In an unusual public disagreement among the San Luis Obispo Superior Court’s judiciary ranks, Presiding Judge Barry LaBarbera bluntly reversed a trial court decision by Judge John Trice in a Nov. 19 appellate court ruling.
Judge Trice’s initial ruling on April 15 unexpectedly granted defense attorney Darryl Genis’ motion to suppress breath test evidence in the DUI case of Robert Sproston.
Genis had argued that the Pismo Beach Police Department and arresting officer William Garrett—now retired—had deliberately and systematically failed to give the Trombetta advisement, which is a state-mandated policy that requires officers to inform DUI suspects they have the right to a roadside or laboratory blood test. Only blood, and not breath, can be preserved and re-tested by an independent lab.
Though the Trombetta advisement is still on the California books, the case that inspired the policy was later overturned by the U.S. Supreme Court. Accordingly, most officers don’t face legal consequences for failing to give the advisement, a mistake seen by judges as a typically minor statutory violation.
Mere statutory violations aren’t a legally permissible reason to suppress evidence; only “deliberate and systematic” constitutional violations rise to that legal standard.
In the decision, LaBarbera wrote that Genis “cites no case authority which would transform a statutory violation into a violation of the U.S. Constitution.” The decision overcame the heavy legal presumption in favor of trial court rulings.
Genis said he was surprised, but pleased, by Judge Trice’s trial court decision, and disappointed by Judge LaBarbera’s subsequent appellate reversal—the first time he’s lost on appeal in his almost 33 years as a lawyer, he added.
“We need more judges with the courage of Judge Trice,” Genis said. “We have seen time and time again that judicial coddling of law enforcement only encourages illegal police behavior.
“The law enforcement community—cops, DAs, and ex-DAs who are now wearing black muumuus—don’t like to make rulings that make the prospect of making a conviction more difficult,” Genis said.
Sproston’s breath test—which showed he had a blood alcohol content of .21 or .22—had been tossed out by Trice, but LaBarbera’s appellate decision readmitted the breath test and remanded the case back to SLO Superior Court.
Chief Deputy District Attorney Jerret Gran said the DA’s Office was pleased with the appellate court’s ruling, but had no comment on the facts of the case, as it’s an ongoing legal matter.
Genis, on the other hand, was dismissive of the DA’s role in reversing Trice’s ruling.
“Even a ham sandwich could have convinced the appellate panel to reverse the trial court on a decision that favored a citizen accused of drunk driving,” Genis said.