Wednesday, January 19, 2005

Another way to win a DUI case on appeal...

... be a councilman and be illegally stopped!

From The Morning Call -- January 19, 2005
Nesquehoning ex-official's DUI conviction tossedFormer councilman's stop was unlawful, court says.By Bob LayloOf The Morning CallState Superior Court on Tuesday overturned the drunken driving conviction of a former Nesquehoning councilman, ruling a police officer did not have enough evidence to pull him over.But the three-judge panel's ruling on Eugene Rutch was split.Justices Michael T. Joyce and Susan P. Gantman found there wasn't enough evidence for Weatherly Patrolman Robert Christman to stop Rutch on Aug. 17, 2002.They cited a 2001 case in which the state Supreme Court ruled police must show a driver had ''careless disregard'' for people or property to be stopped. They also acknowledged they have struggled to apply that decision.At trial, Christman said he followed Rutch for about a quarter mile and watched him cross the yellow center lines and the white line on the right side of the road twice. He said Rutch completely crossed the white line once and drove on the shoulder.Christman said there were no parked cars or pedestrians along the road. He also said one car passed Rutch in the opposite lane and did not have to swerve.Christman said Rutch failed sobriety tests so he took him to a hospital to have blood drawn. Rutch's blood-alcohol ratio was 0.186 percent, according to the test. At the time he was arrested, state law considered a driver too drunk to drive with a ratio of 0.10 percent; the ratio has since been reduced to 0.08 percent.Carbon County Judge Roger N. Nanovic convicted Rutch.Rutch's lawyer, Robert T. Yurchak, argued the ''minute deviations of tire movement'' did not warrant a stop and anything less than perfect driving would create probable cause.Judge John T. Bender, who dissented with the other two justices, wrote that Rutch's driving had more than ''minute deviations.''''The bottom line in this case is that [Rutch's] vehicle was essentially weaving as he traveled over a quarter-mile stretch of a straight road, at least partially leaving his lane of travel on four separate occasions over that short distance,'' Bender wrote.But under the state Supreme Court ruling, Bender found the facts of the case do not show careless disregard for the safety of people or property.''The irony of the situation is that we would likely find probable cause … if an oncoming car had passed [Rutch's] car while [Rutch's] tires were on the center line,'' he wrote.He also wrote there would have been probable cause if a person or parked car had been along the road when Rutch's tires crossed the white line.He suggested the Supreme Court or state lawmakers revisit the issue of traffic stops to strike a balance between a person's constitutional right against unreasonable search and seizure and the state's safety concerns.He also wrote it would help justices as they ''weigh the myriad of factual scenarios presented to us.''District Attorney Gary F. Dobias, who prosecuted the case, could not be reached Tuesday.As part of Rutch's appeal, Yurchak also argued that the state has a conflict of interest prosecuting DUI cases because it sells liquor. He had argued it should not be allowed to profit from both.Since Yurchak did not cite case law, that part of the appeal was dismissed.Had the conviction been upheld it would have been Rutch's second for DUI and he would have faced a mandatory minimum of 30 days in prison.But he has more legal trouble.He is scheduled for trial next month on disorderly conduct, persistent disorderly conduct and public drunkenness charges stemming from a traffic stop last year in which he was a passenger in a car. Nesquehoning police said Rutch swore at them and threatened their jobs after they stopped a car he was in on Sept. 23.

9 Comments:

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