October 10, 2013 By Matthew Wallin

Federal DUI Conviction Upheld after Defendant was Taped Using Toilet

If you are in a United States park, you can be prosecuted at the federal level for driving under the influence of alcohol. What’s bizarre about a recent case heard by the U.S. 9th Circuit Court of Appeal is that while in police custody, the defendant was secretly being videotaped by a surveillance camera while using the toilet in a holding cell. She claimed “outrageous government conduct.” She also claimed the government failed to act timely in prosecuting her under the Speedy Trial Act pursuant to 18 U.S.C. Section 3161(d)(2) and appealed her case. Her conviction was affirmed.

United States v. Nickerson, 2013 U.S. App. LEXIS 20009 (9th Cir. Cal. Oct. 1, 2013)

In early 2008, Cassandra Nickerson was arrested in the Presidio, a federal park in San Francisco, and she was charged with three Class B misdemeanors under the Code of Federal Regulations for driving under the influence of alcohol, driving with blood alcohol content (BAC) greater than .08, and failing to maintain control of a vehicle.

She failed field sobriety tests at the scene conducted by a U.S. park police officer. She was transported to the police station where she was placed in a holding cell and secretly videotaped using a surveillance camera. A real-time monitor was available to all officers on duty, including both male and female officers.

While Nickerson was in the holding cell, she used the toilet. This use was recorded by the motion-sensitive video camera. On the video footage, Nickerson could be seen looking toward the glass window while she was using the toilet. She said she was apprehensive that someone might pass by in the hallway and see her through the glass window.

How Did the Federal Court of Appeal Rule?

The 9th Circuit rejected the defendant’s contention that the charges should have been dismissed based on outrageous government conduct that “shocks the conscience” and warrants dismissal under Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). She claimed there was no connection between the government’s conduct (videotaping her using the toilet in a police holding cell) and the criminal proceeding that followed resulting in her conviction.

The 9th Circuit Court held: “Although Nickerson argues for the first time in her reply brief that the challenged conduct in fact was related to the prosecution or investigation of the charges against her, Nickerson waived this argument by failing to present it to the District Court, and failing to raise it in her opening brief before this Court. Further, the evidence in the record and the findings of the trial court support the conclusion that the government was not attempting to collect evidence through the videotaping and did not do so.”

Additionally, the court ruled that 18 U.S.C.S. Section 3161(d)(2) does not use the word “offense,” which the Speedy Trial Act defines to exclude Class B misdemeanors. The defendant’s charges, operating a motoring vehicle under the influence of alcohol in violation of federal law pursuant to 36 C.F.R Section 1004.23(a)(1); operating a motor vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. Section 1004.23(a)(2); and failure to maintain control of a vehicle in violation of 36 C.F.R. Section 1004.22(b)(1) are all considered Class B misdemeanors and are therefore exempt from a 70-day trial time limit mandated by Section 3161.

The charges against the defendant were therefore properly allowed to proceed despite the failure to adhere to the time limit set forth in that paragraph of the Speedy Trial Act.

Criminal Defense Attorneys at Wallin & Klarich Can Make Every Possible Argument That Could Lead to Your Acquittal at Trial

This case illustrates the importance of having an experienced criminal defense attorney to represent you if you are facing criminal charges at either the state or federal level. Had Ms. Nickerson made the outrageous government conduct claim at the trial level, she may have been able to persuade the district court to dismiss her case. She did not and was denied on this claim at her appeal.

Moreover, you have a constitutional right to a speedy trial if you are charged with committing a crime. Our attorneys at Wallin & Klarich will protect your rights to make certain you are treated fairly during every step in your criminal proceedings.

Contact a Southern California DUI Defense Attorney at Wallin & Klarich Today

If you or someone you care about has been accused of driving under the influence, you could be prosecuted for violating either state or federal law depending on the circumstances of your offense. Hiring an experienced DUI crimes defense attorney from Walling & Klarich could mean the difference between your conviction and your acquittal at trial.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, the criminal defense attorneys at Wallin & Klarich have over 30 years of experience analyzing evidence to determine what defenses are available to you. We will aggressively pursue every option. We may be able to argue for a reduction or dismissal of your charges. If your case does go to trial, we will employ every available strategy that could lead to you being found not guilty.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

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