News from Minnesota
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Driving as necessity to escape abuse not a defense to DWI charges
Court: Minnesota Court of Appeals
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| The Court of Appeals of Minnesota published an opinion on Monday, June 10, 2013, which ruled that the use of necessity as a defense against a driving while intoxicated (DWI) charge would not be allowed. The charges arose from an altercation between Jennifer Marie Axelberg and her husband, Jason Axelberg, at their family cabin in Kanabec County on May 30, 2011. The couple had returned to the cabin, after spending time drinking alcohol at a resort which was less than a mile away, when an argument they were having turned physical.[4]
Mrs. Axelberg claimed that her husband pushed her and struck her twice in the head, which led to her husband eventually pleading guilty to a charge of domestic assault. He had possession of her cell phone and was blocking entry into the cabin. Since it was dark, Mrs. Axelberg was unfamiliar with the terrain, and she feared that her husband could outrun her if she fled, Mrs. Axelberg decided that her only option was to jump into their car and lock the doors. Her husband was not deterred, however, and pounded on the windshield with his fists, causing it to crack in a "spider pattern".[4] With her husband still on the hood of the vehicle, Mrs. Axelberg drove less than a mile, back to the resort the couple had left earlier that evening. Mrs. Axelberg explained that she felt her husband would break into the car and that driving while intoxicated was her only way to escape him and avoid further abuse.[4]
Mrs. Axelberg's husband followed her to the resort and, only after a bystander called police and stopped the him from acting aggressively toward his wife, did police arrive and arrest the couple. Mrs. Axelberg was arrested for suspicion of driving while impaired, and her husband was arrested for domestic assault and disorderly conduct.[4] At trial, Mrs. Axelberg attempted to raise the affirmative defense of necessity to avoid the DWI charge. The state district court, however, "sustained the revocation of [Mrs. Axelberg's] driver's license," according to the published opinion.[5]
In successfully asserting necessity as an affirmative defense, the criminal actor is admitting that the criminal acts took place, but is stating there was no legal alternative which would have avoided the imminent physical harm that would have befallen the criminal actor had they obeyed the law. According to the Minnesota Court of Appeals opinion, other elements must also be proved; such as, "that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law" and that "there was a direct causal connection between breaking the law and preventing the harm."[5] The opinion further stated that the necessity defense is unavailable to one whose "own negligence or recklessness" caused the action that was necessary.[5]
The Minnesota Court of Appeals, in denying Mrs. Axelberg's ability to assert the necessity defense, looked to the implied-consent statute that was at issue in this case and determined that the state legislature specifically listed factors that could be considered in applying the statute, thus excluding issues not so identified.[5] The Court of Appeals also stated that Mrs. Axelberg's actions threatened to cause her injury, the very thing that she was trying to avoid, but also risked injury to others who may have been on the road.[5] According a video on the Fox 9 News site, Mrs. Axelberg plans to continue fighting this decision, taking it to the Minnesota Supreme Court.[4] |
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News from New York
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Ruling makes green the new yellow for New York City taxis
Court: State of New York Court of Appeals
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| Those sunny-colored taxi cabs are as synonymous with New York as the Empire State Building and Central Park. However, a June 6, 2013 ruling by the State of New York Court of Appeals found a plan to add a new green cab service to be constitutional. The court's ruling reversed the findings of the New York Supreme Court. The lower court sided with yellow cab owners who filed a lawsuit to prevent the enactment of the Hail Accessible Inter-borough Licenses (HAIL) Act. The act seeks to improve service for passengers in the city of New York's outer boroughs and increase the number of cabs accessible to persons with disabilities. Cabs bearing the new medallions will also be able to provide service when hailed from the street by passengers in these areas. The HAIL Act calls for 18,000 permits to be issued, over three years, for the new apple green cabs.
