• AZ cop makes the “Tambellini error”; doesn’t inquire into Khabby’s back problems

    by Tyler Dellow • June 8, 2010 • Uncategorized • 12 Comments

    Janice Johnston of CBC has more on Khabibulin’s upcoming hearing:

    According to a police report, an officer stopped Khabibulin after he was found driving at a high rate of speed. The goalie was clocked as driving as fast as 70 mph in a 45 mph zone.

    The officer smelled alcohol and thought he had watery eyes. Khabibulin admitted drinking one glass of wine.

    The officer conducted a field sobriety test even though Khabibulin told him he’d just had back surgery in January.

    Court documents obtained by CBC News show a defence expert is prepared to testify that studies from the National Highway Traffic Safety Administration in the U.S. say standard field sobriety tests should not be given to people with back problems.

    These tests — known as the walk and turn, one leg stand and finger to nose — cannot be performed correctly by people with back problems. The results would be no indication of impairment, and therefore meaningless, Khabibulin’s lawyer Mark Dubiel states in the document.
    Back surgery in January

    Dubiel also argues the officer had no legal right to test Khabibulin, as he did not have probable grounds to make him take the sobriety test.

    Khabibulin did not “exhibit any reasonably trustworthy signs of impairment.” His face wasn’t flushed, nor did he slur his speech. He was polite and co-operative with police, the document states.

    Since taking the test violated the hockey player’s constitutional rights, all evidence that came out of the seizure should not be allowed, including results from a blood alcohol test police said was over the legal limit of 0.08.

    Generally speaking, the police need to have reasonable and probable grounds to search you. This includes making you give a breath sample or sample of blood. The argument that Khabibulin is making is that the police officer did not have reasonable and probable grounds to force him to submit to a blood test. I’m not really wowed by the argument, although I expect his lawyer will be arguing that if the cop thought he had reasonable and probable grounds before making Khabibulin do the field sobriety tests, he wouldn’t have bothered doing them. The counter-argument, I suppose, will be that the speeding and the officer’s observations as to what Khabby smelled like gave him grounds to demand a blood sample.

    My gut feeling is that (taking the speed as being provable), travelling at 40 km/h over the limit and smelling like booze ought to be reasonable and probable grounds for taking a breath or blood sample from someone to see if they’re impaired. Gut feelings and law, however, only rarely coincide so I’m not making any sort a prediction based on that. I’ve made an effort to get a copy of the court filings in the hopes that they’ll contain some Arizona case law that I can read and comment more intelligently on.

    About Tyler Dellow

    12 Responses to AZ cop makes the “Tambellini error”; doesn’t inquire into Khabby’s back problems

    1. June 8, 2010 at

      I said it on LT and I’ll say it here:

      “Sneaky fuckin’ Russian.”

      If Khabby gets off, I fully expect Sheriff Joe to track him down and bring the dirty Red to justice. But this time… It’s personal.

      Seriously though, mad props for your efforts to suss out AZ law for the benefit of the unwashed masses. I expect very few hockey-blogospheres have their own personal Cousin Vinny.

    2. June 8, 2010 at

      Just posturing to get a favourable plea bargain?

      Seems to me that it’s a tenuos defense, as the officer stated he smelled alcohol and khabby displayed watery eyes. Both grounds for testing no?

      Should a judge turn a cold shoulder to the back surgery angle, I’m guessing good will might be thin in sentencing considering the guilty was attempting to have the case thrown out and failed.

      Plea bargain posturing seems most likely to me, being a non lawyer of course.

    3. Tyler Dellow
      June 8, 2010 at

      Danny –

      What will be grounds for testing depends on the case law and what the judge believes from the officer’s evidence. If, for example, she didn’t believe him that he was speeding and didn’t believe him that he smelled alcohol, things get a little different. It’s tough to forecast.

      As far as the sentencing goes, my understanding is that the extreme DUI is a mandatory 30 days in the clink. I don’t have a sense of how likely a plea bargain is here – I don’t know what the practice of the prosecutors is. I would think though, that if there was a deal to be had, it might have been had by now, before Khabibulin starts investing the heavy resources in defending this.

    4. June 8, 2010 at

      Sorry for continuing and I understand if you arent interested in engaging in legal discussions with someone speculating… however ill post anyhow.

      All the judge has to do is believe the officers initial findings of glossy eyes and alcohol smell, and the breathalyzer is justified.

      The defense are probably saying that the officer didnt order a breathalyzer until after the roadside tests, so he likely wasnt suspicious enough without the improperly adminstered tests, and suspicion thereafter was based on erroneous results.

      But that seems like a stretch to me. Logically it holds water, but its going to be hard to prove that the officers initial findings werent enough to request a breathalyzer, irregardless of the further roadside tests.

      I googled the requirements for an officer to request a breathalyzer, and found this

      finally since the extreme DUI corroborates the likelihood of the officers findings that havent been contested (glossy eyes and smell), are the defense barking up a fruitless tree?

      The only way his rights were violated, is if the breathalyzer was based entirely on the findings of the roadside testing yes?

