continued to interrogate Ritchie after the forced self-soiling. Ritchie, feeling he had no choice, submitted to the tests.
- Officers arrested Ritchie and drove him to the detention center.
- At the detention center, during the required observation period, the officer read the following warning to Ritchie:
I will be requesting that you submit to a test of your breath, blood or urine, or any combination of these tests. If you refuse to submit to any test which I request, your refusal may be used against you in court as evidence of your violation of KRS 189A.010 and your driver’s license will be suspended by the court at the time of arraignment, and you will be unable to obtain an ignition interlock license during the suspension period. If you are convicted of KRS 189A.010, your refusal will subject you to a mandatory minimum jail sentence, which is twice as long as the mandatory minimum jail sentence that would be imposed if you submit to all requested tests.
- Ritchie after being required to soil himself and being told that he would face further incarceration if he did not comply with the officer’s breath, blood, or urine test, agreed to consent to Officer Redacted’s tests.
- During this time period, Ritchie remarked that he felt that he had no choice but to go with the officer’s test. Therefore, Mr. Puhtino’s consent to testing was not voluntary. Because the implied consent form read by Officer Redacted was unconstitutionally defective, the appropriate remedy is suppression of the test result.
Officer Redacted’s Custodial Interrogation Unlawfully Coerced Ritchie Puhtino Into Consenting To Tests He Did Not Have to Perform
In 2016, the Supreme Court of Kentucky decided the case of Commonwealth v. Gray, 2013-SC-000374-MR (Ky. 2016) . In Gray, the Court held that a defendant’s confession and the fruits of that confession should have been suppressed by the trial court. Mr. Gray was accused of having murdered his parents. During their interrogation of Mr. Gray. the police fabricated evidence showing that a DNA test performed by the KSP lab had established that the victim’s DNA was found on Mr. Gray’s clothes. They presented these falsified reports to Mr. Gray and as a result of these reports, Mr. Gray confessed to the murder. The Court held that this amounted to an unconstitutional deprivation of Mr. Gray’s right to due process and as a result the Court held that the confession should have been excluded at trial and reversed the conviction.
At the same time, the Supreme Court of the United States decided the case of Birchfield v. North Dakota, 579 U.S. ____ (2016). In Birchfield, the Supreme Court examined the case of three defendants: Mr. Birchfield, Mr. Beylund, and Mr. Bernard. Mr. Beylund and Mr. Bernard’s cases are of particular releRedacted to our analysis. In Birchfield, the Supreme Court held that no law can be created which requires a defendant to submit to a blood test. They further held that with respect to Mr. Beylund (who had submitted to a blood test then challenged the constitutionality of an implied consent law requiring that he submit to such a test) that his case must be remanded for a determination of whether Mr. Beylund’s consent was voluntary in light of the fact that he had been inaccurately advised by a police officer that failure to submit to a blood test would lead to incarceration.
Subsequent to these decisions becoming final, Ritchie was arrested in this case. He was read an inaccurate implied consent warning that informed him that he would be receiving double the mandatory minimum jail sentence if he refused to comply with the officers requested blood, breath, or urine test.
The implied consent warning read by Officer Redacted, which purports to be an official statement of the law is erroneous in multiple ways. First, under Birchfield, the government can no longer compel anyone to take a blood test. A warrant is required. Officer Redacted told Puhtino, after detaining him and requiring him to soil himself, that he could require him to submit to a blood test—this simply is not true. Any consent obtained after reading an unconstitutional statement of the law on what appears to be an official declaration of law cannot be considered voluntary, and therefore, the results of this warrantless search of Ritchie should be suppressed.