New York's yellow cabs are regulated by the Taxi and Limousine Commission (TLC). Vehicles bearing a medallion charge uniform rates and are equipped with a meter. The medallion allows these cabs the right to pick up passengers, who might hail a passing cab on the street, anywhere in the city. Yellow cabs pick up 95 percent of their passengers from the two Queens airports or the central business district of Manhattan. This has resulted in limited cab service in many parts of city. Cabs and limousines not bearing a medallion, known as livery vehicles, who pick up riders when hailed on the street or at New York City's two airports, risk being fined by the TLC.
Since 1956, the New York City Council has been responsible for issuing medallions to yellow cabs, establishing yellow cab regulations and adjusting limits on the number of yellow cabs permitted to operate within the city. The suit brought by yellow cab medallion owners alleged the HAIL Act was unconstitutional because it interfered with matters of local concern, and as such, violated the New York Constitution. In his ruling, Judge Arthur F. Engoron, assigned judge for the civil term of the New York Supreme Court 1st Judicial District noted, "The court has trouble seeing how the provision of taxi service is a matter that can be wrenched from the hands of city government where it has resided for some 75 years. And be handed over to the state."[6]
However, in overturning the ruling of the lower court, the opinion written by Appeals Court Judge Eugene Pigott states:
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. . .the HAIL Act addresses an issue of substantial State concern. . .Millions of people from within and without the State visit the City annually. Some of these visitors are disabled, and will undoubtably (sic) benefit from the increase in accessible vehicles in the Manhattan central business district and in the outer boroughs. The Act is for the benefit of all New Yorkers, and not merely those residing within the City. Efficient transportation services in the State's largest City and international center of commerce is important to the entire State. The Act plainly furthers all of these significant goals.[7] [8]
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The ruling reversed the prior findings of Judge Arthur F. Engoron and found the HAIL Act to be constitutional. The sale of medallions under the HAIL Act has already begun. Medallions for 6,000 new apple green cabs will be issued later this month. |
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News from New Mexico
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Search warrants can now be approved by telephone in New Mexico
Court: New Mexico Supreme Court
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| Gone are the days of envelopes, stamps, and knowing the name of your postman. E-mails, text messages, and telephone calls have replaced letters as the most popular forms of interpersonal communication. Writing, or words written on a piece of paper, has one last stronghold that seems impenetrable: the law. The law and its oftentimes complex procedures rely extensively on tangible documents, particularly in the area of criminal law. Traditionally, to obtain a search warrant, an officer had to swear out an affidavit providing the particulars giving him or her reason to believe a person placed an item in a certain location which was either illegal to possess or was used in perpetration of a crime. This affidavit had to then be presented in person to a neutral magistrate for approval. This time-honored tradition arose from the text of the Fourth Amendment itself. However, the New Mexico Supreme Court has recently ruled that magistrates can approve search warrants over the telephone.
On June 10, 2013, Justice Barbara J. Vigil's opinion reversed the New Mexico Court of Appeals decision invalidating a search warrant obtained after a magistrate gave approval over the telephone. The case at issue involved animal cruelty. In 2008, Lester and Carol Boyse were charged with 52 counts of felony animal cruelty and 55 counts of misdemeanor animal cruelty. Neighbors complained of a foul odor coming from the Boyse home and Carol gave a police officer Jeff Gray permission to search the property, during which he found dead and mistreated animals. Gray was instructed by his supervisor to obtain a search warrant anyway, however.
Though Gray did complete the written sworn affidavit to present to a magistrate, by the time he was finished the magistrate was off duty. Gray instead called the magistrate and received approval via telephone based on the phone conversation only. Though the Boyses entered pleas of no contest (while affirming their right to appeal), they nonetheless moved to suppress the evidence obtained during the search, arguing that the search warrant was defective. The trial court disagreed, but the New Mexico Court of Appeals found in their favor, indicating "a judge must see the written application for a warrant before issuing it."[9]
When the state appealed to the New Mexico Supreme Court, that court, in a 5-0 unanimous decision, held that the phone conversation between Gray and the magistrate was sufficient to issue the search warrant. Justice Vigil wrote:
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We are unpersuaded by any of the policy arguments that defendants advance under federal law and other jurisdictions outside New Mexico to support their claim that the telephonically approved search warrant in this case should be invalid.[9][8]
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The court found that the "telephonically approved search warrant" was "consistent with the New Mexico Constitution and with defendants' rights as outlined in the Fourth Amendment of the U.S. Constitution."[9] It seems that the decision has some basis in criminal procedure, as well. Vigil's opinion stated:
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The New Mexico Supreme Court] recently amended our rules of criminal procedure for the district courts to specifically recognize the process of requesting and approving search warrants through remote means, including by telephone.[9][8]
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News from Georgia
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Georgia road project may use school taxes, thanks to constitutional amendment
Court: Georgia Supreme Court
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| The first time the Georgia Supreme Court ruled on the Atlanta BeltLine development project, it said that the road could not be funded by property taxes collected by Atlanta Public Schools, since those dollars were for educational purposes only. That was in 2008.