    5. Tyler Dellow
      June 8, 2010 at

      No, I love talking about this stuff Danny. I did a moot in my second year of law school that involved a question of whether cops were justified to search someone’s car for drugs. It was based on this case, in which the cops searched a car because: “On the back seat he saw what he claimed were several indicators that the appellants might be drug couriers: cell phones, a pager, a road map, some fast food wrappers and two duffel bags. Osborne also thought that the Lincoln seemed too expensive “for what the driver and the passenger looked to me”.”

      I’ll digress here briefly to say that I got off one of my favourite lines in court while we were doing this. I was arguing the defence side and the woman arguing the prosecution side had some elaborate and well thought out analogy about how a police officer is like a doctor and stuff that seems to us to be innocuous – like a guy who has a duffel bag, a map and a cell phone – to a cop SCREAMS drug trafficker. Like how a doctor knows that pain in the left arm means heart attack.

      Anyway, the bench is nodding away at this. The problem she has that success rates on these indicia are pretty low – like 1/100 or 1/150. So I get up and point out that the success rates are pretty low when we searched based on garbage in the car and that when doctors had diagnostic rates in that vicinity, their next step was apply to leeches to get the bad humours out. Big laugh from the bench.

      ANYWAY, I’m inclined to think you have it right – the cop probably had enough from the glassy eyes, smell of booze and speeding to warrant a breathalyzer. I can’t believe that AZ case law prevents cops from being able to blood/breath test people in those circumstances, although I can’t believe about 85% of what goes on in Arizona. Unlike in the (long and unnecessary) anecdote above, smelling of booze, speeding and glassy eyes seem to me to be objective things on which a cop might rely.

      Assuming, of course, that he’s telling the truth. For all we know, he pulled over Khabby’s car because it was expensive looking and everything else is made up after the fact. It’s telling, I suppose, that they don’t seem to challenge that he was speeding.

      I’m inclined to agree with the analysis in your last line, although I don’t know the precise exclusionary rules in Arizona. In Canada, if your rights are violated under the Charter, the Court then weighs the breach and how serious it is to determine whether the evidence should be excluded.

      I’d really like to see what, exactly, the issues are. I see now that a case just came out holding that cops need a warrant to draw blood in Arizona – if they don’t, the evidence is out. Without knowing precisely what Khabibulin’s issues are, it’s very tough to suss out the odds of success.

    6. Tyler Dellow
      June 8, 2010 at

      Danny-

      Here’s a similar decision that makes an interesting read. Looks like you and the Tenth Circuit Court of Appeals take a similar view.

    7. June 8, 2010 at

      Thanks Tyler. Interesting stuff. I guess theres a lot of variables the public don’t know, but after sussing things out a little, the defense seem to be taking a stretch approach here.

      In law school, are defense attorneys cautioned against some defense tactics in fear of aggravating the presiding judge, and tempting heavier sentencing? I mean, is it likely that a failed attempt to have a case thrown out, could reap stiffer reprimands, when bargaining in good faith may have invited leniency? Or is this a situation where the penal code makes sentencing straight forward, and theres no risk to aggravating a judge.

      Maybe the arresting officer has a track record and this is a bit of smoke and mirrors leading up to completely discrediting him during trial?

      lol :)

    8. Tyler Dellow
      June 8, 2010 at

      Law school isn’t really where you learn how to practice law, it’s where you learn the theory. I understand though that there’s some thinking that you pay a price when you take a matter to trial and lose.

      Where it gets tricky is with stuff where there’s political interference. DUI is a politicized crime and there will be pressure on Crowns not to plea bargain these cases. There may be a policy against it. There’s mandatory jail time attached to the specific charge he’s faced with. The net effect is people pushing on to trial with weaker defences because there’s no attractive deal available.

      This, incidentally, costs us all money in terms of requiring more resources for the court. Khabibulin is 37 years old. This is, as far as I can tell, his first DUI. Because of the threat of jail time and of screwing up his career, he needs to fight this tooth and nail. Arizona taxpayers pay the cost of this.

      Is this a good use of public money? I genuinely don’t know but it bothers me that we approach these issues (and we’re on the same road the Americans are on, we’re just 25 years behind) as if there are no costs associated with being tough on crime. There are and they can be significant. If there’s no benefit – and I’m not sure what the benefit is to jailing an (apparent) first time offender – you have to ask whether the money could be better spent elsewhere.

    9. June 8, 2010 at

      ahhhh bingo. You answered the question i was slowly building towards right there…. are they desperate?

      The political reasoning really explains a lot and makes it seem like the defense are tossing up a hail mary.

      Maybe he catches a Mark Bell kinda break where they structure his sentence as to not interfere with his employment. Maybe not. Then theres the criminal record and Canadian border thing.

      Should be interesting (though it rarely ever actually turns out to be).

      Cheers

    10. dawgbone
      June 9, 2010 at

      Khabibulin allegedly consented to the field sobriety test.

      What sort of impact does that have?

    11. Matt.N
      June 9, 2010 at

      I am hoping the defence brings some kind of history of back problems to the table. Citing his surgery history going back to Chicago and making some point about him being long term disabled and unable to perform the sobriety test.

      It would be great fun to present that to Tambo and Khabbys agent.

    12. slipper
      June 20, 2010 at

      Let us not forget that Khabibulin’s blood alcohol percentage should be considered irrelevant because he has won a Stanley Cup.

    Leave a Reply

    Your email address will not be published. Required fields are marked *