The implied consent form Ritchie did not sign is a patently coercive advisory. Self-evidently, a suspect’s agreement to a chemical search of his person is not “free and unconstrained” (Schneckloth, 412 U.S. at 225) when he is told that the only alternative is criminal prosecution and doubled imprisonment. Thus, the Supreme Court has said that when a “witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt,” the resulting statements are “the essence of coerced testimony.” New Jersey v. Portash, 440 U.S. 450, 459 (1979). And other courts, following that lead, have not hesitated to hold—in circumstances far more ambiguous than those at issue here—that when a statement by a police officer “indicates that there are punitive ramifications to the exercise of the constitutional right to refuse consent,” those actions are coercive. Eidson v. Owens, 515 F.3d 1139, 1147 (10th Cir. 2008) (citing United States v. Sebetich, 776 F.2d 412, 425 n.21 (3d Cir. 1985); United States v. Haynes, 301 F.3d 669, 687 (6th Cir. 2002) (Boggs, J., concurring in part).
Indeed, the threat of criminal sanctions is coercive; fundamentally, “[d]uress consists in actual or threatened violence or imprisonment.” Black’s Law Dictionary (10th ed. 2014). Indeed, it is a basic principal of ordered society that laws, and the criminal sanctions that apply when they are broken, are meant to compel citizens to do some required acts (like paying taxes) and to refrain from doing other forbidden acts (like stealing property). Plainly enough, “the coercion of the law is by criminal punishment.” District of Columbia v. Brooke, 214 U.S. 138, 151 (1909). That observation is beyond cavil. See, e.g., Madeira v. Affordable Hous. Found., 469 F.3d 219, 239 (2d Cir. 2006) (observing that the law’s threat of “punishment for a criminal act” is a “coercive measure”); Albright v. Oliver, 975 F.2d 343, 347 (7th Cir. 1992) (the threat of “criminal punishment” is a “form of public coercion”) aff’d, 510 U.S. 266 (1994).
After being forcibly detained, required to soil himself, and being read an unconstitutional implied consent statement, Ritchie was in no place to refuse consent after being threatened with increased incarceration for not complying with an unconstitutional search.
Officer Redacted’s Custodial Interrogation Began Prior to Miranda. The Use of Physical Coercion and Humiliation Render Subsequent Miranda Warnings Insufficient to Remedy The Initial Violation
Further, the fact that Ritchie’s restraint from being able to urinate is a form of custody under Miranda v. Arizona, 384 U.S. 436 (1966). By restraining Ritchie from using the restroom, forcing him to urinate on himself, officers placed Ritchie into custody. By continuing to interrogate him and require him to perform field sobriety tests, the initial detention of Ritchie was converted to a custodial interrogation, trigger Mr. Puhtino’s fifth and fourteenth amendment rights. While officers did subsequently Mirandize Mr. Puhtino, the subsequent conduct of Ritchie proves that he at no point knowingly and voluntarily waived those rights. Ritchie is visibly confused throughout the interrogation. His body language is consistent with a man that is defeated and going through the motions. After being humiliated on a public road in day light, Ritchie felt that he had no choice but to comply with all tests and answer all questions. An after-the-fact reading of Miranda is insufficient to dispel the taint of the officer’s initial conduct when the defendant so
clearly does not understand the Miranda waiver that was offered to him.
The Probative Value of The Field Sobriety Tests Performed by Ritchie is So Minimal As To Fail KRE 403
“Tests” of physical agility such as the walk-and-turn test and the one-leg stand can create a strong impression of guilt in front of the jury. This is despite the fact that the Kentucky Court of Appeals (in the unpublished opinion Hardin V. Com., 2007 WL 79055 (Ky. Ct. App 2007)) has suggested that the results of the “tests” should be limited to the observations of the officers, not a “pass/fail”. As Mr. Puhtino was manifestly physically affected by his urgent need to urinate at the time, the results of a physical agility test, and even an officers observation of said tests, should be excluded for lacking probative evidence.
WHEREFORE, counsel for the defendant requests an order excluding the results of the breath test performed in this case at trial, suppression of Mr. Puhtino’s statements, and restrictions upon the officers testimony as to Mr. Puhtino’s performance of the field sobriety tests.
Case Resolved: September 2017
Lead Attorney: Bradley Clark
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