Discontent with the ruling, business and political leaders who supported the development project in the BeltLine and Perry-Bolton tax allocation districts (or, "TADs"), went to the Legislature. The General Assembly passed a constitutional amendment that was then ratified by voters in a 2008 statewide ballot referendum. The new law allows the city to borrow school tax funds for redevelopment projects.
The Supreme Court, on June 3, 2013, approved the BeltLine project, reversing their own decision due to the changed law.
Associate Justice David Nahmias cited a 1911 Georgia case, Hammond v. Clark, explaining,
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The Georgia Constitution ‘is the supreme State law,’ and our Constitution can be amended to make constitutional things that were once declared by this Court to be unconstitutional.[10][8]
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[11] |
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News from Louisiana
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Truck stop tiger may need to find a new parking spot
Court: Louisiana First Circuit Court of Appeal
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| Patrons of Louisiana's Tiger Truck Stop expect the usual amenities when they pull into the parking lot: diesel pumps, snack food, restrooms, tire service—and maybe some quality time with a 550-pound Bengal-Siberian tiger.[12]
The truck stop, a well-known tourist attraction in Iberville Parish run by Michael Sandlin, has boasted ownership of caged tigers since 1988, even breeding thirteen of its own cubs on location. But due to a recent ruling by the First Circuit Court of Appeal, the operation may be asked to forfeit its last feline.[12][13]
In 2006, Louisiana passed a law limiting the possession of "big exotic cats"—but Sandlin, having hosted tigers at his truck stop for decades, was grandfathered in and allowed to maintain his exhibit. Five years later, a slew of objections from animal rights organizations brought the issue in front of District Judge Michael Caldwell, who agreed that the 2006 law barred the Department of Wildlife and Fisheries from renewing the owner's permit to house tigers. His state permit was revoked, though he still holds a federal permit.[12][13]
Upon appeal, a panel of First Circuit judges ruled on April 25 to uphold Caldwell's ruling, and after being pressed to reconsider their decision they refused without comment to do so on June 7.[13]
Sandlin's attorney, Jennifer Treadway Morris, says that another appeal is in order.
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We’re going to go all the way to the U.S. Supreme Court if necessary.[13][8]
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News from California
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California court allows prisoner to reclaim confiscated werewolf erotica
Court: California First District Court of Appeal
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| The California First District Court of Appeal has ruled that the werewolf erotica novel, The Silver Crown, is not obscene and should be available to California inmates at the Pelican Bay State Prison if they so desire. The ruling favors Andres Martinez, an inmate at the prison in Del Norte County, whose erotica novel was confiscated by prison authorities in 2011 on the grounds that the novel was obscene and would likely incite violence. The First District Court sided with the inmate, finding that the book does not lack "serious literary, artistic, political, or scientific value" and therefore cannot be labeled as obscene. The court also did not believe the book was likely to incite violence, as there are books in the prison's library with higher levels of graphic violence than The Silver Crown.[14]
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We conclude first that the prison failed to abide by governing statutes and regulations in judging the book to be obscene. And we go on to find that the book is not obscene applying the correct definition, and further that it is not likely to incite violence. We therefore grant the writ and order the Warden to give the book to petitioner.[14] - Justice James Richman[8]
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