Wednesday, April 4, 2018

New Jersey judge has been barred from hearing drunk-driving cases because of his own DUI, but that does not seem to apply to Missouri prosecutor Nicholas Jain

A New Jersey judge has been barred from hearing drunk-driving cases after being charged with a DUI himself. That same standard apparently does not apply in Missouri, where Greene County Assistant Prosecuting Attorney Nicholas Jain merrily pursues drunk-driving cases, even though he has a DUI conviction on his own record.

In fact, Jain pursues such cases even when the trial court properly suppresses evidence and kicks the charge for lack of probable cause. In a recent case involving a driver named Charles Hollis Roux, Jain and his boss (Prosecuting Attorney Dan Patterson) appealed the trial court's ruling, and the Missouri Court of Appeals ignored its own precedent to overrule the trial court. (See here, here, and here.)

Roux, by law, could not go to trial, but he was forced to last week anyway, and he pleaded guilty to two minor charges -- failure to register vehicle and failure to equp vehicle with approved tail lamp. Judge Margaret Palmietto took the DUI charge under advisement.

Jain and Patterson brought an "assault of a law enforcement officer" charge against my wife, Carol, without probable cause. Now, they've done it again in the Roux case. It appears Patterson has no integrity and little knowledge of the law -- and he's hired a staff of young sprouts who are as empty headed as he is.

Consider Jain's arguments in the suppression hearing before the trial court. (Documents are embedded at the end of this post.) He relies on Chancellor v. Lohman (Director of Revenue) , 984 SW 2d 857 (Mo. App., W.D., 1998) and states: "In Chancellor, the court found a deputy was correct in arresting a Defendant based on the deputy's observations and the Defendant's admissions, even though the deputy did not perform standardized field sobriety tests. 'Such tests are not mandatory. They merely are an aide to an officer's other observations in determining whether he has probable cause for an arrest.'"

Chancellor involved a DUI conviction at trial, not a hearing on a motion to suppress, so it is inapposite to the situation in Roux.

Jain also cites Streicher v. Director of Revenue, 276 SW 3d 386 (Mo. App. ED, 2009), which states "field sobriety tests are not mandatory to determine probable cause." Streicher involved both an administrative-law proceeding, where Streicher's license was suspended, and a trial, where his license was reinstated. That is way out of line with the facts in Roux.

Even if one applies the "field-sobriety tests are not mandatory" findings, that was not the only reason the trial court found lack of probable cause in Roux. From a motion filed by defense attorneys Dee Wampler and Scott B. Pierson:

Most concerning are the facts that Deputy Flora knows nothing as to the workings of the portable breath test machine. He testified he was unaware of when his personal PBT machine had been last calibrated. He further admitted it had been months before use in this case that his personal PBT machine had last been calibrated. . . . He did not know how the machine worked, but did know that it will at times indicate the presence of alcohol other than ethanol alcohol. He further admitted the the PBT is only a tool for showing the presence of alcohol and is not to be used to determine a level or degree of impairment.

Mr. Flora also testified that there were multiple indicators that Mr. Roux was not impaired. There were no indications of slurred speech or for that matter any issues with speech. No issues with walking, balance or evidence of swaying. The Defendant properly pulled over, and there were no driving issues.

In addition to indicators that Roux was not impaired, the trial court likely saw signs that the deputy was not credible. Missouri law holds such findings are to be left to the trial court's discretion, absent clear error. The controlling law is stated in many cases, including York v. Dir. of Revenue, 186 S.W. 3d 267 (Mo. banc, 2006):

The Supreme Court deferred to the circuit court's credibility determinations and found that the circuit court acted within its discretion when it ruled that the portable breathalyzer test evidence was not credible.

The Missouri Supreme Court in York upheld the trial court's finding of lack of probable cause to arrest for suspicion of DWI. Finding the mere fact that an individual has bloodshot, watery and/or glassy eyes, the smell of alcohol on the breath and admits to drinking does not require a finding of probable cause to arrest.

Bottom line: Nicholas Jain's argument to the Missouri Court of Appeals was watery and weak, and Charles Hollis Roux never should have gone to trial on a case where probable cause clearly was lacking.

(To be continued)

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